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Emojis in Public Agency Communication: Miscommunications and Records Ramifications πŸ˜±

person on laptop using emojis

What does a "πŸ‘" emoji indicate? That's what a Saskatchewan court wanted to figure out in a 2022 case that cost a Canadian farmer more than $60,000.

In 2021, the farmer, Chris Achter, sent a thumbs-up emoji as a response to a photograph of a contract from a flax buyer he had worked with for years. From his perspective, he was using the emoji to indicate he had received the contract. 

The buyer, South West Terminal, took the thumbs-up to mean Achter's acceptance of the contract. When months passed, and they didn’t receive a product, they took Achter to court — and won. 

After reviewing the meaning of the thumbs-up emoji in cases around the world, Judge T.J. Keene said, "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji."

In 2023, more than 200 legal cases included emojis and emoticons as evidence, in contrast to just 25 in 2016. 

In our digital world, we rely on the written word in email, chat, and other correspondence, removing contextual clues we would otherwise convey through vocal inflections and body language. Emojis, then, add a layer of meaning to this decontextualized speech by serving as "socio-emotional suppliers."

For example, you may include the "rolling on the floor laughing" emoji (🀣) to indicate your previous sentence in an email was a joke. 

But emojis in professional context can be misinterpreted because they don't have a standardized meaning. The same emoji may be perceived differently by different readers, based on their generation, Internet history, and other factors.

Complicating things for local government employees and officials, the use of emojis — especially as “reactions” to other communications — have significant public records and open public meeting ramifications.

This blog will talk about some of the pitfalls of using emojis in your public agency communications so you can decide if you want to make them part of your office culture.

Wait…Was that Rude? πŸ˜’

Since 2020, professional communication has become more casual. During the COVID-19 pandemic, Statista found 54% of companies either started using or increased their use of live chat channels, like Slack or Microsoft Teams, where emoji use is common and encouraged. Outlook started giving users the option of responding to emails with emojis in 2021, with Gmail adopting emoji replies in 2023. 

Most professionals, regardless of generation, use emojis in workplace communications. A 2022 Adobe survey found that more than half of Boomers used emojis in professional settings, along with 69% of Gen X, 78% of millennials, and 78% of Gen Z.

With the ubiquity of emojis, why do they remain so ambiguous? 

For one, the Unicode Consortium introduces many new emojis each year but doesn't indicate what these emojis mean. In turn, sarcasm or insincerity can be particularly difficult to interpret or stay abreast of, as emoji connotations change. One of the most misunderstood emojis in the Adobe survey was the "upside-down face" (πŸ™ƒ), often, but not always, used to convey an "oh well" or a shrug. 

As workplaces become more multigenerational, too, the contextual implications of emojis become even more muddled. Gen Z, born between 1997 and 2012, regards the use of the once-innocent smiley face (πŸ™‚), according to The Washington Post, "as passive aggressive or cold." One "Zoomer" even says she is confused when her older colleagues use the thumbs-up emoji.

"It can be disheartening and sometimes annoying,” she said. “Are they following up? When should I?" the 25-year-old told The Atlantic

Emoji users also tend to overestimate that readers will understand the meaning of the emojis. A 2017 study by researchers from the University of Minnesota and Northwestern University found that context surrounding the emoji didn't make its meaning any less ambiguous. In the case of the "relieved face" (😌), the context of the written message made the emoji even more inscrutable. 

In exploring this concept, Roger Kreuz, Ph.D., wrote in Psychology Today

Our deep-seated belief that our thoughts and intentions are relatively transparent to others is simply not supported by the large body of research on this topic. In some situations, emojis may help us to communicate more clearly—but they are rarely as helpful as we think they are or would like them to be.

Wait…Are Emojis Records? πŸ‘€

Without question, emojis that are embedded in the body of a public record are a part of that record. But can an emoji be a separate record entirely?

Possibly, yes. The definition of “public record” includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. See RCW 42.56.010(3).

Further, “writing” includes “every other means of recording any form of communication … including pictures, sounds, or symbols, or combination thereof” (RCW 42.56.010(4)).

So, when someone uses an emoji to communicate in the course of their public business, as either a unique communication or in “reaction” to a communication, that response is either a unique public record or is incorporated into the digital version of the original communication.

What does this mean for public records officers and custodians?

First, it is important to get a handle on where folks may be using such emojis. There are the usual places and platforms — like text messages, emails, and social media — but there are other places you might not realize.

For public agencies using the Microsoft Office suite of products, in particular, there is an increasing availability of “reactions.” Instead of replying to an email or a Teams chat with a new email or text message, you can “react” by simply marking one of a preselection of emojis that will appear with the original message. Both the sender’s and the recipient’s version of the email will now reflect the reaction. It was in drafting this blog that one of the authors realized they now have the option to mark a comment on the draft with a “thumbs up” (πŸ‘)!

Next, working with IT professionals, it is important to be sure these communications are being retained for the relevant retention periods. Many software servers and platforms retain data for periods that are much shorter than the ones established in the Local Government Common Records Retention Schedule (CORE) and other schedules. You will need to explore other software solutions that capture this information.

Finally, when responding to records requests, be sure you are considering whether emojis and/or reactions are being gathered in your search for responsive records. When the emoji is part of a reaction, it will likely be embedded in the data of the original electronic record. However, if the emoji is in the body of a communication, like an email or text message, it may not be captured in traditional keyword searches. It may be necessary to view communications in context or threaded together to see if any emoji communications are included in the chain.

Keep in mind that a reasonable search is limited to identifiable records. If you must literally view every single record in a particular category instead of running a keyword search to see if it is responsive to a narrower request, it is arguably not a request for an identifiable record. However, as technology and search capabilities evolve, what may not be feasible today may be easily done in the future. You will need to consult with your IT professionals to determine what your system is capable of.

Wait…Did We Just Have a Meeting? 🀷‍️

We at MRSC have written extensively on serial meetings as a violation of the Open Public Meetings Act (OPMA).

A serial meeting occurs when a majority of members of a governing body have a series of smaller gatherings or communications that results in a majority of the body intentionally and collectively taking action even if a majority is never part of any one communication — and “taking action” includes “discussions.” See RCW 42.30.020(3).

We have previously advised against use of the dreaded “reply all” email response when information is sent out to a governing body, but many folks might not realize that if they use the Outlook reaction feature everyone else in the conversation will see the reaction, not just the original sender — and some may wonder if that “thumbs up” (πŸ‘) sent in response was merely an acknowledgment of receipt or a vote in favor of the subject matter.

The same concern arises in the context of social media. On a three-member board, if one member posts on their personal Facebook page how they intend to vote on an upcoming issue and one other member reacts with a “heart” (❀), does this mean a majority has “discussed” the topic?

We do not yet know how a court will interpret such communications, and given the high risks involved with OPMA violations, it might be best for members of a governing body to refrain from using reactions when engaging with other members to avoid any risk of creating a serial meeting.

Conclusion πŸ˜²

Emojis are essentially visual slang that have entered the workplace through an increasing “social media-fication” of office communication software. They lack precision and agreed-on definitions and connotations. They can also lead to misunderstandings, encourage immediate responses when thoughtfulness might be needed, and pose unique challenges for open government.

And yet, at times emojis can provide the emotional context that is often missing in a dry text and they offer quick responses without cluttering up communication channels. So, we would encourage using emojis in a thoughtful and cautious manner, but remember that these are public records and your “eye roll” (πŸ™„) may end up being the pivotal piece of evidence in a lawsuit.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

Photo of Sarah Doar

About Sarah Doar

Sarah Doar joined MRSC in September 2018.

Most recently, she served as a Civil Deputy Prosecuting Attorney for Island County. At Island County, Sarah advised on many aspects of government business, including compliance with public record and opening meeting laws. She also defended the County in Growth Management Act and Land Use litigation. Prior to moving to Washington, Sarah practiced land use, environmental, and appellate law in Florida for over eight years.

Sarah holds a B.A. in Biology from Case Western Reserve University and a J.D. with a certificate in environmental and land use law from Florida State University College of Law.

Photo of Alicia Bones

About Alicia Bones

Alicia Bones started at MRSC as a research analyst and writer in fall of 2023. Before joining the communications team, she worked as a composition and research methods instructor at several Seattle-area community colleges, as well as a freelance research writer for business and education clients. She holds graduate degrees in English, creative writing, and higher education administration.