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Thinking emoji
Watch: Are emoji above the law?

Most of us have seen or used emoji before, quite likely as a way of helping convey the tone of a message or emphasise emotion in a text. Emoji are fast becoming recognised not just as a visual add-on to a text or online message, but as an accompanying form of communication engrained within the way we interact with others.

But given the prevalence of emoji use within today’s society, how do they fair when assessed in the context of a criminal investigation? Currently, there is not much bearing when it comes to evaluating emoji within a legal context, but new research advocates for them to be considered more seriously within the courts.

Research conducted by Dr Elizabeth Kirley and Deputy Dean Marilyn McMahon from Deakin University suggests that ‘our social need to expand meaning and emotional expression in our online conversations’ implies the need for a greater consideration of emoji from a legal point of view.

Dr Kirley and Dr McMahon examined emoji in the context of criminal, tort and contract law within North American, European and New Zealand trials. Their findings showed that emoji are ‘progressively recognised, not as a joke, but as the first step in non-verbal digital literacy with potential evidentiary legitimacy to humanise and give contour to interpersonal communications.’

One particular investigation involved a 2016 case in France, where a man was convicted of threatening his ex-girlfriend via the use of a gun emoji in a text message. The use of the emoji was found by the court to be an inferred ‘visual’ death threat.

Further case studies delve into the nuanced interpretation of how emoji can modify or amplify the context of a message. To learn more other cases studied by Dr Kirley and Dr McMahon. and the implication of emoji in a legal context, watch the video below and read a pre-publication version of their article here.

Read about how changes in technology and pop culture pushes lawyers to start thinking differently

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Dr Elizabeth Kirley
Dr Elizabeth Kirley

Senior lecturer, Faculty of Business and Law, Deakin University

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Assoc. Prof. Marilyn McMahon
Assoc. Prof. Marilyn McMahon

Deputy Dean, Faculty of Business and Law, Deakin University

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