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Can you go to jail for the use of an emoji?

(Credit: Associated Press)

Almost everyone is familiar with emoji, which are popular icons that are displayed in the sms-messages, e-mails and social media platforms. Emoji are often used as fun and light-hearted additions to the text, or to soften the blow of a message.

Emoji can be viewed as overly simplistic in some contexts. For example, the government was asked as Minister of Foreign affairs Julie Bishop has conducted an interview with just emoji, and described Russian President Vladmir Putin with an angry face.

A 2017 study revealed that the use of emoji in work e-mails, and impaired perception of competency.

But emoji can be taken very seriously in the context of the law. The use of emoji is a challenge for lawyers, judges, and legislators in different countries. In a legal context, emoji are becoming more recognised, not as a joke or ornament, but as a legitimate form of literacy.

Making a criminal threat via emoji

Perhaps the most disturbing use of emoji by their use in interpersonal messages in which it is unclear whether they change or strengthening of a prima facie criminal threat.

In New Zealand, a court considered the role of emoji in a Facebook message sent by a man to his ex-partner. The man wrote, “you are going to get it”, followed by a plane emoji.

The conclusion that the message and emoji generally that the defendant was “coming to get” his ex-partner, the court sentenced the accused to 8 months in prison on charges of stalking.

In 2016, a court in France convicted a young man of threatening his ex-girlfriend through a text message sent by the mobile phone. The court has held that shooting a gun emoji meant that the message amounted to a “death threat in the form of an image”. The court sentenced the defendant to six months imprisonment imposed and 1,000 euro fine.

The problem has also occurred in a number of cases in the US. In Virginia in 2015, a high school student was charged with computer harassment and intimidation of employees of the school. She had several messages on her Instagram account, the combining of text with emoji (a gun, a knife and a bomb).

The student claimed that they had never intended to be a threat and that the messages had been a joke.

In the same year, a 17-year-old in New York was charged with making a terrorist threat on his Facebook page after the posting of a police officer emoji and three guns in the direction of the.

The prosecutor claimed that the message is a clear threat to the police due to several factors:

• the identification of a class of victims (the police)

• repeated use of the gun emoji

• the placement of the emoji weapons close to the emoji of the officer’s head

• the fact that other violent messages were posted by the student earlier the same evening.

However, a grand jury failed to indict the defendant, at least in part because of concerns about whether the post really demonstrated that there is intent.

Liability in other threat cases, it is easier to set up. A high school student was convicted of making a criminal threat after she sent a series of tweets including a variety of emoji weapons.

Her claim that the tweets were meant to be a joke had failed.

Perhaps the highlight of emoji liability is occurred in a case in Spartanburg County, South Carolina. The suspects, who had previously physically attacked the victim, sent him a message, consisting of only emoji: fist, followed by a pointed finger, followed by an ambulance.

Thereafter, they were arrested for stalking. And, what was the threat in their message? That the victim would be beaten (fist) to the (pointed finger) in hospital (ambulance).

It is perhaps not surprising that those who are guilty of issuing criminal threats via emoji are all relatively young; after all, many studies identify that under the 30 as the most productive digital communicators.

With claims that more than 9 million Australians use of emoji, the determination of their meaning in a particular communication becomes more and more evident as an important legal issue.

This story was previously published in the news.com.au.

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