There have been plenty of, shall we say, unusual or eye-raising legal decisions around technology. Such is the way when a massive industry, if one can reduce “technology” to the singular, which we can’t, utterly changes the way we live (or the way we die, which, according to former Google engineer Ray Kurzweil, may not actually happen).
In recent times we’ve had, rather gloriously, the Spider-Man pointing at Spider-Man meme debated by a judge in Florida, and NFTs (non-fungible tokens) recognised as legal property in the UK. Meanwhile, Elon Musk is, in addition to challenging Mark Zuckerberg to a cage fight and a literal penis-measuring competition, threatening to sue the head of Meta over the company’s Twitter clone, Threads. But the thing that caught my eye last week was a Canadian court decision that ruled a thumbs-up emoji is legally permissible as contract assent. There are more examples of emojis finding their way before the bench. In 2014, a Michigan court tried a defamation case involving a stuck-out tongue emoticon (rendered as :-p). In Ohio, a judgment in a harassment case queried what, exactly, the rat emoji meant in that context.
This is because emojis – as many unfortunates have discovered (often gen X parents, but that I, a millennial in her early 30s, am increasingly, devastatingly, discovering) – do not always have clearcut meanings. This is true of all language of course – and emojis are a type of language, despite what the likes of John Humphrys et al have sneered in the past. A thumbs-up emoji, to take the example from the Canadian case, can, just as in offline life, be used sarcastically. (This was noted in the court ruling.) In some regions such as in the Middle East a thumbs-up can be offensive.
A child of emoticons :-) – that’s an emoticon – emojis seemed, bless, fresh and exciting to me when they arrived in the mainstream. (Their actual genesis goes back to 1999, courtesy of Japanese artist Shigetaka Kurita, and their use was first popularised in Japan. Kurita’s initial collection of 176 images has since been acquired by New York’s Museum of Modern Art.) I first encountered them in 2011, when the latest Apple iPhone operating system offered an emoji keyboard – Android devices followed two years later. (Emojis are distinctly rendered by developers, which is why, say, an apple will look different on Twitter than on a rival platform or device.)
Particularly interesting is the way in which emojis are approved, which is by an industry body called the Unicode Consortium; I like to imagine its members as a bunch of normal-looking suits sitting around a table – except they all have giant yellow heads and love hearts for eyes. The emoji-accepting process is not simple – it’s basically the emoji equivalent of winning a place at Oxbridge. This is why the subjects of the “two dancing girls” emoji look so pleased. It can take two years for submitted emoji proposals to be accepted and completed, and there is often a public clamour for new additions.
The website Emojipedia (which has a vote in the Unicode Consortium) makes a note of all these and analyses the use of existing ones. It also created World Emoji Day (it is Monday 17 July – and best wishes to all who celebrate it). In an Australian legal case, Emojipedia was described as a “reputable” source of expert information in a defamation case involving the actor Geoffrey Rush. People are very passionate about emojis. Sometimes, it’s on the lighter side, with users asking what their favourite food item or animal is. Sometimes it is aesthetic; the pioneering US skateboarder Tony Hawk, for example, was not impressed with one early iteration of the skateboard emoji, calling it: “Mid-80s… beginner-level.” Burn.
It seems crazy to me now, although perhaps it should not, given the, you know, history of the world, that the initial renderings of emojis excluded people of colour. It was only in 2015 that more “racially diverse”, or more accurately, representative, skin-colour tones were added by Apple.
The language we use in tech, then, is just as important as that coming from our mouths, or our hands, or any other form of IRL communication. And, as with those forms, a lot can be said about a person’s age or social demographic in their use of emojis. Gen Z thinks the crying-with-laughter emoji terribly uncool, and more often uses the skull emoji (as in, “I’m dead”, when finding something amusing or out there). I’m not sure if we’ve moved on from using the painting nails emoji as a sort of jovial smugness to signify one’s own achievement or moment of aptitude, but I hope not. I think, by now, we all know what the aubergine emoji means – and it isn’t an aubergine. Basically, what I’m saying here is if you were worried about not being able to keep up with the kids’ slang terms, there’s now even more to worry about. And if you forget whether it’s U to say napkin or serviette, well, again… there are further battles now.
Never got around to reading Moby-Dick? Well, it’s since been translated into emoji. As have the lyrics to a number of pop songs. To not know the latest emoji use or etiquette has almost become a modern form of illiteracy. But never fear, the famed arbiter on matters of style, Debrett’s, has you covered. Thank God, or perhaps thumbs-up, for that.
English (US)