Emoticons or “emojis” are typically seen as playful additions to an informal message, but their widespread use has seen them included in everything from work message groups to family chats.
This has resulted in a number of US court cases where emojis have been submitted as evidence in a trial, writes Caleb Segrest out of Norton Rose Fulbright’s American office.
“Essentially, the inclusion of a single emoji can alter the meaning of the accompanying text,” he said.
Alexandre Loktonov – AHRC Fellow at the Kluge Center and an expert on hieroglyphics – likens emojis to what are known as ‘deteriminatives’ in Egyptian hieroglyphics – signs, which, without having a phonetic value of their own, can ‘color’ the meaning of the preceding word or phrase.
While there have been no specific “emoji” specific cases in South Africa, a team of from Norton Rose Fulbright’s technology sector said that the same principles would likely apply should a local case does occur.
“Emoticons and unicode images are not specially classified under South African law, but they fall within the general definition of a ‘data message’ in terms of the Electronic Communications and Transactions Act (ECTA),” the law firm said.
“Data messages are enforceable under South African law and emoticons and unicode images could therefore be admissible as evidence before a court if they testify to a party’s communication.”
“There may be issues of ambiguity which could result in a court not being able to place reliance on them for meaning but the same could be said of a text message, email, letter, memorandum or any other kind of written communication.”
The team said that while it is unlikely that any specific emoji regulations will be introduced in South African law, all Unicode images (including emojis) must be interpreted in the same way as the words they represent.
What can get you into trouble
The team at Norton Rose Fulbright South Africa highlighted some of the current regulations in which the use of an emoji could lead to a potential issue.
This includes misleading advertising, misrepresentation and violent or pornographic images.
Suppliers may not make false, misleading or deceptive representations in relation to goods and services (whether expressly or implicitly) under the Consumer Protection Act (CPA).
Emojis, which are often capable of multiple interpretations, could result in an ambiguous representation about goods or services.
“They would likely be considered in the context of the words with which they appear,” the firm said.
“Any use of emojis is likely to be a relevant factor in determining whether information relating to goods and services was provided in plain and understandable language.”
Failure to comply with the CPA could result in a complaint being made to the National Consumer Commission (NCC).
It can then issue a compliance notice requiring specific steps to be taken, failing which the advertiser can face an administrative fine of up to R1 million or 10% of the previous financial year’s turnover (whichever is greater) or prosecution.
Penalties on conviction are a fine, imprisonment of up to 12 months, or both.
Aggrieved consumers may also make civil claims for damages.
Similarly, while the Advertising Standards Authority of South Africa (ASA) makes no reference to emojis, their use would likely be considered by the ASA in determining whether a particular advertisement contravenes the Code, the law firm said.
While the Electronic Communications and Transactions Act (ECTA) does not specifically refer to misrepresentation, online suppliers (such as eBay or Takealot) must make certain information available on the website where the goods or services are sold.
This includes a sufficient description of the main characteristics of the goods or services to enable a consumer to make an informed decision on the proposed electronic transaction.
Use of emojis which amounts to misrepresentation about the goods and services may not meet this requirement.
Complaints may be referred to the National Consumer Commission to be dealt with in the same manner as under the CPA.
The upcoming Cyber crimes and Cyber security Bill creates “cyber fraud” as a new offence.
“The use of emojis in a manner which is intended to defraud a person constitutes cyber fraud,” said Norton Rose Fulbright.
“It may be difficult to prove fraud purely on the basis of emoji use, but this will depend on the circumstances of each case. On conviction, the court may impose an appropriate sentence on conviction such as a fine, imprisonment or both.”
“Misrepresentation through the use of emojis could also be the basis for a civil action for delictual damages, if the misrepresentation is wrongful, either fraudulent or negligent and causes another person harm,” the firm said.
“If the misrepresentation induced a person to enter into a contract, they would be entitled to rescind that contract if the misrepresentation was material and the other party intended that misrepresentation to induce them to enter into the contract.”
Hate speech and harassment
The Promotion of Equality and Prevention of Unfair Discrimination, 2000 specifically prohibits hate speech and harassment in the context of race, gender and disability.
Section 10 prohibits hate speech on the grounds of race, gender or disability, where it demonstrates a clear intention to be hurtful, be harmful or incite harm or promote or propagate hatred.
The section currently only refers to the communication of “words”, but if the issue of hate speech using emojis were to come before a court, the application of the section may be extended. In any event, in most instances the emojis would be accompanied by words and would be considered in that context, the law firm said.
This extends to section 11 which prohibits harassment, which is defined as “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to:
- sex, gender or sexual orientation; or
- a person’s membership or presumed membership of a group identified by race, gender or disability or a characteristic associated with such group.
“Emoji use which falls within the definition of harassment would fall foul of section 13. Again, it would in most instances be accompanied by words,” said Norton Rose.
“Claims of hate speech or harassment under this act can be instituted before an equality court, which can make any appropriate order in the circumstances, including the award of damages to the affected person.”
Movies, games, internet and other publications
The Films and Publications Act, regulates the classification and distribution of films, games and certain publications by the Film and Publication Board (FPB).
“Publication” is extremely widely defined and includes “any message or communication, including a visual presentation, placed on any distributed network including, but not confined to, the Internet.
“This would include, for example, communications on social media which contain emojis,” the firm said.
Practically, the FPB is only likely to become involved in online communications containing emojis as a result of a complaint.
This would result in the publication being refused publication because it contained child pornography, propaganda for war or incitement of imminent violence etc) or classified “XX” if they contain explicit sexual conduct which violates or shows disrespect for the right to human dignity of any person, bestiality, incest, rape or conduct or an act which is degrading of human beings etc.
It is an offence to publish a publication which has been refused classification or classified “XX”. Penalties on conviction are a fine, imprisonment of up to five years or both.
“As mentioned above, it is difficult to see how emojis on their own could convey messages of the type envisaged above. However, because of the broad meaning of ‘publication’ they are likely to be considered when assessing the content of a publication as a whole,” said Norton Rose.