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Emoji’s and the Law


For most people, Emoji’s are a fun and easy way to convey an idea or a feeling to another. We have come a long way from the humble beginnings of the smiley face.

When is an Eggplant not an Eggplant?

Due to the explosion in use of mobile devices and the coinciding increase in the use of emoji’s, the courts are regularly being asked to interpret what the meaning behind emoji messages is.

The offence of “using a carriage service to menace, harass or cause offence,” is a Commonwealth offence and is contained in section 474.17 the Criminal Code Act 1995 which states:

A person is guilty of an offence if:

  • The person uses a carriage service; and
  • the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.”

So the question is raised – when is an eggplant not an eggplant? In the complex language of emoji, an eggplant can be used to represent a penis, clearly that would need to be in context or understood by the receiver. However, it poses the interesting question of intent, and if it could be proven in a court of law.

In a case from the United States (as reported by the ABC in an article dated 5 December 2017) a person was arrested after sending a fist, a pointed finger and an ambulance:

Whilst the intention of this message may be more obvious to some, this may be no more offensive or intimidating to someone being threatened with sexual violence by a picture of an eggplant. The difficulty for the courts is establishing what is meant by an emoji and if it can be construed as menacing, harassing or offensive.

In a Lawyers Weekly article dated 19 April 2018, the author Edwina Oliver talks about the ambiguity of emojis and the implications to the law:

Their imperfect emotional representations vary by region, group and even individual, making them impossible to objectively interpret. These challenges are exacerbated by cross-platform inconsistencies in emoji presentation… Though they’re ambiguous, emojis do convey meaning and, therefore, have legal implications attached depending on circumstances. Lawyers need to consider when they’re legally binding or convey intent.

What is clear is that emoji’s have become a regularly used form of communication and their impact on the legal system in Australia is in it earliest stages.

Charged with Using a Carriage Service to Menace, Harass or Cause Offence?

This is a serious offence which carries a maximum penalty of three years imprisonment.

If the matter is finalised in a Local Court, however, the penalty is limited to twelve months imprisonment and/or 60 penalty units.

If you have been charged with this offence, please contact Armstrong Legal as soon as possible to receive an obligation free consultation with our Criminal Law team on 1300 168 676.

Image Credit – Oberart © 123RF.com

Written by Tyson Brown on July 4, 2018

Tyson has a down to earth, straightforward approach to life and the law, one which is well received by all who meet him. Tyson has the ability to relate to all clients on a personal level, having spent many years prior to his legal career in customer service and hospitality. View Tyson's profile


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