Is the law ready for visual communication? ¯\(ツ)/¯

A picture speaks a thousand words, that much is well-known.  What might be slightly harder to discern is exactly which words are being spoken.

The use of visuals as a supplement to written communication is nothing new.  While perhaps not something we come across often in a work environment, most of us would be comfortable interpreting "xxx" in a birthday card as an indicator of affection, or understanding that a statement accompanied by ;) or :P probably isn't meant to be taken too seriously.

However, images are increasingly used as an alternative to the written word.  It was widely reported last year that younger generations are moving away from Facebook to the more visual platforms of Instagram, YouTube and Snapchat - a trend which will have an impact not only on the way we work, but also on the kind of materials we work with.

Lawyers and other professionals spend much of their time honing language for precision - and courts have a long history of analysing the words used in contracts to determine exactly what was agreed.  The appearance of emoticons (or emoji) in court opinions is a far more recent phenomenon.  Attempting to analyse a series of emoji feels somewhat nebulous, yet an Israeli court recently ruled that:

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"conveyed great optimism".

To complicate things further, how two people use and interpret the same emoji can be wildly different as a result, for example, of different operating systems or even inter-generational and inter-community differences.  Many of us have come across a well-meaning relative inadvertently laughing at the most inappropriate moments when, of course, they're using "LOL" to mean "lots of love".  Similarly, "shruggie" is much known and loved but, I learned while researching this blog post, if you happen to be a Malayali, ¯\(ツ)/¯ may well represent a dance move from a famous film just as much as a shrug.

That said, there is already a vast body of case law in which the UK courts have made it clear that clauses will be interpreted not only in the context of the contract as a whole, but also in the broader commercial context, including custom and industry practice. Perhaps, then, it is only a matter of familiarity, and the process of interpreting emoji isn't that different after all.