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The Emoji Factor: Humanizing the Emerging Law of Digital Speech

Posted: 13 Nov 2017 Last revised: 29 Nov 2017

Elizabeth A Kirley

Deakin University School of Law

Marilyn M McMahon

Deakin University, Geelong, Australia - Deakin Law School

Date Written: November 9, 2017

Abstract

Emoji are widely perceived as a whimsical, humorous or affectionate adjunct to online communications. We are discovering, however, that they are much more: they hold a complex socio-cultural history and perform a role in social media analogous to non-verbal behaviour in offline speech. This paper suggests emoji are the seminal workings of a nuanced, rebus-type language, one serving to inject emotion, creativity, ambiguity – in other words ‘humanity’ - into computer mediated communications. That perspective challenges doctrinal and procedural requirements of our legal systems, particularly as they relate to such requisites for establishing guilt or fault as intent, foreseeability, consensus, and liability when things go awry. This paper asks: are we prepared as a society to expand constitutional protections to the casual, unmediated ‘low value’ speech of emoji? It identifies four interpretative challenges posed by emoji for the judiciary or other conflict resolution specialists, characterizing them as technical, contextual, graphic, and personal. Through a qualitative review of a sampling of cases from American and European jurisdictions, we examine emoji in criminal, tort and contract law contexts and find they are progressively recognized, not as joke or ornament, but as the first step in non-verbal digital literacy with potential evidentiary legitimacy to humanize and give contour to interpersonal communications. The paper proposes a separate space in which to shape law reform using low speech theory to identify how we envision their legal status and constitutional protection.

Keywords: Emoji, Emoticon, Digital Speech, Low Speech Theory, Free Speech, First Amendment, European Convention on Human Rights

Suggested Citation

Kirley, Elizabeth A and McMahon, Marilyn M, The Emoji Factor: Humanizing the Emerging Law of Digital Speech (November 9, 2017). Tennessee Law Review, Forthcoming . Available at SSRN: https://ssrn.com/abstract=3068058

Elizabeth Kirley (Contact Author)

Deakin University School of Law ( email )

1 Gheringhap St.
Geelong, VIC 3220
Australia
5227 1100 (Phone)

Marilyn McMahon

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood, Victoria 3125
Australia
61392446184 (Phone)

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