When Cute Becomes Criminal: Emoji, Threats, and Online Grooming

Abstract

Emoji are widely used and are frequently perceived as cute or benign adjuncts to online communications. Employed to humanise truncated digital messages by conveying humour, emotion and sociability, emoji perform a far more sinister role when used to convey threats or to sexually exploit minors. These activities exploit the emotive function of emoji and/or their role in facilitating trust, albeit for a criminal purpose. This paper explores the role of emoji in both threats and online grooming. Through a review of a sampling of criminal cases from diverse jurisdictions, we examine relevant prosecutions and find that emoji are being increasingly recognized as a facilitator or adjunct to criminal threats and unlawful sexual solicitation made on online platforms such as Facebook, Instagram or through private messaging. The review also examines the multiple and diverse ways in which evidence of emoji has been admitted in criminal trials, raising contentious (but hitherto largely unrecognised) issues in relation to the application of the best evidence rule. While noting the distinctive opportunities, challenges and problems posed in relation to how to interpret and best represent these stylised visual representations in criminal proceedings, the article concludes that despite these various difficulties, imposing criminal liability for threats or solicitation conveyed by emoji is a necessary evolution of the criminal law, demonstrating its adaptation to the digital age.

Keywords: emoji, threats, online grooming, criminal liability, best evidence rule