Emoji and emoticons are becoming increasingly prevalent in criminal law cases around the world, although some judicial officers currently have no experience of them or of interpreting them. This article offers an in-depth examination of the area of emoji and emoticons in criminal law. It provides an overview of emoticons and emoji, including their history, their global popularity of use in modern communication, and their particular interpretative difficulties. It canvasses and analyzes international criminal cases involving emoji and emoticons. It provides a valuable table that lists each such case in which emoji and emoticons are present. In reviewing the existing international case law, this article identifies the handful of cases in which judicial officers have attempted to interpret emoji and emoticons in the criminal law context. However, it also demonstrates the absence of clear guidance on methods of interpreting emoji and emoticons. Most importantly, this article aims to assist filling this void by proffering important recommendations regarding interpreting emoji and emoticons in the criminal law context.
Reading Between the Text(s) - Interpreting Emoji and Emoticons in the Australian Criminal Law Context
Dr. Marilyn Bromberg is the Director Higher Degrees (Coursework) at The University of Western Australia Law School and a pro bono lawyer at the Fremantle Community Legal Centre. Her research areas are technology and the law and Health Law. She teaches Social Media and the Law, and Professional Practice.
Larissa Welmans received a Juris Doctor from the University of Western Australia in 2018 and remains a sessional tutor there. She has also served as a judge’s associate at the Supreme Court of Western Australia, Court of Appeal.
Cassandra Lee recently graduated from the University of Western Australia with a Bachelor of Laws (First Class Honours) and Bachelor of Science. Cassandra has previously served as a judge’s associate at the Supreme Court of Western Australia, Court of Appeal.
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Marilyn Bromberg, Larissa Welmans, Cassandra Lee; Reading Between the Text(s) - Interpreting Emoji and Emoticons in the Australian Criminal Law Context. New Criminal Law Review 27 November 2020; 23 (4): 655–686. doi: https://doi.org/10.1525/nclr.2020.23.4.655
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