NYLJ “Thumbs Up or Thumbs Down: New York Court Analyzes Meaning and Impact of Emoji...”
By Steve Kramarsky & Jack Millson
A picture is worth a thousand words. Or is it? And which ones? Increasingly, courts have been confronted with those questions in cases involving the interpretation of emojis—graphical icons sent in text messages—in a variety of contexts, including determining whether assent to a contract may be manifested through use of an emoji.
Anyone with a cell phone has seen emojis used in conversation. They can be an efficient way to informally communicate. They can also be maddening, leaving the intent of the sender unclear. There is no emoji dictionary and meaning can differ among users, across generations, based on the context, or even based on the particular sender’s mood. To make matters worse, there is no central authority for emoji appearance—the graphic forms are created by device manufacturers and vary widely across devices. For years, the “cookie” emoji (depicted as a chocolate chip cookie on most devices), was depicted as two crackers on Samsung devices. An iPhone user could send that emoji to a friend and see a tasty cookie in her sent text. But if the recipient had a Samsung device, she would see a Saltine, which might not convey the intended sweet message. Samsung has since corrected the issue, but there is substantial variation across devices, further complicating communication, especially with emoji that attempt to depict facial expressions.
That lack of a shared (or even consistently applied) lexicon poses difficult interpretive questions for the law. In some ways, they are familiar. Try as we might to write clearly, unforeseen ambiguities crop up in many contracts—and sometimes creative lawyers use that to their advantage. Courts are therefore familiar with analyzing writings and determining the parties’ intent through a variety of means, including prior communications between the parties, the parties’ course of conduct, and common usage in the trade. All of these are permissible avenues of inquiry when a contract is ambiguous.
But in some ways, new methods of contracting present new interpretive challenges. Courts interpreting traditional written agreements can consult traditional interpretative sources, with which the drafters are presumed to be familiar. Courts can consult dictionary definitions or look to precedent analyzing similar terms. That lends a uniformity and certainty to the analysis on which parties can justifiably rely. Emojis, or other non-traditional means of electronic communication, are not susceptible to that kind of analysis. There is no “dictionary” and the body of law analyzing them is small, though it is growing.
At first blush, this may not seem like a particularly substantial problem. After all, New York has a well-defined and codified statute of frauds defining the kinds of agreement that must be in writing (GOB §5-701) and a statue expressly permitting the use of electronic signatures (STT §304) and the lawyer in us assumes that no one would ever use an emoji to establish assent to a substantial commercial transaction. But the world moves fast, and the lawyer in us can’t always keep up. As more business is conducted through informal means such as text messages, the informal communication practices that prevail in those contexts have taken on greater weight. A recent case, involving the use of a “thumbs up” emoji at the conclusion of a settlement discussion in a multi-million-dollar transaction provides a good example, and something of a cautionary tale. Lightstone Re LLC v. Zinntex LLC, 2022 WL 3757585 (Kings Cnty. Sup. Ct. Aug. 25, 2022).
This article first appeared in the New York Law Journal on November 14, 2022. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson is an associate at the firm.