Should we use emojis in legislative drafting?

Author: Jane Hall

Emojis are ubiquitous in modern communication. In 2021, Unicode reported that 92% of the world’s online population use emojis. Emojipedia estimates that over 900 million emojis are sent each day without text on Facebook Messenger, and that by mid-2015, half of all comments on Instagram included an emoji.

Given how frequently we use emojis, it should come as no surprise that emojis are making their way into the law (a recent episode of the Law Report on Radio National explored this development). A recent decision of the King’s Bench for Saskatchewan made headlines when the court determined that the 👍 emoji could be a legally binding indication of agreement to a contract (see South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116). This decision was one in a growing line of cases where courts have been asked to interpret the meaning and legal effect of different emojis (see Eric Goldman, ‘Emojis and the Law’).

This article explores another potential use for emojis: legislative drafting. The ALRC is currently preparing its Final Report in the Financial Services Legislation Inquiry. Throughout the Inquiry, the ALRC has explored ways to improve the navigability and comprehensibility of legislation. If emojis are already cemented in our daily lives, could they also help make legislation easier to navigate and understand?

After examining how the law has started to use emojis and other images, this article considers:

• 🥸 the characteristics of good legislation and the goals of legislative design;
• 🎨 how emojis could be used in legislation; and
• 🏆 whether emojis could help achieve the goals of good legislative design.

While emojis may improve the navigability and comprehensibility of legislation, these benefits are (for the foreseeable future at least) likely to be outweighed by the additional uncertainty 🫤 and ambiguity 🙃 emojis introduce.

🤔 Why consider using emojis in legislation?

Emojis are not just playful devices to express our sense of humour, or to send subliminal messages. They can have serious legal consequences.

For example, in In re Bed Bath & Beyond Corp. Securities Litigation, 2023 U.S. Dist. LEXIS 129613 (D.D.C. July 27, 2023), the US District Court found that the use of the ‘full moon face’ emoji (🌝), in a Tweet by the respondent, Cohen, about shares in a particular company could be understood by shareholders as an indication that the stock would increase in value and that shareholders should therefore buy or hold stocks. The Court stated:

In the meme stock “subculture,” moon emojis are associated with the phrase “to the moon,” which investors use to indicate “that a stock will rise.” So meme stock investors conceivably understood Cohen’s tweet to mean that Cohen was confident in Bed Bath and that he was encouraging them to act.

In South West Terminal, the Court determined that the 👍 emoji could act as a signature on a contract for the delivery of flax. The court recognised that the use of the 👍 emoji was a ‘non-traditional’ means of signing a contract but that nonetheless, in circumstances where the parties had previously reached similar agreements via text message, it was a valid way to convey the purposes of a signature.

These cases can be seen as part of a broader trend of embracing images to affect legal interactions and to make the law more accessible. Initiatives such as Comic Book Contracts and Creative Contracts have been exploring the use of visual and cartoon-based contracts. Cartoon-based contracts use images to convey the key terms of the contract. Sometimes the images are accompanied by simplified text but other times the contract only contains images. These types of contracts have been particularly useful for linguistically diverse workplaces. For example, Creative Contracts developed an employment contract for a citrus farming business in South Africa, a country in which multiple languages are spoken. The cartoon-based contracts produced by Creative Contracts ‘reduced the induction time from four hours to 40 minutes’, reflecting the potential for images to effectively convey information.

Source: Creative Contracts (https://creative-contracts.com/clemengold/)

In 2018, Aurecon and the University of Western Australia co-designed the first employment contract for an Australian workplace that combined text and images to make concepts like probation and leave entitlements more easily comprehensible to a workforce that did not have legal training.

Legislative drafters too have been experimenting with different ways of presenting information to improve the ‘readability’ of legislation. For example, guidance from the Office of the Parliamentary Counsel emphasises the use of ‘readability aids’, which includes the use of visual aids such as flow-charts (see, eg, Evidence Act 1995 (Cth) ch 3, which uses a flowchart to show how the Chapter applies to particular evidence).

If we are already using emojis in ways that affect legal relations and to develop contracts, and we’re already experimenting with different readability aids, it begs the question: is the next logical step to use emojis in legislation? Could emojis help to make legislation more accessible?

🥸 What does good legislation look like?

The question ‘what makes for good legislation’ will be answered differently depending on who you ask. In this article, I assess the quality of legislation by reference to how easy it is to access and use.

The ALRC has previously published on good legislative design and user-friendly legislation, and has proposed seven working principles for the structuring and framing of corporations and financial services legislation in Interim Report C. This article focuses on the concept of ‘mental models’ that enhance the navigability and comprehensibility of legislation. I consider that good mental models focus on the following:

• 👌 simplicity (improving the coherence and clarity of the legislation);
• 💡 comprehensibility (highlighting important matters that may not be immediately apparent); and
• 🧭 navigability (both within and between Acts).

These three elements will form the criteria for assessing the potential effectiveness of emojis in legislative design.

🎨 How could emojis be used in legislative drafting?

Using emojis in legislative drafting does not mean turning legislation into a visual cryptic crossword by replacing all references to ‘Australia’ with the 🦘 or 🐨 emoji, or substituting the 🧑‍⚖️ emoji for the word ‘court’. Rather, emojis could be used as visual aids, or signalling devices, to improve the navigability of legislation by:

• ❗ highlighting important matters, such as offence provisions;
• 🔎 identifying matters that may not be immediately apparent on the face of the provision, such as defined terms or notional amendments; and
• 👩‍🎨 improving the visual appeal of legislation.

🧪 Case study: section 791A of the Corporations Act 2001 (Cth)

To illustrate what this could look like, I took a current provision from the Corporations Act 2001 (Cth) and inserted emoji ‘signals’. The provision is currently located in Chapter 7 of the Corporations Act, a chapter described as being like an old cupboard in need of a good spring clean 🧹.

The provision currently reads:

Emojis could be used as signalling devices to highlight the following:

The reframed provision could look like the following:

Does it work?

The reframed provision appears to partially satisfy the criteria for a good mental model:

👎 The downsides

While there is certainly a case for using emojis to assist with the simplicity, comprehensibility, and navigability of legislation, embracing emojis in legislation comes with some potential downsides. Goldman identifies five key issues with the use of emojis in law more generally:

• 🕵️ visual decoding (emojis are relatively small in size and several emojis look quite similar, which can make it difficult to identify which emoji has been used);
• 👯‍♀️ multiple meanings (there is no definitive reference source catalogue for emojis and Unicode’s criteria for accepting new emojis suggests that it prefers emojis that have multiple potential uses);
• 😵‍💫 depiction diversity (emojis appear differently on different platforms, which can increase confusion as to their intended meaning);
• 💂‍♀️ culture-specific meanings, which inform metonyms (using emojis as a form of figurative language to replace words or expressions, such as using the 🤔 emoji instead of the phrase ‘hmm’ or ‘let me think’ – see Javier Morras and Antonio Barcelona, ‘Emojis: Metonymy in Meaning and Use’); and
• 🖊️ unsettled grammatical rules when using multiple emojis in a thread.

The first three of these issues are particularly relevant for emojis in legislation.

Visual decoding may undermine the potential for emojis to be useful signalling devices in legislation. If it is difficult to identify which emoji has been used, then readers will not benefit from the visual prompt.

For example, the 📝 emoji (which in the example above indicates that the provision has been amended since the statute’s enactment) could be confused with another writing-based emoji, such as: 📃📄📜🗒️. At best, this may result in users of legislation simply ignoring the emoji. At worst, it could result in confusion and uncertainty.

Multiple meanings could create ambiguity and uncertainty.

For example, while in South West Terminal the 👍emoji was interpreted as a signature on a contract, in Lightstone RE LLC v Zinntex LLC, 2022 N.Y. Misc. LEXIS 5925 (N.Y. Supreme Ct. Aug. 25, 2022), the Supreme Court of New York considered that the same emoji did not constitute acceptance of a contract in circumstances where the surrounding text messages showed that the sender did not intend to be bound by the agreement. Even in South West Terminal there was argument about whether the 👍emoji should merely be interpreted as a confirmation of receipt of the text message.

Such ambiguity could be mitigated through an interpretive provision being inserted into the Acts Interpretation Act 1901 (Cth) to explain what the emojis indicate. Such a provision could be along the lines of:

However, it may be unrealistic to expect that users of legislation would instinctively turn to the Acts Interpretation Act to resolve any confusion they have as to the meaning of an emoji that appears in an Act. It is more likely that users would rely on their own understanding of the emoji, which could differ significantly from another user’s understanding, or would run a search on the internet to learn the meaning. This would lead to further issues because legislation would be giving the emoji a new, context-specific meaning that may differ from what users would understand to be the ‘ordinary meaning’ of the emoji.

Another option would be to use ‘hover boxes’ to show the intended meaning of the emoji. However, this may be limited by the current capabilities of the Federal Register of Legislation.

Depiction diversity would likely cause issues because users of legislation may not recognise the emoji if its depiction in legislation differs from the way that the emoji appears on a user’s platform.

For example, the ‘full moon face’ emoji referred to in South West Terminal is depicted quite differently on various platforms:

Apple	Microsoft	WhatsApp	Noto Emoji Font	Facebook	Twitter/X

If we are going to use emojis in legislation, we may need to accept that the depiction that is chosen is likely to be recognisable to people familiar with that platform but may be unrecognisable or confusing for people familiar with a different platform, or who do not use emojis at all. The ability of users to recognise the emoji, and to understand its meaning, would therefore depend on (a) whether that person uses emojis at all, and (b) which platform the user is most familiar with. This would seem to undermine the purpose of using emojis: to increase the accessibility and navigability of legislation. It is also at odds with the principle that legislation should be generally accessible and comprehensible by all users.

The combined effect of these three issues is to produce a level of ambiguity and legal uncertainty that seems to outweigh the benefits emojis could bring to legislation.

💭 Conclusion

Parts of the Commonwealth statute book are in need of an upgrade and an update. The ALRC is currently reviewing financial services legislation in an attempt to make it easier to navigate and understand. The question is, could emojis help achieve those aims? 🤔

In the case of financial services legislation, any improvement to navigability and comprehensibility would seem to be outweighed by the increased ambiguity and uncertainty that emojis would introduce😞 .

While emojis may not be the solution for reforming financial services legislation, there could be a case for using emojis as legislative signalling devices to help bring legislation into the twenty-first century 🪄 . I commend anyone brave enough to attempt that feat 👏 .