Emojis – with approximately 9 million Australians using them, they’re almost impossible to avoid. In fact, as of 2016, the ‘tears of laughter smiling face’ emoji had been used 87,699 times in Australia, making it the country’s most popular emoji.
Emojis have started to be used for more serious causes, however, with a recent study into the well-being of children using emojis to ask 78 preschool students about their feelings. In 2015, Foreign Minister Julie Bishop was interviewed by Buzzfeed using just emojis. She was asked to describe Australia’s relationship with countries such as America, China and Indonesia, to which she replied with a number of emojis including a smiley face, a tick and a thumbs up.
But what happens when emojis cross paths with the law? There have been a few cases globally in which people have been charged with criminal offences such as stalking and threats of violence after sending messages containing emojis.
A Court in New Zealand found a man guilty of stalking, after he sent his ex-partner a message saying “you’re going to f****** get it” followed by an airplane emoji. The man was sentenced to 8 months imprisonment after the Judge decided that the message implied the man was going to “come and get” his ex-partner.
In South Carolina, defendants were arrested for stalking after they sent a message to the plaintiff, who they had physically attacked in the past, consisting of just 3 emojis and no words. Those emojis were, in order, a fist, a pointing finger and an ambulance. This arguably implied that the defendants were going to attack the plaintiff with the intention of severely injuring him.
Threats of violence
A 2016 case in France found a man to be guilty of threatening his ex-partner after he sent her a text message including a gun emoji. The Court decided that this “amounted to a death threat” and consequently, the man was sentenced to 6 months imprisonment.
Another case involving a gun emoji, as well as bomb and knife emojis saw a high school student in Virginia charged with harassment and threats.
In 2017, a high school student in New York was charged with making a terrorist threat for a Facebook post that included policemen emojis with a gun emoji pointing towards them. The jury in this case, however, did not convict the student.
What amounts to a threat in the eyes of the law?
The Criminal Code details what amounts to an unlawful threat in Western Australia. Unlawful threats can be threats to kill, injure, endanger or cause detriment to a person, threats to destroy or damage property and threats to take control of a building by use of force or violence. A threat is any “statement or behaviour that expressly constitutes, or can reasonably be regarded as constituting” any of these categories of threats.
If you make a statement or display behaviour that would cause apprehension to a reasonable person, it will still constitute a threat even if you do not have the present ability to carry it out. For example, if you point an unloaded gun towards someone and they don’t know it is unloaded, this will still constitute a threat regardless of the fact that you couldn’t have actually shot them.
The 1995 Australian case of R v Leece explained that a threat to kill exists where an “utterance or communication” conveys an intention to kill the recipient of the communication, or another person. The communication must be such that a reasonable person would interpret it as a ‘conditional threat’, rather than a merely ‘hypothetical proposal’. A conditional threat is a threat that demands something in return, for example “your jewellery or your life”. The case did recognise, however, that there can be a “fine line” between a conditional threat and a hypothetical proposal. This principal has been applied in recent cases in Australia.
In the case of Barton v Armstrong it was held that words said over the telephone can constitute a threat, if “the recipient has been led to believe they are being followed or kept under surveillance”. Judge Taylor explained that in the current time in which we live, with the communication technology that we have, threats can be made from a distance. There have been numerous cases in Australia that have found text messages to constitute threats.
To sum all of that law up, if you send an emoji to someone and a reasonable person would feel apprehension after reading the message, or feel as though they were being followed or kept under surveillance, you could be liable for unlawful threats.
In Australia, the maximum penalty for a threat is 7 years, or 10 years if it is a threat to kill.
Australian cases involving emojis
There have not been any Australian cases decided based on the use of emojis. There have, however, been a handful of cases in which emojis were mentioned. In a 2016 case concerning a parenting dispute, a Judge said:
“The father responded in kind using two wise monkey emoji’s ‘speak no evil’ and ‘hear no evil’. Such a message, also filled with hearts and balloons, could be entirely innocent and loving, or a message that a child could understand to mean not to talk and not to listen to what was being said.”
This statement demonstrates the main difficulty in using emojis as evidence in court – there is no context by which to interpret them. Whereas a conversation in person provides the benefit of tone of voice and gestures, an instant message via a social media platform does not allow for this level of context.
Moving with the times – the law needs to adapt
It is important, however, that the law progresses with society and does not remain stagnant. For example, with the invention of mobile phones came the need for a law to prevent people using their phone whilst driving. Similarly, when same sex marriage was legalised in Australia in 2017, the Marriage Act 1961 (Cth) had to replace “union of a man and a woman” with “union of 2 people” in its definition of marriage.
How, then, can the law adapt to the ever increasing use of emojis in a way that is fair and consistent? One suggestion is for specialists in digital speech to assist Judges in determining cases that involve instant messaging and, in particular, emojis.
If you have received a message with emojs that has made you feel unsafe or threatened, please do not hesitate to contact Lynn & Brown Lawyers for assistance. Similarly, if you have sent an emoji to someone who has accused you of threatening or stalking them, you can contact Lynn & Brown Lawyers for expert legal advice.
About the authors:
This article has been co-authored by Chelsea McNeill and Steven Brown at Lynn & Brown Lawyers. Chelsea is in her fourth year of studying Law at Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.