Emojis were already a generational minefield. Now they’re a legal one

Last year a Canadian farmer sent a very expensive emoji. This is a simple story of 21st century contract law: a grain buyer – looking to purchase 87 metric tons of flax – texted a photo of a contract to this effect to a farmer, Chris Achter. Achter responded to this text with the “thumbs-up” symbol, though he never delivered the flax. This seemingly innocuous gesture has cost him the equivalent of €56,000. A judge ruled that Achter’s response was far more than just a casual emoji, but instead an indication that he had agreed to the terms of the contract, which he proceeded to breach. The beleaguered farmer argues that his “thumbs-up” was a harmless acknowledgment that he had received the text message.

This might strike you as an unfortunate but improbable bind. Nothing to personally worry about. But this cautionary tale is not an anomaly. The moon emoji – a pale yellow orb bearing a serene smiley face – is the subject of a court case in Washington DC. Ryan Cohen, a once-major investor in Bed, Bath & Beyond responded to a tweet in 2022 about the company with the tiny lunar symbol. Now, shareholders of the retailer are suing him for securities fraud. Their claim? Cohen knew his Twitter followers would consider the emoji a sign of confidence in the retailer (that its shares were “headed to the moon”), and so his tweet was an effort to artificially drive up the share price before ditching his stake in the company and bagging €55 million. Bed, Bath & Beyond declared bankruptcy in April this year.

So, all of a sudden emojis are fraught with legal risk and capacity for grave misunderstanding (or manipulation). But this is not a story about an unfortunate flax contract gone awry or even possible securities fraud. It is about what happens when we lose shared reference points; when our language evolves so rapidly it starts collapsing under the weight of ambiguity; when a thumbs-up means something very different to me than it does to you. The old crack that England and America are nations “divided by a common language” has specious origins – Oscar Wilde, Winston Churchill and George Bernard Shaw are all blamed for the quote. But no matter who is responsible, the epigram has an enduring truth. Just ask the Canadian farmer.

Law firms in the US tell prospective clients to contact them “if you believe that you have been a victim of sexual harassment involving emojis”

Emojis – an SMS lingua franca – emerged from Japan in the late 1990s. But now the standards body responsible for the quasi-language suggests 92 per cent of the world’s online population uses it. The tiny symbols may be twee and unserious – kind of like digital jazz hands – but this is far from a frivolous issue. They are central to 21st century vernacular; swirling around court cases; potentially an avenue for financial fraud. In fact, their proliferation has been among the most formative impacts on modern communication. And though it may be obvious we shouldn’t forget that the way we communicate is inseparable from how we run our society – whether that is severe corporate speak, friendly marketplace chatter, morse code, or the small pictures of smiling faces and moons and hearts we text back and forth.

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But the problem central to the emoji is that for all its fun and levity it comes with ambiguity. That kind of linguistic ambiguity may be the lifeblood of great poetry and prose (it is the keystone of Ciceronian rhetoric), but it is a minefield in everyday speak. A red love heart can be a straightforward indication of affection or an irony-laden mark of contempt. The snowflake emoji can be taken as a simple gesture to cold-weather; thin-skinned adolescents (a la “the snowflake generation”); or more sinisterly, to represent a Class-A substance. Plenty take on overt sexual tones too (as with many things on the internet, this was perhaps inevitable).

This is a generational minefield. For a long time, the young have adopted a different idiolect to their parents – this is where almost all slang comes from. But the advent of texting, emoji and email appears to have made this linguistic divergence all the more stark. The internet has catalysed the evolution of English and exposed huge vulnerabilities in our ability to communicate.

There is a serious example. Workplace sexual harassment has been subject to intense focus ever since the flurry of 2018′s #MeToo movement. A woman in the UK was awarded £420,000 after successfully suing her employer for sexual harassment. Part of her claim involved a barrage of peach emojis sent to her by her boss. So rife is this issue that law firms advertise their specific expertise: “If you believe that you have been a victim of sexual harassment involving emojis, you should consult the experienced New York City sexual harassment lawyers at Phillips & Associates” reads the page of one US law firm.

Language changes and there is no need to be haughty about it – it has always been fluid and negotiable. And so emojis are no cause for linguistic snobbery. In truth, language can’t be right or wrong so long as those communicating understand each other. But when the internet has changed our speech as profoundly as this, it’s clear the space for misunderstanding is growing wider and wider. And so, the old question remains: what do we lose when we become divided by a common language?