Two academics have urged the courts to use forensic linguists to interpret emojis — digital icons used to show expressions in texts — when these are presented in evidence.
University of the Western Cape language experts Zakeera Docrat and Russell Kaschula said in an academic article this would ensure correct interpretations.
One of the cases which triggered debate about the consideration of emojis as evidence, is that of Eastern Cape judge president Selby Mbenenge accused of sexually harassing secretary Andiswa Mengo.
The Judicial Conduct Tribunal investigating Mbenenge has files containing messages between the judge president and Mengo and many of the messages have emojis.
Mengo and Mbenenge have different interpretations of the emojis. Mbenenge argues Mengo showed reciprocation to his sexual advances through her messages and use of emojis.
The interpretation of the emojis will play a crucial role in the tribunal’s outcome.
Docrat and Kaschula have proposed the use of language experts by the judiciary when dealing with such cases.
“A single emoji will not be interpreted in the same way across cultures, even within a specific country such as SA, thereby further complicating emojis as forensic evidence and further contributing to cultural voids that may emerge in this process,” they said.
The academics argue the use of emojis in courts cannot be avoided because they play an important part in evidence.
“Ignoring emojis in a document can be equated to calling a witness to provide evidence and ignoring their facial expressions and body language.”
While the consideration of emojis as evidence has not been popular in SA courts, countries such as the US have dealt with such cases.
“In 2015, the California Court of Appeal in the US on review heard the case where a teenager posted a series of tweets about shooting people at her school. As part of the tweets, the accused included over 40 emojis, the majority of which were the laughing face.
“Based on the emojis and other shorthand text suggesting it was a joke, the accused argued that she did not intend to threaten any person at the school or carry out the threats.
“The court, however, held that the intention of the accused was present where a threat was intended.”
In SA, Docrat and Kaschula caution that courts will face cultural and linguistic challenges and need to be prepared. Emojis may be interpreted differently across cultures and their contextual interpretation was important.
“In 2020, one of the emojis included a hand where the fingers are pinched. The ‘pinched fingers’ emoji has different meanings across countries and cultures, but was aimed at Italians, where the emoji means ‘what do you want?’ (Gerken, 2020).
“The pinched fingers in the Italian context would not be confused, given that Italians use many hand gestures when communicating. In India, however, the ‘pinched fingers’ emoji is a gesture of asking if someone is hungry, while in Nigeria it means a back-and-forth argument.”
In 2019, Gqeberha former mayor Mongameli Bobani was in hot water after he sent MMC Marlon Daniels a message on WhatsApp containing a skull emoji. The message was sent on Halloween and Bobani contended it was a joke. Daniels believed it to be a “threat”. Daniels did not open a case against Bobani, but if this had happened the case would have seen courts deal with emojis used as evidence.
The academics also recommended the inclusion of the official indigenous languages to emojiTranslate, an app that translates emojis in more than 100 languages to assist courts and for courts to establish the true intention of the sender about how the emoji was received.
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