Let’s say I sent you an unsolicited smiley face -- :) – to your personal phone number. Not that I would, of course, but exercise some hypothetical muscle with me.
What if it had a semicolon instead of a colon for eyes? What if it used a lowercase “p” for a mouth instead of a standard parentheses? Would that, somehow, be less appropriate? What draws the line between friendly and too friendly?
As emoticons and emojis become more commonplace in the office, we may find out… well, eventually. However, in modern corporate law, eDiscovery technology is having a tough time sorting out all of the details. In short, there’s no standard to interpret the meaning (or intended meaning) of these little dots and dashes. I believe it was Freud that once said, “sometimes a smiley is just a smiley.”
That, of course, doesn’t make it any less frustrating. Emoticons clearly have encapsulated meaning that extends well beyond the punctuation marks they are comprised of, but their meaning in eDiscovery is far less clear.
The problem with non-verbal text communication is that it’s extremely common, yet often is rendered in ways that the original sender didn’t quite intend.
Let’s look at a familiar example. For some inexplicable reason, Microsoft Lync (or Skype for Business, whatever it is these days) interprets a capital “R” between parentheses as the God-anointed symbol for a rainbow, rather than the rights-reserved mark ( ® ) that you might be more familiar with in a business setting. This has made at least one chat with the company lawyer slightly awkward for me. Similarly, putting a capital “B” in parentheses results in an emoji that is much more suited to happy hour than the enumerated list that I was originally aiming for.
Perhaps notable, from a legal standpoint, is that each of these minor transgressions is usually followed by a salty string of expletives cursing the misaligned emoji replacement for whatever I originally intended. Given our current state of technology, I can’t help but wonder how that would play out during the discovery process.
But, really. Isn’t this all conjecture? Does corporate counsel really need to worry about the meaning of smileys?
For those of you wondering (or secretly self-flagellant) the answer is a resounding 10-page yes. Emoticons have actually been used in a court of law, so there’s no turning back. (Sparknotes summary: the defendant used a winking smiley face on social media in response to a friend’s comment, and the court eventually ruled that she was simply mirroring the smiley face her friend used originally. Yes, these are your tax dollars at work).
In any case, it might be time to think twice about pulling the trigger on that emoticon in your next chat with your coworker. If nothing else, it may save your inside counsel a bit of time in the long run.