If a Picture is Worth a Thousand Words – How Many in An Emoji? Emojis in Common Law Criminal Courts

Abstract

Emojis are now recognised as standard additions to technology-mediated communications and are beginning to be viewed as a language in themselves. Necessarily, these peculiar icons have found their way into courtrooms across the globe, raising questions as to how they are best dealt with, particularly when a finding of criminal guilt turns on their interpretation. This paper analyses the approaches of criminal courts in three common law jurisdictions: the United States, Australia, and New Zealand – concluding that the current approach is characterised by a worrying lack of consistency and coherence. Additionally, the unique legal challenges presented by emojis are explained and analysed. These amusing characters are marred by practically limitless potential for misinterpretation, a gulf in understanding between their typical users and legal decision-makers, lack of an authoritative reference source, and unclear procedural rules. Finally, recommendations are put to the New Zealand judiciary as to how they can ‘look forward’ and establish legal principles for dealing with emojis, to avoid frustrating fair outcomes.