Police and judges grapple with the meaning of ‘offensive emoticons’

gun emoji
The following is a reprint of an article by Victor Ferreira that appears in the National Post web site.

The cartoon gun, in the wrong hands, isn’t as harmless as it looks.

As communication continues to sway from the use of the written language police and judges are being left with difficult decisions to make, grappling to understand the meaning of emojis.

Emojis — or emoticons — are cartoon expressions used in text messages and online to display emotion. An emoji of a smiley face winking at the end of a sentence could signal flirtation. One of a smiley face sticking out its tongue could be used to show you’re joking. Others of frogs, beer and money could simply be used to substitute the written word.

U.S. judges have already been forced to rule on emojis in several high-profile cases taking place in the last two years. A grand jury threw out the case of a New York teenager in 2015 after police charged him with terrorism for an online post that included ๐Ÿ‘ฎ ๐Ÿ”ซ๐Ÿ”ซ. The Supreme Court absolved a Pennsylvania rapper because the online posts he was convicted of threatening his wife with ended in ๐Ÿ˜›. In December, a 12-year-old Virginia girl was charged with threatening her school in an online post that read: “meet me in the library Tuesday ๐Ÿ”ซ ๐Ÿ”ช ๐Ÿ’ฃ

This is going to be an issue all courts around the world have to grapple with.

And it’s only a matter of time before Canadian judges are scratching their heads over the same debate.

“An emoji is a pictorial language. It’s not a very precise one but a language nonetheless,” said Gil Zvulony, a Toronto-based internet lawyer.

“This is going to be an issue all courts around the world have to grapple with. An emoji in isolation…I don’t think that would cross any lines.”

Police are still new to the concept, suggesting there haven’t been cases where Canadians have been charged for using emojis — but it’s definitely possible.

Toronto police Const. Scott Mills suggested emoji used in a similar fashion to the U.S. cases could lead to charges of criminal harassment, threatening bodily harm and threatening death. But just a post or text message won’t be enough to land a charge.

“It all depends on what the person posting it meant by it,” Mills said. “Most likely it would just be part of the evidence because there would be other circumstances.”

Ottawa police Const. Marc Soucy agreed, but said figuring out their meaning isn’t the easiest job for police.

“When you’re looking at pictures or symbols, interpretation does play a fact,” Soucy said. “With words, you know what they mean but with an emoji, it can mean something else to someone else.”

Soucy didn’t remember Ottawa police dealing with emojis — but the one time the use of emojis played a small yet relevant role in a crime was in Ottawa, according to Canadian court archives.

An Ottawa man was found guilty in 2014 on several charges including sexual assault and criminal harassment. The man, who cannot be named because of a publication ban, sexually assaulted a woman after pretending to be an underground cabbie and driving her to his apartment.

The man stole the woman’s phone. When she bought a new one and kept the same number, the man sent her several abusive messages. Later, he pretended to be of her friends and continued to message her. She discovered his true identity when he sent her several messages containing ๐Ÿ˜ˆ — something he frequently used under his real identity.

After police issued a cease and desist order, the man continued to text the woman using what Justice Maria Linhares de Sousa determined to be “offensive emoticons.”

“I think he associated himself with that emoticon,” Marie Dufort, the Crown attorney who prosecuted the man said. “It was basically used as a signature or a thumb print.”

Dufort said the prosecution didn’t put a focus on establishing the meaning of the emoticon in court. The victim, however was frightened by seeing them in text messages, she said.

“Sometimes she just got a ‘hi ๐Ÿ˜ˆ’ and that made her extremely fearful. I don’t think the issue is the use of emoji or emoticon. It’s in the context that it’s used.”

Context was everything for Fred Pratt, the New York Legal Aid attorney who represented Osiris Aristy, the teen a grand jury absolved of terror charges. It was just a way for a kid from Brooklyn to posture, he said.

“It’s a way of saying I’m really tough and no one is going to f— with me,” Pratt said. “It’s an absurd stretch to think he posted it to threaten a civilian population.”

Grand jury deliberations are secret so it’s not known what lead to the charges being dropped. Pratt said there’s no evidence Aristy wanted police to see his online posts.

“If he had put that in an email and sent it to the 83rd precinct then that would arguably be a stronger case,” he said.

The results of Aristy’s case aside, Pratt wouldn’t be surprised to see a continued uptick in charges involving emoji use. That includes courts in Canada and around the world.

Before that happens, Canadians may want to think twice about who they ๐Ÿ˜‰ at because the law system won’t ¯\_(ใƒ„)_/¯.