Introduction
In the digital age, communication has increasingly moved away from traditional text-based form to more expressive visual methods such as emoji's. Emoji's are small digital icons representing emotions, objects or ideas are now a part of everyday online interaction. From social media conversation to formal interactions via emails, emoji's are often used to convey tone, humor and emotions that might otherwise be lost in plain text. However, with this new mode of communication comes the challenges of interpreting the emoji's in the context of the law.
The Hon'ble Madras High Court in an important movement in the intersection of law and the digital communication, specifically addressing the legal implications of emoji's in cases of defamation, sexual harassment and online misconduct. This judgement is noteworthy for its exploration of the legal dimensions of emoji's in Indian law and raises important questions about their role in digital discourse.
Further the article dwells into the International prospective on the use of emoji's, how the international Courts interpret the use of emoji's and whether penalizing on the use of emoji seems trivial.
Interpretation and Implication of 'Usage of Emoji's' in Courtrooms...
Use of 'Laughing Smiley' in an official WhatsApp Group.
The Instant case of I. Linga Bhasker v. State of Tamil Nadu 20181 presented before the Hon'ble Madurai Bench of the Madras High Court, involves the use of the emoji in an official communication platform, used to share official complaints or deficiencies of the services.
Brief facts of the case:
An emoji was used as a part of the conversation in an official WhatsApp group which is intended to be used by the members for sharing complaints or deficiencies in the services of BSNL. All the members of the official WhatsApp Group are the employees of Bharat Sanchar Nigam Limited (BSNL). The complainant in the case, is the Divisional Engineer (Rural), who has posted a video footage of three customers who have spoken their grievance about the BSNL coverage services. To which the defendant, I. Linga Bhaskar and few other employees, had sent an emoji, one after the other, namely, a laughing face with tears, since the meaning of the emoji is laughing till you cry, the complainant annoyed by the emoji as a revert to the video she posted, to which she also felt humiliated and stated that she was crying all the night on July 31, 2016 and that the act of sending an emoji in the official group has lowered her reputation as they considered it as a matter of joke. The complainant raised a complaint before the Superintendent of Police which was referred to the District Crime Branch, Tuticorin, considering the emoji to be defamatory in nature and which intends to harm the reputation of the complainant. A case was registered for offences punishable under:
- Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998,
- Section 3 (1)(r), 3(1)(t), 3(1)(u) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and
- Section 67 of the Information Technology Act, 2000.2
The Legal Issues Raised
The aforesaid facts of the case raised several critical legal issues that are emerging in the context of digital communication and the Court has to determine, whether the use of emoji's constituted sexual harassment, defamation or an act of discrimination?
The case involved several provisions, each raising distinct issue.
- Sexual Harassment under the Tamil Nadu Prohibition of Harassment of Women Act, 1998-
The issue was whether the use of emoji constituted verbal or non-verbal sexual harassment that could outrage the modesty of the Complainant?
- Discrimination under the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Amendment Act,
2015.
The Issue was whether the emoji was used to humiliate or intimidate the complainant based on her Scheduled Caste Identity. - Transmission of obscene and offensive content under the
Information Technology Act, 2000-
The Court has to assess whether the use of the emoji meet the criteria of obscenity and offensiveness or has electronically transmitted offensive or obscene content?
The Courts Observations
The Hon'ble Madurai Bench of the Madras High Court on June 5, 2018, made the following key observations in its Judgement:
- No evidence of Harassment
The Court observed that the posting of the emoji is to express 'ones feelings' and that everyone has a right to express themselves. It is an act that may offend the complainant but that is not an act attracting Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 19983. Therefore the use of 'emoji' did not satisfy the criteria of sexual harassment under Section 4 of the Act. It also clarified that while the complainant felt humiliated but the emoji's was not intended to outrage her modesty or cause harm and does not fulfil the criteria of outraging modesty of women under the law. - No Caste Based Discrimination.
The Court observed that the present case is not the case where the emoji (smiley) was used intended to humiliate the complainant, as she belongs to the Scheduled Caste / Scheduled Tribes. Considering that, the Court is unable to find any reason to sustain the complaint as one attracting the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. The Court in its judgement also admitted that some of the petitioners also belong to the Scheduled Caste / Scheduled Tribes community. The reading of the entire contents of the FIR and the allegations made against the petitioners, the use of emoji do not attract Section 3(1) (r), 3(1) (t), 3(1) (u) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and that there is no evidence to suggest that the emoji was used with caste-based intent or malice. - No Obscene or Offensive Content.
Regarding the obscenity or offensive content under Section 67 of the Information Technology Act, 2000, The Hon'ble Court is of the view that in order to attract a legal penalty under this provision the content should be obscene or offensive in nature or the publication or transmission of any material which is lascivious or appeals to prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained in those materials.4 The Court observed that, allegations do not indicate any publication of obscene material which is lascivious or appeals to prurient interests. And Hence the Court is of the clear opinion that the complaint does not disclose an offence under Section 67 of the Information Technology Act.5
The Hon'ble Madras High Court's Decision on Use of Emoji's in Official WhatsApp Group...
June 5, 2018, the Hon'ble Mr. Justice S.S. Sunder pronounced the judgement stating, that no cognizable offence is found on the face of the complaint and ordered to quash the FIR. The Court observed that use of emoji did not meet the legal threshold for sexual harassment, defamation, discrimination or the transmission of offensive material in the present case and that everyone has the indefeasible right to express their feelings and share their ideas. The Court explained that the laughing emoji was sent as a reaction to the manner of customers explaining the deficiencies in the BSNL coverage services and was intended as a revert to the video posted by the complainant.
The Court also observed that since the complainant in her individual capacity felt offended, the petitioners shall show their regret to that, to which the petitions collectively filed an affidavit recording their regret for posting such emoji. This Judgement underscores the importance of context, intent and evolving legal interpretations in addressing disputes involving technology and digital communication.
'Thumbs Up' emoji Under Criminal Law...
In another case of Director General, Railway Protection Force v. Narendra Chauhan, on June 20 2023, presented before the bench of the Hon'ble Mr. Justice G.R. Swaminathan, Madras High Court, adjudicated upon a dispute over the use of a 'Thumbs Up' emoji.
The brief facts of the case: the 'Thumbs up' emoji was put to test before the Hon'ble Madras High Court used by an employee of the Central Railway Protection Special Force. The employee was terminated from services for putting a 'thumbs up' emoji as a reply to a message in a WhatsApp group where a video of a constable murdering the Assistant Commandant was shared. The Railway Force interpreted the emoji as that the employee was in the moral support of the accused and was celebrating the murder. Disciplinary proceedings were conducted against the employee and he was dismissed from service over the 'Thumbs up' emoji sent by him in the WhatsApp group. The Hon'ble Madras High Court interpreted the 'Thumbs up' emoji with the context and observed that 'Thumbs up' could also be construed to be an alternative for the word 'ok'. Thus, the Hon'ble Court in this case observed that sharing of the said emoji symbol did not amount to celebrating the murder, but an acknowledgement of the fact that he had seen the message and thus, the court directed for the reinstatement of his service of the employee.6
A 'Thumbs Up' emoji under the Contract Law...
On August 17, 2023, the Canadian Court in South West Terminal Ltd v Achter Land and Cattle Ltd 20237 interpreted the use of 'Thumbs Up' emoji.
The Court in this case accepted a 'thumbs up' emoji as a valid electronic signature to a contract.
The court consider this as a non-traditional method of signing an agreement as it originated from the seller's mobile phone and the 'Thumbs Up' satisfied the two purposes of signature- identification and the conveyance of the acceptance of the contract.
In this case the question before the Hon'ble court was whether there was any valid contract between the buyer and seller to deliver 87 metric tons of flax for a price of $669 per metric tons in 2021. The buyer, subsequent to a conversation on mobile, signed the contract and then took a photo of it using his mobile phone and sent it to the seller with the message "Please confirm flax contract." The seller texted back a 'thumbs up'.
The seller contented that the emoji of 'thumbs up' meant an acknowledgement of receiving the message while the buyer said it was meant to be an acceptance of the contract.
While adjudicating the case, Hon'ble Justice Keene looked into the meaning of 'thumbs up' in dictionary, which stated that it 'is used to express assent, approval, or engagement in digital communications, especially in western countries.'8 The Court observed that there was consensus ad idem between the buyer and the seller and observed that the contract was enforceable. And the Court of Hon'ble Justice Keene, ordered the seller to pay damages for breach of the contract.
Therefore, a 'Thumbs Up' emoji under the Contract law is interpreted as an acceptance to the offer made. However, each case has to be construed on the basis of the context and the Intents of the parties involved.
These are few of the challenges of the new digital age which would open up floodgates to allow all sorts of cases going forward asking for interpretation as to what different emoji's imply.
The Use of Emoji's – 'Champagne Bottle', 'Dancing Woman' and a 'Smiley Face'.
Interpretation of Israeli's Herzliya Small Claims Court, in 'Dahan v. Shacharoff' 20179
It is a notable case in which the Court interpreted the use of emoji's in a digital communication between a landlord and the prospective tenants. A landlord interprets a string of emoji's, including a 'champagne bottle', 'a dancing woman' and a 'smiley face', as an expression of intent to lease an apartment. The Court ruled that the emoji's suggested a level of 'optimism' but they do not constitute a binding agreement to lease the property.10
The United States District Court in Rebecca Bellue v. East Baton Rouge Sheriff, ET AL 2018.11 Use of 'Heart' and 'Winking' emoji.
Dealt with an issue, that whether penalizing for the use of an emoji is Trivial? The Hon'ble Court in this case observed, that 'Sending a heart emoji accompanying a 'Good Morning' message to an employee or sharing a 'winking' emoji after remarking on a colleague's looks amounts to sexual harassment at workplace.'12
The Hon'ble Supreme Court of United Kingdom in Stocker v. Stocker13 on April 3rd, 2019 Observed:
That the defamatory potential of emoji's when combined with the text. A string of angry face emoji next to defamatory statements was argued to amplify the defamatory intent.14
Hence, the increasing prevalence of emoji's in digital communication has led to their growing significance in legal disputes worldwide. The Courts worldwide are now taking up matters of use of emoji's, addressing the questions of intent, context and meaning across various legal domains and laws such as contract law, criminal law, Workplace sexual harassment disputes and defamation. Therefore, to come to a conclusion on whether the emoji used is offensive or violative of the rights of the others depends on the context in which it is used and the mens rea of the user to be analyzed.
To address these new age complexities, Courts must develop consistent principles for analyzing emoji usage while considering contextual evidence and experts' testimony where necessary.
Surbhi Gandotra, Associate Advocate at S.S.Rana & Co. has assisted in the research of this article.
Footnotes
1. I. Linga Bhasker v. State of Tamil Nadu AIRONLINE 2018 MAD 273
2. https://updates.manupatra.com/roundup/contentsummary.aspx?iid=14739
3. Section 4- Penalty for harassment of women.—
Whoever commits or participates in or abets harassment of women in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than ten thousand rupees.
4. Section 67. Punishment for publishing or transmitting obscene material in electronic form -
Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
5. https://indiankanoon.org/doc/81284145/
6. https://www.livelaw.in/pdf_upload/the-director-general-and-others-v-narender-chauhan-527642.pdf
7. 2023 SKKB 116
9. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3133412
10. Ben-Yishay, C. (2019). Judge in Israel has Ruled that Emoji can Prove Intent in a Landlord/Tenant Case
11. CIVIL ACTION NO: 17-00576-BAJ-RLB
12. https://case-law.vlex.com/vid/bellue-v-sheriff-civil-890902466
13. UKSC/2018/0045
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