For centuries, judges and juries have been evaluating non-verbal clues, such as a wink, a nod, a smile, that can serve to provide insight into a person’s state of mind and intent. Nowadays, judges and juries are grappling with how to interpret smiley faces, smiley faces with winks, winking smiley faces with a tongue sticking out, and other emoticons and emoji used to express emotions and provide context for texts and social media posts. The number of these symbols has exploded to around 1,300 according to the Unicode Consortium, which standardizes text characters and emojis. Such symbols, however, can be interpreted in myriad of ways and differently as between sender and recipient.

A serious sentence can turn into a joke by inserting an emoticon or emoji. Words may be completely replaced and ambiguity can result. It’s complicated. Maybe the sender’s smiley face was meant to make light of a situation, or show a sinister grin, or mask true intent. In June of last year, a Pennsylvania man’s guilty conviction of threatening his ex-wife was overturned. His defense partially relied on his use of an emoticon in his online posts, that he said should be interpreted to show that he was not serious about harming her.

Unless the context of the use of the symbol is clear – such as the identity of the recipient, the topic of “conversation,” understanding how the community typically uses the symbol, etc. – the intent may not be clear. In a court of law, either side can use various interpretations of an emoticon or emoji to support its case. In 2014, the Michigan Court of Appeals ruled that “a reasonable reader could not view the statement [at issue] as defamatory” because the commenter was clearly making a joke. The court determined that a “:P” emoticon is used “to denote a joke or sarcasm.” A year ago, the presiding judge of the Silk Road trial that involved the prosecution of the creator of a website where anything and everything could be bought and sold, including illegal drugs, ruled that when introducing online communications into evidence, the original emoticons must be included as they originally appeared throughout the text. On the other hand, a federal district judge in Michigan recently determined that the use of an emoticon “does not materially alter the meaning of the text message.”

Digital records subject to discovery in civil or criminal litigation present opportunities for arguing over what specific emoticons or emoji really mean in the context of their use in any given situation. Remember that any symbol you type can and will be used against you in a court of law!