On the legal significance of emoticons

Even cute little smiley-faces, of the kind that is now ubiquitous in communication, can have all sorts of legal consequences.

This article highlights a peculiar aspect of what is known as ’emojis’ which, we dare say, will have escaped the attention of most readers. More specifically, we take a look at whether smileys can be used in day-to-day correspondence without any limitation, “with impunity”, so to speak, or whether these cute pictures actually have the power to trigger legal consequences.

Since the first emoji was programmed by Shigetaka Kurita in 1999, the funny little images have over the years clearly become an integral, entirely quotidian part of our communication. We use them to replace a variety of words and expressions, or to help express or emphasize the writer’s emotions in a concise manner and to relate these emotions to the recipient. Some emoticons are rather neutral in meaning; however, depending on the situation, others may be found demeaning or even defamatory.

The matter is compounded by the fact that so much of our communication today plays out in social media and more generally online, where emoticons attain a far greater reach than in traditional communication between two-private law subjects. In fact, it is no longer exceptional to find the courts concerning themselves with the legal implications of emoticons. The German courts which had to decide the case of the employee of a mechanical engineering business who had used pig head and monkey head emojis to refer to a work superior in an off-duty discussion on a social network could tell us a thing or two about it! The case’s origin was an initially rather innocent thread under the photograph of a broken hand in which employees commented on the work accident of one of their colleagues. One such employee used animal emoticons – a “pig head” and a “monkey head” – to refer to (and, it must be said, deliberately insult) a superior who, to make matters worse, had rather distinct, characteristic facial features. When the employer learned of this, they summarily dismissed the employee who had used the (in the given context) highly offensive emoji, even though that employee looked back on a work history with the employer of more than 15 years. According to the employer, referring to one’s superior on social media before colleagues by using abusive signs of this kind is nothing short of humiliating.

However, the dismissed employee decided to fight the dismissal and filed action against the employer on grounds of wrongful termination. The German labor courts of the first and second instance did acknowledge that demeaning the superior by posting the drawing of a pig head or monkey head was a particularly gross offense, and noted that it was principally conceivable to terminate an employee primarily on grounds of a grave insult. At the same time, though, both courts found that summary dismissal was a disproportionate response and stated that the employee should first have received a warning. The courts ruled that, with a view to the previous unblemished work record of the employee, who had been with the employer’s firm for more than 15 years, the employee’s interest in continuation of their employment must be taken into account and prevails over the employer’s interest to swiftly “get rid of” such an employee. As we can see, the use of emoticons can have legal consequences. It is fair to say that it’s not possible to hide behind these pictorial symbols. Things that trigger legal consequences in written or oral statements cannot be downplayed (and those consequences cannot be evaded) by using pictures (emojis) instead of words.

Within the domestic context, i.e., “under Czech circumstances”, we have yet to come across cases of this kind. Emojis have indeed made their appearance in Czech court cases, but the way in which they’re used to communicate emotions has been of rather marginal importance for the assessment of the legal consequences in those cases; consequently, the courts have been placing their use within the greater context of the overall dispute in question. In other words, in our neck of the woods, the use of emojis has not yet attained the intensity at which it would directly trigger criminal-law or labor-law consequences. We will continue to monitor the direction which the interpretation of emojis in Czech law is taking, and inform you about the further development.

Judgment 1 Ca 290/15 by the Pforzheim Labor Court of 8 December 2015
Judgment 4 Sa 5/16 by the State Labor Court of Baden-Württemberg of 22 June 2016

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