Washington Law Review

Article

Emojis and the Law

October 01, 2018 | 93 Wash. L. Rev. 1227

Abstract:  Emojis are an increasingly important way we express ourselves. Though emojis
may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—
such as whether someone should be obligated by contract, liable for sexual harassment, or sent
to jail.

Our legal system has substantial experience interpreting new forms of content, so it should
be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra
interpretative challenges. This Article identifies those attributes and proposes how courts
should handle them.

One particularly troublesome interpretative challenge arises from the different ways
platforms depict emojis that are nominally standardized through the Unicode Consortium.
These differences can unexpectedly create misunderstandings.

The diversity of emoji depictions is not technologically required, nor does it necessarily
benefit users. Instead, it likely reflects platforms’ concerns about intellectual property
protection for emojis, which forces them to introduce unnecessary variations that create
avoidable confusion. Thus, intellectual property may be hindering our ability to communicate
with each other. This Article will discuss how to limit this unwanted consequence.

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