Emoticons or “emojis” are typically
seen as playful additions to an our daily messages, but their exponentially
increasing popularity has seen them included in everything from work emails to
family chats, utilising emojis in your text messages has quickly developed
serious consequences and many users remain ignorant to the seriousness of an
otherwise playful emoticon.
This has resulted in numerous American
court cases where emojis have been submitted as evidence in a trial, and these
types of cases will quickly reach South African shores where many contracts are
seen to be concluded with a symbolic thumbs-up. While there has yet to be an emoji
related case in South Africa, it is logical to draw an inference that the same
principles would likely apply should our courts be asked to make such a
decision.
Emoticons are not specially classified
under South African law, but they fall within the general definition of a ‘data
message’ in terms of the Electronic Communications and Transactions Act 25 of
2002 (ECTA). While it is doubtful that our legislature will introduce ‘emoji
legislation’, the law will inevitably develop at some stage, most likely
through case law, in a manner where it includes emojis as an integrated part of
our electronic correspondence.
Looking
Internationally
On
the international level, a short, but fascinating, discussion between several
experts in the fields of computer science, hieroglyphics, and social media of
the impact emojis have had on our language can be found here, and it is time that legal experts join these discussions.
The
crux of the discussion is that emojis can have a profound impact on the way we
communicate. Essentially, the inclusion of a single emoji can alter the meaning
of the accompanying text.
In
one case, a couple in Israel was recently ordered by an Israeli court to pay up
to R 30,000.00 in connection with a text that contained emojis that gave
the opposing party an impression that was objectively misleading. After listing
a property in an online advertisement, a landlord, the plaintiff, received a
text from the defendants stating that they were “interested in the house,” just
wanted to “discuss the details,” and asking when a good time would be to do so.
However, the text message was also laden with an array of emojis that were
generally celebratory in nature. The judge noted that the emojis conveyed
“great optimism,” and that, while the message did not create a binding
contract, it caused the landlord to rely on the defendants’ desire to rent the
apartment. The judge further noted that toward the end of negotiations, the
defendants used two “smiley” symbols, which the judge determined to mean that
everything was in order.
In
another instance, during the infamous trial of Ross W. Ulbricht, who was
charged with running a black-market bazaar online, emoji use played a
significant role in communications that were introduced as evidence. Several
communications between Mr. Ulbricht and employees contained various emojis.
When prosecutors simply read the communication between Mr. Ulbricht and an
employee to the jury (“I’m so excited and anxious about our future, I could
burst”), they omitted any reference to the “smiley” emoji that followed. Mr.
Ulbricht’s lawyer objected to the omission and argued that its inclusion was
essential to the meaning of the communication. The judge in the case agreed,
and while she permitted the text to be read aloud, she also instructed the
jurors to read the communications, stating that the jury should note the
punctuation and emoticons.
In Elonis v. United States, a case decided by the U.S. Supreme
Court in 2015, the Supreme Court reversed Elonis’s conviction under federal law
of essentially making threatening communications to injure the person of
another. The primary issue in the case was whether Elonis’s intended to
communicate a “true threat.” Elonis argued that the threatening and violent
posts directed toward his wife were meant in jest because the communication
included a “smiley” emoji sticking its tongue out.
Advertising
Suppliers may not make false,
misleading or deceptive representations in relation to goods and services
(whether expressly or implicitly) under the Consumer Protection Act 68 of 2008 (CPA).
Emojis, which are often capable of multiple interpretations, could result in an
ambiguous representation about goods or services.
In an era where MTN is not
permitted to use the words “best” and “fastest” in relation to their mobile
network, it is evident that the use of words in advertising is considered
seriously by our courts. Emojis could therefore quickly be found combatting the
provisions of the CPA in which any misleading advertisements are dealt with
strictly and where the relative advertisers can face administrative fines
of up to R1 million or 10% of their previous financial year’s turnover or even prosecution.
Similarly, while
the Advertising Standards Authority of South Africa also makes no reference to
emojis, their use would likely be considered in determining whether a
particular advertisement contravenes South Africa Regulations.
Online Transactions
While ECTA does
not specifically refer to misrepresentation, online suppliers, such as Takealot,
must make certain information available on the website where the goods or
services are sold. This includes a sufficient description of the main
characteristics of the goods or services to enable a consumer to make an
informed decision on the proposed electronic transaction and the use of emojis
which amounts to a misrepresentation about the goods and services would
consequently not meet this requirement.
Civil
Damages
Misrepresentation through the use
of emojis could also be the basis for a civil action for delictual damages, if
the misrepresentation is wrongful, either fraudulent or negligent and causes
another person harm, same could easily lead to an appropriate court case.
Furthermore, if the
misrepresentation induced a person to enter into a contract, they would be
entitled to rescind that contract if the misrepresentation was material and the
other party’s misrepresentation was found to be intentional.
Harassment
The Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) specifically
prohibits hate speech and harassment in the context of race, gender and
disability.
More specifically, Section 10
prohibits hate speech on the grounds of race, gender or disability, where it
demonstrates a clear intention to be hurtful, be harmful or incite harm or
promote or propagate hatred. This section currently only refers to the
communication of “words”, but if the issue of hate speech using emojis were to
come before a court, the application of the section may and should be extended.
Claims of hate speech or
harassment under PEPUDA can be instituted before an equality court, which can
make any appropriate order in the circumstances, including the award of damages
to the affected person.
The
Internet and Other Publications
The Films and Publications Act 65
of 1996 regulates the classification and distribution of films, games and
certain publications by the Film and Publication Board (FPB). “Publication” is
extremely widely defined and includes “any message or communication, including
a visual presentation, placed on any distributed network including, but not
confined to, the Internet and could thus easily be interpreted to include
emojis.
In
Conclusion
As the
use of emojis becomes more prevalent in our communications, it stands to reason
that emojis will continue to be seen more frequently in South African courts.
As foreign judges have recognised, the meaning of written communication,
including the writer’s apparent intent, can change entirely based on the
inclusion of an emoji, either for better or worse. The meaning of company
communications, whether internally or to the public, is not limited to a
reading of the letters of the text alone, but can be altered using
capitalization, punctuation, and other pictographic characters, it logically
follows then that a simple emoji can be just as, if not
more, impactful.
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