A&B ABstract: What does the increased use of emojis in business communications mean for consumer finance companies, and how can risks be mitigated?

Discussion

As emojis increasingly make their way into business communications, their use is creating unanticipated and problematic legal exposure for companies and their employees. Roughly 200 published court decisions since 2004 have grappled with emojis as evidence, and the number of these cases spiked as of 2017. In business settings, these cases run the gamut from contract disputes to sexual harassment and discrimination.

The potential problems arising from workplace emoji use are particularly acute for consumer finance companies such as lenders and mortgage servicers, given the wide diversity of backgrounds among – and thus the greater potential for miscommunication with – their clients. The emoji trend shows no signs of slowing, and their legal complications in business communications will likely worsen absent common-sense safeguards.

Background on Emojis

Emojis, of course, are small picture characters used in emails and text messages. They integrate visual images into text, and they can expand depth and emotional content in ways that written words cannot. As explained by Professor Eric Goldman, , as of January 1, 2018, there were 2,600 emojis with codes under the Unicode Consortium. Countless more emojis are specific to different messaging platforms. Other related symbols are “emoticons,” which are letters, numbers, and other standard keyboard characters that are strung together to resemble a picture (e.g., the “smiley” emoticon – :-)). According to recent surveys, 92% of online participants use emojis, and 2.3 trillion mobile messages include emojis annually. They are ubiquitous and now common in business communications between colleagues and with clients in emails, texts, and instant messages, among other media.

The Problems With Emojis In Business Communications

The major problems with emojis involve their interpretation and meaning. If, as the saying goes, a picture is “worth a thousand words,” then so is each emoji. This reflects two major attributes of emojis that can lead to unintentional and profound misunderstandings in business communications with colleagues and clients.

First, different platforms translate and depict emojis differently. This means that an emoji sent via an iPhone may look quite different on an Android device, and vice versa. The same problem occurs with new versions of the same platform. Further, the sender and receiver have no easy way of knowing they are looking at symbols rendered differently across platforms, and they also do not necessarily even know that the emoji is being read on a different platform. All of this can lead to major misunderstandings. A classic example is the Unicode-coded emoji known as “grinning face with smiling eyes.” A 2016 survey revealed that most people thought the Android version meant “blissfully happy,” but thought the iPhone version meant “ready to fight.” The burgeoning field of emoji research reveals many similar examples. So a seemingly innocent email or text to a colleague or client that contains an emoji could inadvertently send an entirely different message than intended, solely based on technological issues beyond the participants’ control or knowledge.

Second, emojis often have multiple meanings that not all senders and recipients will mutually recognize. Indeed, Unicode Technical Standard #51 states a preference for adopting emojis with multiple meanings. Although this allows senders to convey many different concepts at once, it also raises the prospect of serious misunderstandings. The absence of any comprehensive and accepted emoji dictionary exacerbates this problem. The “folded hands” emoji, for example, can symbolize please, thank you, prayer, and a high-five – all very different meanings, with different implications. A 2016 survey showed that the iPhone “unamused face” emoji is variously interpreted as signaling disappointment, depression, being unimpressed, and being suspicious.

There may also be differences in emoji interpretation among different user groups, industries, and generations of users, all of whom may have their own idiosyncratic understandings of given emojis. This risk is heightened when corresponding with colleagues and clients from diverse groups that may not share a common background or frame of reference with the sender – a particularly acute issue for large client-facing organizations in the consumer finance industry.

Litigation Involving Emojis In Business Communications

Given the ubiquity of emojis, their use and interpretation have become fodder for the courts. Since 2008, U.S. courts in published decisions have addressed emojis in dozens of business cases involving breach of contract, employment discrimination, and sexual harassment.

For example, in Murdoch v. MedJet Assistance, an employee based claims of sexual harassment against her CEO on texts containing emojis with hearts and similar symbols, but her claims were dismissed in part because she responded with emojis that seemed receptive to his advances. Thus, emojis were important evidence for both sides in the case. In Apatoff v. Munich Re American Services (2014 U.S. Dist. LEXIS 106665 (D.N.J. 2014)), the court denied a company’s motion for summary judgment in a wrongful termination case because several managers’ emojis in internal emails discussing the termination suggested an improper motive, contrary to their deposition testimony. These are but two examples of many similar cases.

Takeaways

Given the problems stemming from emoji use, companies in the consumer finance industry should consider implementing strict emoji-use policies. Because it is impossible to impose universally-accepted meanings on emojis among clients, colleagues, and other email or text counterparts, it may be most prudent to ban the use of emojis in employees’ business communications. The corporate IT department could also disable emojis on company systems.

Possible limited exceptions could be made for purely social communications with clients and colleagues. But the high risk of misunderstandings in a business context, which can give rise to disputes over contract formation, and potentially harassment or discrimination claims, seems to militate in favor of a bright-line rule against the use of emojis altogether. This may limit the spontaneity of business communication and make it more formal, but these downsides must be weighed against the real possibility of inadvertently forming (or breaching) contracts or other real consequences of emoji use. Another policy could require the insertion of disclaimers at the bottom of emails, expressly stating that emojis may form no part of any offer, acceptance, or agreement.

Unless and until the technology and societal understanding of emojis evolves further, the indeterminate meanings that can make emojis fun can also make them perilous in a business context. Companies must consider whether emojis are more trouble than they are worth.

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