Eggplants, peaches and champagne: gleaning evidence from social media

It’s the Wild West as social media and digital technology intersect with the practice of law, and lawyers debated the impact of it all this week at the Ontario Bar Association’s annual Institute in Toronto.

For example, do you know the meanings of various emojis and emoticons? What does an eggplant or peach mean? (Paired, they connote sexual intercourse, apparently, and are often used in “sexting.”) Can sending one to someone via text or email, or on social media, form the basis for a sexual harassment complaint, asked Jason Wadden of Goodmans LLP in Toronto, during a panel presentation on obtaining evidence via social media, part of the Institute’s Civil Litigation session on surviving and thriving in the age of digital litigation.

Indeed, said Wadden, last year an Israeli court found that a string of emojis that included a champagne bottle, sent by text message, suggested a rental agreement, and fined the prospective tenants who withdrew from negotiations.

In that case, a young couple looking for an apartment had sent a series of colourful emojis in text messages to a landlord. Based in part on the emojis (the prospective renter had initially texted that “we want the house [string of emojis] just need to go over the details”), and on a string of correspondence between the parties, the landlord believed the couple had agreed to rent the apartment from him and took down the listing for it. When the couple stopped responding to his messages he took them to court.

The emojis showed intent, Justice Amir Weizebbluth of the Herzliya Small Claims Court ruled (in favour of the landlord), finding that the couple had “acted in bad faith” and fining them 8,000 shekels (about $2,873), representing a month’s rent as damages plus legal costs.

The exchanges between the parties, including the emojis, indicated an intent to do business, the judge found. In his opinion (as reported in English), he wrote:

“The … text message sent by Defendant 2 … included a “smiley,” a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, [it] naturally led to the Plaintiff’s great reliance on the Defendants’ desire to rent his apartment … These symbols, which convey to the other side that everything is in order, were misleading … ”

Wadden also referred to another emoji case in which the Michigan Court of Appeals ruled in 2014 that the addition of a “:P” emoticon meant that the message to which it was appended did not constitute defamation. In that case, a poster to an online message board had appeared to accuse a local official of corruption, and had concluded the comment with a “:P” emoticon.

The appellate court judges agreed with the defendant that this particular emoticon “is used to represent a face with its tongue sticking out to denote a joke or sarcasm”; so, they found, the comment could not be taken seriously or viewed as defamatory.

Understanding and interpreting emojis in digital correspondence is just one aspect of gleaning evidence from social media, of course.

Wadden cautioned that litigators must start gathering online evidence immediately, at the beginning of a case. In personal injury cases, for example, social media evidence was used to dismiss the claim of an individual who said he could no longer review movies due the nature of his injury, even while his Myspace page displayed recent movie reviews he had written. And fellow panelist Maia Bent, a plaintiff personal injury lawyer at Lerners LLP in London, recounted how she had used a LinkedIn account to discredit an expert witness, by showing that the witness’s profile showed no endorsements for a skill on which she was basing her expert testimony.

And at the beginning of litigation lawyers must have frank conversations with their client about their use of social media, Bent said. For ethical reasons, “you don’t want clients to destroy relevant evidence.” However, the courts have looked at the number of “friends” plaintiffs have on Facebook, for example, to evaluate their expectations of privacy; hundreds of friends, whom the plaintiff may not know but whose posts the friends can read, can indicate a lower expectation, and thus information gleaned from a Facebook page might be used as evidence.

Plaintiffs are often unsophisticated, Bent noted, and “everyone has a digital footprint now; you don’t want to be blindsided by something that’s out there.”