Emojis in spotlight for South African legal fight

Emojis took centre stage in the early parts of a judicial conduct trial investigation of sexual harassment allegations against Eastern Cape judge president Selby Mbenenge this past week, Sunday Times reports.

Lawyers for Mbenenge’s questioning focused on the meaning of several emojis that had frequently featured in messages between Mbenenge and his accuser — judges’ secretary Andiswa Mengo.

Linguist and post-doctorate fellow at the University of Cape Town, Dr Zakeera Docrat, testified at the investigation.

Docrat explained that eggplant and peach, alongside a text from Mbenenge about “going the intimate route”, likely referred to male and female reproductive organs.

These emojis are commonly used together as a euphemism for intercourse.

Docrat also said that, in the context of Mbenenge’s other messages, an unpeeled banana emoji he sent to Mengo referred to an uncircumcised male reproductive organ.

She testified that Mengo’s use of the ROFL emoji was a digital fingerprint, as she used the emoji often as an “automated” or “automatic” response.

Mengo also frequently reacted with the “see no evil” monkey emoji.

Used in conjunction with the ROFL emoji, it was Docrat’s interpretation that Mengo was trying to “laugh off” Mbenenge’s advances in a light-hearted manner.

While the investigation is still in its early stages, it has again highlighted how emojis in online conversations can carry particular meanings and potentially have consequences for their users.

Docrat previously told 702 that several people in other countries had been charged with crimes for using certain emojis on social media and chat apps.

Docrat referred to a case in France where a 22-year-old was sentenced to six months in prison for sending a message containing a gun emoji to their ex-partner.

A court ruled that the emoji was a “death threat in the form of an image.”

In another case in New Zealand, a person was found guilty of threatening their former partner by posting “You’re going to f***ing get it” with an aeroplane emoji in a Facebook message.

The court interpreted that this meant the accused intended to go after the accuser, who had moved to another part of the country, to harm them. The accused was sentenced to eight months in jail.

South Africa’s Cybercrimes Act determines that certain messages sent over digital platforms are punishable by a fine, five years imprisonment, or a combination of the two penalties.

Consequences in the workplace

Legal Leaders managing director Aslam Moolla has also warned South Africans to be wary of sending emojis in work-related conversations.

Moolla explained that the meanings of emojis could vary based on context, generation, and cultural group.

“We live in a digital era. You’ve got to be aware of how you say things at work,” Moola said.

“If you give a thumbs up or use certain fruit emojis, all those things, there are consequences to that,” said Moolla.

Moola warned that any social media messages could be admitted as documentary evidence in labour-related legal proceedings or disciplinary hearings.

He provided the example of a manager sending a message to a worker to be at a meeting at a specific time, and that worker responding with a “thumbs up”.

One interpretation of the emoji in that context is that the worker agrees to attend the meeting, while another is that they acknowledge the message.

Moolla also warned that a thumbs-up in response to a contract or agreement could constitute a binding agreement.

In one case involving contract law, a judge found that a handshake emoji with two champagne flutes clinked together signified the conclusion of a contract.

Moola also said that the WhatsApp blue-tick, which act as a read receipt, could be regarded as proof that a user has received and acknowledged a message.