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99% Invisible
😅⚖️ (Emoji Law)
00:27:29
A single 👍 emoji sent over text was meant to say “got it”—but instead, it kicked off a $62,000 legal battle and raised the question: can an emoji seal a contract?
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- [00:01]
Roman Mars
This message is brought to you by Apple Pay. No matter where you're going this summer, odds are you'll need to pay for a few things like a rideshare, a souvenir, or dinner at that spot on your bucket list. Instead of digging for your wallet every time, just use Apple Pay. It's accepted anywhere you see the contactless symbol and all it takes is a tap with iPhone or Apple Watch. The best part is you'll still earn the card rewards, points and cash back you love. Easy setup now, easier travel later with Apple Pay terms apply. This is 99% invisible. I'm Roman Mars. Back in 2021, Chris Auchter, a farmer in Saskatchewan, Canada, was hashing out a contract with a buyer interested in purchasing some of his flax.
- [00:47]
Eric Goldman
And they've dealt with each other before. They've formed contracts before.
- [00:51]
Roman Mars
This is Eric Goldman, a law professor at Santa Clara University Law School, and he says that the farmer Chris and the buyer had a history. They would often discuss these grain orders.
- [01:02]
Eric Goldman
Text and so they're working on a new contract for this year's crop and the buyer sends over a standard form that says, here's the offer for buying your flax. And the seller responds with the thumbs up emoji.
- [01:23]
Talyn Stradley
Between discussing the contract in March and the delivery date in November, the price of flax increased.
- [01:30]
Roman Mars
That's producer Talyn Stradley.
- [01:32]
Talyn Stradley
That year there was a drought and the flax harvest was smaller than many farmers expected. As the supply of flax went down, its price went up.
- [01:41]
Roman Mars
This would have been a good thing for the buyer, who thought they locked in their contract earlier that year at the lower price. But when November rolled around, no flax was delivered.
- [01:53]
Talyn Stradley
The misunderstanding goes back to that thumbs up emoji. The buyer thought Chris was agreeing to the contract.
- [02:00]
Adam Alexik
Contract.
- [02:00]
Talyn Stradley
But Chris, the seller, had a different perspective.
- [02:04]
Eric Goldman
The seller, explaining the thumbs up emoji, says, I was just acknowledging receipt. I wasn't agreeing to the terms. Just like we all have done many times using a thumbs up emoji.
- [02:15]
Talyn Stradley
In other words, the seller said he was acknowledging the contract while the buyer said he was signing it.
- [02:22]
Roman Mars
The buyer sued the seller for breach of contract and damages. Bringing the ambiguous nature of emojis into contact with with the rigid world of contract law is a thumbs up emoji a legally binding signature? That's what one Saskatchewan this case caught global attention and got people wondering what an emoji means in the eyes of the courts.
- [02:44]
Keith Houston
A Saskatchewan judge thinks emojis are contractually binding.
- [02:49]
Justice Timothy Keene
Last year, Justice Timothy Keene Called the.
- [02:52]
Talyn Stradley
Thumbs up emoji a non traditional but valid response. The court said that the thumbs up in this context was a digital signature. The buyer was awarded roughly US$62,000 in damages.
- [03:07]
Eric Goldman
So that single thumbs up emoji was worth tens of thousands of dollars in that circumstance.
- [03:13]
Roman Mars
Contract law is all about trying to wring out the nuances of language. And emojis are an increasingly big part of how we communicate. They appear in texts, social media, posts, Slack messages, zoom chats, emails. Things go wrong in courtrooms.
- [03:30]
Talyn Stradley
It's not just this Canadian farmer getting into emoji trouble. Under former CEO Sam Bankman Fried, the crypto firm FTX approved millions of dollars in expenses using emojis. In Australia, a Twitter user was sued for defamation when they tweeted a single zipper face emoji in response to a question about a lawyer's alleged misconduct.
- [03:54]
Roman Mars
As more emojis end up in evidence, the courts will have to figure out how to handle them.
- [04:00]
Eric Goldman
Judges are running into emojis whether they want to or not, and the judges have to be prepared for it.
- [04:06]
Roman Mars
But emojis can be tricky. Their meaning is constantly in flux, changing quickly in the hyper vortex of Internet culture, which means they present some real challenges as they make their way through the legal system.
- [04:20]
Talyn Stradley
Eric Goldman, our lawyer, has probably seen just about every emoji that has passed through the US Legal system. He set up keyword alerts in various databases for the terms emoji and emoticon.
- [04:33]
Eric Goldman
And I'm keeping a running log of those cases now. Over a thousand opinions that have used the term emoji or emoticon somewhere in their opinions.
- [04:44]
Talyn Stradley
This database has given Eric some perspective on the growing problem that is emoji law. And in 2016, he found at least 26 court opinions that referenced emojis. By 2023, that number was over 200. There is a freight train of emojis headed toward the legal system, and Eric wants us to get ahead of it. But right now, the courts are behind. Many of them don't even include emojis in their evidence transcriptions.
- [05:12]
Eric Goldman
They'll often cut and paste a chat log and there will be emojis in it, and then the judges will take them out and just put in a bracket emoji without being specific even what emoji it was, but certainly without showing it to us.
- [05:25]
Roman Mars
In other words, for some old school judges, emojis don't merit any consideration. Which is wild because emojis can be central to how we understand the meaning of a message.
- [05:36]
Adam Alexik
I don't Think they're different from words? I think they're the exact same thing as words.
- [05:39]
Talyn Stradley
This is Adam Alexik. He's a linguist and he researches Gen Z slang. In particular, Adam was shocked when I told him that some judges simply ignore emojis.
- [05:51]
Keith Houston
It's.
- [05:51]
Adam Alexik
It's really terrible. They have such a critical function frequently of telling you the vibe of the sentence.
- [05:57]
Talyn Stradley
This is part of what makes emojis unique to other written communication. Sure, sometimes they might be a literal replacement for a word like sending a pizza emoji when someone asks what you want for dinner. But they can also provide what linguists call a tone tag to indicate the.
- [06:14]
Adam Alexik
Tone of the sentence. So you could. If I say, like, I had a great time today, thumbs up emoji.
- [06:19]
Talyn Stradley
It could be a tone tag for.
- [06:20]
Adam Alexik
Older people saying, like, they had a great time. But it could be a tone tag for younger people saying, I'm joking. This is ironic. This is a sarcastic thumbs up. I did not have a great time.
- [06:33]
Roman Mars
The meaning of emojis can vary depending on a user's age, location, profession, even their political ideology. These meanings are constantly shifting.
- [06:43]
Adam Alexik
From about 2010 to 2015, emojis were mostly unironic online. So if you were laughing, you just send somebody the laughing, crying emoji. However, around, like, I don't know, my, my inflection point is 2016, 2017, people started seeing like these traditional emojis as a little bit cringe and started moving to different ways to express laughter. So we started turning to the crying emoji, and at a certain point, that gets overused. And now Gen Z people are using the skull emoji. And so these emojis are rapidly evolving, and unless you're tapped into the chronically online space, you're going to miss out on the nuance there.
- [07:20]
Roman Mars
In some cases, that nuance has to do with the meaning of emojis in different communities and subcultures. The goat emoji is used by sports fans to mean the greatest of all time. The infinity emoji is used to represent neurodiversity. The watermelon emoji is used to express support for Palestine.
- [07:37]
Talyn Stradley
For the most part, the these subcultural emojis are just a way for communities to connect over shared symbols. But they're not always harmless. Sometimes the meaning of certain emojis can get pretty dark and even veer into criminal territory.
- [07:55]
Eric Goldman
Let me give you an example of an emoji that has slang usage. The crown emoji has very specific meanings in the sex trafficking context. It's Basically used to signal the relationship between a pimp and a sex worker, where the sex worker is either admitting to some subordinate relationship or is being offered to take on that subordinate relationship.
- [08:21]
Roman Mars
The courts might be slow to get on board with emojis, but they're used to dealing with ambiguous, encoded communications of other kinds. They've always had to consider complexities of human communication, even offline, like the way things were said, who was saying it, and where.
- [08:36]
Eric Goldman
This is something that judges and the legal system deal with all the time. And frankly, they're really quite good at it. Juries will watch when a witness testifies about their facial expressions, their vocal inflections, their body language, and factor that into the trustworthiness of the speaker.
- [08:55]
Roman Mars
As an example, when a bad guy gives you a compliment, you know they're not trying to be nice. It is a threat. Think Die Hard.
- [09:04]
Keith Houston
It's a very nice suit, Mr. Takagi.
- [09:08]
Roman Mars
To be ashamed to ruin it.
- [09:10]
Eric Goldman
So this happens every day. Go watch Law and Order or CSI or whatever. Like, this is happening all the time on the TV shows too. And so emojis are just another piece of that. They're just another part of the overall package of communication that's being delivered between speakers. And it's not unusual. That's just the way human communication goes.
- [09:32]
Roman Mars
But for emojis, there is one key piece of technical knowledge that judges, lawyers, and juries have to grasp. It's something that makes emojis fundamentally different from the spoken and written language the courts are used to. And that's the fact that sometimes the emoji that a person sends is different from the emoji that another person receives. Something as simple as an Apple phone sending an emoji to an Android phone could result in a different emoji design and therefore a different message.
- [10:02]
Eric Goldman
It is possible that the emoji depiction that the sender sees is different from the emoji depiction that the recipient sees. And it's possible, if not likely, that the sender recipient don't know that they're seeing slightly different images.
- [10:21]
Roman Mars
Whether it's Apple, Android, Meta, Slack, or X, each platform has their own unique emoji designs. Some are more detailed, some are quite simple, some are three dimensional, some are flat. And sometimes they don't even show the same object.
- [10:37]
Talyn Stradley
Take, for example, the infamous gun emoji. Different platforms show the gun emoji very differently. At first, many platforms depicted the pistol as a firearm, specifically a revolver. In the following years, the emoji kept popping up in courts as a threat. A man in France was sentenced to three months in jail after texting the gun emoji to his ex girlfriend in Virginia. A 12 year old girl was charged with threatening her school after using the gun, knife and bomb emojis in an Instagram post. It got to the point where a gun control organization launched a campaign to change the emoji's design.
- [11:14]
Roman Mars
Apple changed their gun emoji in 2016, depicting it as a water gun instead, and many other companies did the same. But then just last year, Elon Musk reverted X's water gun emoji back to a pistol. Now, some platforms show water guns and some show firearms, and there's no clear way to know which version other people are seeing.
- [11:36]
Talyn Stradley
Not even the direction of the pistol emoji is the same across platforms, making things complicated. When the emoji shows up in court, usually it points to the left, but in some cases it's rotated slightly so it looks like it's pointing at the viewer. At least one platform has the gun emoji facing the opposite direction to the right. Of course, the direction a gun is pointed is pretty important to the meaning of a message. Let's say, for instance, you have the following emojis, a crocodile, a pistol, and a cop.
- [12:08]
Adam Alexik
The gun is facing to the left, looks like the cop is shooting the crocodile. But now let's say you send this from one platform to another platform and the other platform has the symbol for the the gun emoji is facing the other way. Now it looks like the crocodile is shooting the police officer. Maybe. Maybe you're actually advocating for shooting cops.
- [12:25]
Roman Mars
Or at least advocating for crocodiles to shoot cops.
- [12:28]
Talyn Stradley
The pistol is an especially chaotic example, and you'd be forgiven for thinking it's the Wild west when you send emojis across platforms. But there's actually an organization that's supposed to keep all emojis looking the same, at least in theory. It's called Unicode.
- [12:46]
Roman Mars
Unicode is like a universal dictionary that computers use to display text properly. It works by assigning a unique ID number for every character you type. That ID is readable across all platforms and languages.
- [13:00]
Talyn Stradley
It can get a little complicated, but what it boils down to is Unicode is what ensures the letter A on your computer shows up as an A on someone else's computer, even if they live on the other side of the world.
- [13:14]
Roman Mars
Unicode started by standardizing letters, but 15 years ago they moved into the emoji space. They assigned each emoji an ID made of a string of numbers and then provided a simple black and white design for Reference. The idea was to create a coherent set of emojis that all platforms would recognize.
- [13:34]
Talyn Stradley
The problem is that Unicode doesn't really have any power to enforce this standardization. There are no emoji inspectors, no emoji cops. Unicode simply provides a system that most companies agree to use so all their devices play nice.
- [13:50]
Roman Mars
And while Unicode might want to enforce the sameness of emojis across different platforms, there are a number of competing forces pushing companies to differentiate. The first is branding.
- [14:04]
Eric Goldman
A number of operating system vendors view emojis as a competitive differentiator. If they have slicker emojis, they think that's going to increase adoption for them.
- [14:15]
Talyn Stradley
Another factor that Eric thinks is pushing companies to vary their design is copyright law, which requires that emojis not be too similar. A company's emoji is considered an original illustration. Nobody wants to open themselves up to a lawsuit by copying someone else's work. And so every platform tweaks its emoji designs.
- [14:35]
Roman Mars
The differences between what is sent and what is received could effectively double the work of the courts. And while they're perfectly capable of interpreting emojis, they have to make sure that they're interpreting the right right once.
- [14:47]
Talyn Stradley
And this is where Eric steps in. He trains lawyers and judges on all of these intricacies so that they can be prepared for future emoji cases before a bad decision is made.
- [14:58]
Eric Goldman
What I try to do when I do judicial trainings on emojis is I say emoji depictions should always come in at least pairs. What did the sender see and what did the recipient see? And you should not assume that they're the same thing.
- [15:12]
Talyn Stradley
So for emojis to be effectively interpreted in courts, they have to clear multiple hurdles. First, the court has to actually recognize emojis as an important part of conversation and include them in the evidence. Then they have to consider all the various contextual meanings of an emoji. Finally, they should keep in mind what emoji design was sent and what emoji design was received.
- [15:38]
Roman Mars
Eric points out that the thumbs up case with the Saskatchewan farmer is a good example of how courts should handle emojis.
- [15:45]
Talyn Stradley
In this thumbs up case, the court didn't just look at this one message. They looked at the text messages around the thumbs up where they discussed the contract. They also looked at past contracts that were approved in a similar way with a brief okay or yup, sent over text.
- [16:03]
Eric Goldman
And so the court says, looking at the emoji in the context of the conversation and with the context of past dealings with each other, it looks like that thumbs up was an ascent to the contract. But I think that the court's methodology, not just to look at the emoji in the abstract but to put it in context, was exactly what we would hope the courts would do. And I think based on that, to me it looked like the court got the right outcome.
- [16:31]
Talyn Stradley
Human communication has always been messy. Every time you open your mouth or type out a message and try to convey your thoughts to someone else, there's a chance they'll misunderstand.
- [16:43]
Roman Mars
And that's why we have judges, lawyers and juries in the first place. Legal conflicts often involve competing points of view that are subjective and muddled and up for interpretation. That's easy, even more true when people are talking across generational differences and new technologies.
- [17:01]
Talyn Stradley
So remember, if you're texting about something illegal, toss in a few random emojis for good measure. Keep the courts on their toes.
- [17:22]
Roman Mars
Coming up after the break, we'll talk with author Keith Houston about the origins of the poop emoji. That's after these ads.
- [17:37]
Justice Timothy Keene
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Roman Mars
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- [19:50]
Keith Houston
Here's Keith There is this anime called, or was this anime called Dr. Slump? And one of the characters was called Poop Boy or Unshikun. And he was a poo done by the main character or the the title character, Dr. Slump, Senbei Norimaki. He had some friends. His friends were Manure Boy, Bird Poop Boy, Old Man Poop, and Soft Serve Ice Cream Boy, who the others mistook for a poop. And so this character was quite popular. Also, apparently in Japanese, the term unshi kind of has connotations of sort of good luck, even though it literally means poop. And so weirdly, or perhaps not, the notion of poop being in some way cute or lucky or just a good thing to have around made its way into this first emoji set.
- [20:40]
Roman Mars
So what did this original poop emoji look like?
- [20:43]
Keith Houston
The original poop emoji, like all of the other initial emoji, was tiny. It was something like, I think, 12 pixels by 12 pixels. And it just, it looks like a poop. It doesn't have eyes. It's not smiling. It's just a poop. Of course, the engineers or designers who are working on these were really constrained by the technology at the time. They were all monochrome. All the phones at this point had black and white screens or LCD screens. And yet they became popular. They became this fundamentally useful part of Japanese Internet culture. I've read a theory that Japanese can be quite a formal language, and I think some users felt that emoji gave them kind of a way out or helped them to express really complex sentiments that would otherwise be quite difficult. Not only that, even just entering text on a keyboard or a Japanese phone could be quite difficult. So again, emoji were a kind of a shortcut to expressing emotions or sentiments that were just fundamentally quite difficult or quite time consuming to express otherwise. And what this meant was that in the mid-2000s, when Google wanted to broaden its reach into Asia and Japan, it wanted to launch Gmail. And one Particular product manager insisted that emoji had to be part of this. He told his bosses, we can't launch Gmail in Japan without emoji.
- [21:59]
Roman Mars
And was he insisting on this because of the way emoji just broadened the expression? Like, what do you attribute to his insistence that emoji be part of an email?
- [22:09]
Keith Houston
It seems like emoji just felt like an integral part of electronic communication at that point. One of the Googlers on this, Kat Mamoy, he wrote that emails just felt kind of dry and boring. If they didn't have emoji, there was something lacking. They had given something to written communication which hadn't existed previously. And also they just made it easier to express emotion. And I think it's quite telling that someone at Google, which is very data driven, was able to express this thing. And then some of the engineers in the Gmail project did a bit of statistical analysis and found that the poop emoji that existed already was actually quite popular. It was relatively well used. And so he appealed both to, I think, the heart and to the head of his bosses and they said, okay, fine, we can have emoji and you can have the poop.
- [23:00]
Roman Mars
The first step is you can have emoji and the second step is you can have the poop emoji, which might not translate to a seriously minded company like Google necessarily. Was there some pushback about the poop emoji in particular?
- [23:16]
Keith Houston
There was, I think there was just a thought that this is ridiculous. Why do we need to have an animated poop in Gmail product? But again, this appeal to the data won the day and the poop arrived.
- [23:29]
Roman Mars
So you mentioned that this Google poop emoji was a pile of poo with flies around it. Can you talk a little bit about the evolution of the design of the poop emoji?
- [23:39]
Keith Houston
There are basically, there are two flavors. What a terrible thing to say. There are two flavors of poop emoji. The one which everyone will be most familiar with is the smiling poop emoji. And the other one is just a faceless poop, perhaps with flies, perhaps not. And basically this came down to which of two Japanese mobile companies. One followed the first one, which was called JPhone, if I remember rightly, had just a faceless. Had a faceless. This is just a poop icon. And the second one to introduce it was called kddi and they had a smiling poop emoji. And really just, it's really interesting to try and follow the history of any one particular emoji back because there are so many of them and there are so many different potential inspirations for each one. But this one can be traced fairly clearly back. If you look at a poop emoji and it's got eyes, it's descended from kddi. And if you look at it and it doesn't, it's descended from jflone.
- [24:34]
Roman Mars
Yeah. So talk about the popularity or the impact of the poop emoji since its adoption and widespread use on lots of different platforms.
- [24:43]
Keith Houston
Well, this is really interesting. It's not popular and no one likes it, at least in the West. What happened was Google launched Gmail with their emoji, and they did quite a responsible thing, which was it went to this organization called Unicode. It's just a private corporation headquartered in California. Google went to Unicode and said, we'd like to standardize this stuff. And it turned out Unicode were actually already looking at it. They had formed something called the Symbols Committee or Symbols Subcommittee, and within a few years, Unicode had standardized this. And what they did was they basically imported all the emoji that were in use in Japan by these different mobile operators, and they just kind of inherited the poop. They didn't think about it. It just came along with smiling faces and bento boxes and bullet trains and a poop. And so it went into, I think it was Unicode version 6, came out in 2010, and the poop was rubber stamped, so to speak, as an official emoji. But only four years later, there was a survey that found that the poop Emoji was the 88th most popular emoji on Twitter. And then another report in about 2022. So just a few years ago, emoji did this big thing called the US Emoji Trend Report found that the poop emoji was the least popular emoji for basically every generation, from Gen Z back down to Boomers. No one likes it. But I think the telling thing is that I think it's become this kind of emblem of emoji. What do you think about when you think about emoji? Maybe a smiley yellow face, but that existed before. That was an icon that was a concept that kind of merged into emoji. The poop emoji is just the poop emoji. It exists in our heads because emoji exists. And so you have Patrick Stewart voicing a poop emoji in the emoji movie. I could buy a crocheted poop emoji squishy toy, or like a plush emoji or a 3D printed gold emoji, any number of things that are shaped like the poop emoji. It seems to have transcended emoji.
- [26:43]
Roman Mars
Yeah.
- [26:44]
Keith Houston
I don't know. It's done something. It's managed to achieve escape velocity. God, that's a terrible. Like another terrible metaphor in the context of a poop.
- [26:53]
Roman Mars
But. But despite the fact that the poop emoji has achieved, as you would say, escape velocity, it hasn't been without controversy. Right. Like, there was an Inc in 2016 or 2017 that you've actually written about.
- [27:07]
Keith Houston
Right. So emoji at that point were sort of six or seven years old, or they were officially six or seven years old. And this organization, the Unicode Consortium, which manages emoji on our behalf, they were undergoing or experiencing a few sort of internal ructions where some members who are very serious and they were interested in, we will encode this ancient language, will improve support for this sort of punctuation. They were getting really hacked off with how much attention emoji was being given within the consortium. But I think also they were almost angry because it was getting so much attention outside of the consortium. And so there was one particular year where the yearly set of emoji for next year's standard being debated, and one of them was a frowning poo or pooh with sad face. And one particular code contributor wrote a comment, he said, this should embarrass absolutely everyone who votes yes on such an excrescence. Will we have a crying pile of poo next? Pile of poo with tongue sticking out. Pile of poo with question marks for eyes. Pile of poo with karaoke mike. Will we have to encode a neutral, faceless pile of poo? He was just absolutely incandescent that the Unicode Technical Committee in any way should have to care about this. This whole era of this, this unrest was called emoji Geddon, but we came out of it on the other side. And one of the funny things is that when a character goes into Unicode, there's no way to take it out. So the poo is in there. It doesn't matter how much you hate it. So it may be the least popular emoji ever in the long history, long future history of emoji, but we will never be truly rid of it.
- [28:44]
Roman Mars
That was Keith Houston. His book Face with Tears of A Natural History of Emoji will be out in July, and all Keith Houston books are must haves for 99pi fans. So pre order it now 99 Invisible was produced this week by Talon Stradley and edited by Delaney hall, mixed by Martin Gonzalez, Music by Swan Real Fact checking By Graham Haysha Kathy 2 is our executive producer, Kirk Kolstedt is the digital director. The rest of the team includes Chris Perube, Jason De Leon, Emmett Fitzgerald, Christopher Johnson, Vivian Lay, Marshma Dawn, Kelly Prime, Joe Rosenberg, Jacob Medina Gleason and me, Roman Mars. The 99% invisible logo was created by Stefan Lawrence. We are part of the SiriusXM podcast family now, headquartered six blocks north in the Pandora building in beautiful uptown Oakland, California. You can find this mostly on Blue sky as well as our own Discord server. There's a link to that as well as every past episode of 99pi at.
- [29:46]
Steve
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- [30:25]
Roman Mars
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