Wrong emoji can land you in prison or facing a lawsuit

BOSTON — Emoji are the new language of our times, from laughing 😂 and hearts 💞 to anger 😠 and sadness 😢.

According to a research paper published in the Washington Law Review from Santa Clara University, at least 2.3 trillion mobile messages incorporate emoji annually. But U.S. courts are finding more often that some emoji could potentially put you in legal hot water.

David Gerzof Richard, Emerson college professor and CEO of BIGfish PR, tells Boston 25 News, emoji are a second digital language for Millennials and Gen Z, but it’s definitely not a universal language.

“The problems that we get into, is when some of the older generation… start using it,” Gerzof Richard said.

Students in his class say they’ve seen some cringe-worthy examples:

“My mom sends me kissy emojis and that’s weird for me because that’s usually something I reserve for my girlfriend,” said junior Jacob Pazos.

“The best-case scenario is it means nothing, all the way to insulting someone, to cases where there's sexual harassment or threats of physical violence,” said Gerzof Richard.

BRAVE NEW LEGAL FRONTIER

It’s not so far-fetched, even in Massachusetts. In 2014, a jury convicted Franklin Castano of Peabody of killing his girlfriend, Solanlly Paulino. The Superior Court upheld the conviction as a case of premeditated murder, in part, because a friend said Castano sent him an emoji with the eyes X-ed out the night Paulino died.

In California, a man was convicted in a prostitution case after sending a crown, high heels and a bag of money.

According to the most recent statistics available, the number of reported legal cases involving emoji as evidence jumped from 33 in 2017 to 53 in 2018 to 99 last year.

“This area of law is really going to be a whole brave new frontier,” said Boston 25 News legal analyst Peter Elikann. He says the issue is emoji can be easily misinterpreted, even in court.

“It’s fraught with danger, it’s like trying to tap dance on a tightrope really, because you don’t know when you’re actually weaponizing your words,” Elikann said. “It can be considered sexual harassment if you have a kissing emoji, it can be threatening if there’s, say, a skull and cross bones.”

He says it’s also important to remember that emoji leave a digital footprint that could be interpreted very differently down the road, years after you send it, depending on who sees it.

STEPS TO PROTECT YOUR MESSAGES

Elikann and Gerzof Richard say, the first step to protect yourself is think before you hit send.

“Anything that involves fists, guns, or emojis that represent parts of human anatomy that are very adult are places to stay away from,” said Gerzof Richard.

“Certain kinds of fruit, everybody knows what that means, there may be a sexual connotation to it and an older person would have no idea,” said Elikann

Another recommendation: Stay away from emoji in work or school settings

“I personally use emojis a lot and my friend group does and a lot of them are used in quirky ways that could be misinterpreted – so I was like ‘Oops, I do that,’” said Emerson junior Bianca Pardo.

Finally, when in doubt, write it out.

“If you don’t know a language you should always be a little bit cautious of it because the legal ramifications are still real,” said Gerzof Richard. “My best advice is: If you’re not sure about using emojis just don’t do it.”

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