Social Media in the Dock: The Complex Role of Emojis in Legal Disputes

South Africa has become a highly litigious country, as evidenced by the growing court rolls across the nation. This increase in litigation can be attributed to various factors, including greater public awareness of legal rights and recourse, the availability of litigation funders, and increased resources to pursue justice.

In recent years, it has become common for social media content to be introduced as evidence in courts and other dispute resolution forums. Depending on the nature of the dispute, this content may include emojis, stickers, GIFs, and other visual representations—particularly in cases involving defamation, sexual harassment, and family law. One notable recent example is the Judicial Service Tribunal hearing concerning a sexual harassment complaint against one of the Judge Presidents, where the interpretation of WhatsApp emojis became a key issue. This article highlights some of the challenges courts and alternative dispute resolution (ADR) platforms face when interpreting social media emojis and other digital visuals.

South African law provides established rules for interpreting legislation, contracts, and other legal texts. These include principles derived from the Constitution, the Interpretation Act 33 of 1957, and common law rules of interpretation. Courts and ADR platforms also rely on expert opinions when interpreting certain spoken or written words, especially those tied to specific ethnic groups, cultures, or linguistic nuances.

However, there are currently no standardised rules or regulations governing the interpretation of social media emojis and other digital visuals. The challenge is further compounded by the evolving nature of these symbols, their complexity, and the fact that the meaning they convey often depends on personal factors such as age, cultural background, personal values, and geographical location. These are some of the unique challenges the Fourth Industrial Revolution presents to our legal system.

Although no formal framework exists for interpreting social media emojis, existing legal principles may be adapted, where possible, to provide guidance. Over time, judicial precedents will emerge, helping to establish a body of jurisprudence in this area. Until then, inconsistencies and conflicting interpretations are likely to arise as courts navigate this evolving landscape.