Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
The next time you want to send an emoji in a text message, stop, think and consider any possible consequences of the one you choose.
Dr Zakeera Docrat, a forensic and legal linguist and current post doctoral research fellow at the University of the Western Cape, is well-qualified to issue this caution. She has researched the interpretation of emojis as evidence in South African courts.
Docrat was speaking to Quote This Woman+ about testimony coming out of the Judicial Conduct Tribunal investigating allegations that the Eastern Cape high court judge president, Selby Mbenenge, sexually harassed Andiswa Mengo, a judge’s secretary.
Mengo has claimed that in his suggestive texts to her, Mbenenge sent her explicit emojis and pictures.
Docrat says emojis have become a big part of communication in the digital age. “Sometimes we’ll be writing a text and suddenly think that the recipient of this text is going to think I’m in a bad mood or that I’m being a bit harsh, even though there’s nothing in my text to indicate this. I’m immediately going to start contemplating, should I include an emoji? But it’s very subjective and the use of specific emojis goes down to who you are sending the text to. If it’s a professional colleague or a work text I’m never going to use an emoji. It’s not relevant.”
Docrat warns that emojis can constitute an act of harassment or sexual harassment, a threat, and can be a form of gender-based violence.
“If someone is sending me a barrage of unwarranted emojis with sequences that make me feel uncomfortable, I’m being harassed. You don’t need to include any written words. This is especially true in a professional relationship and a context where the receiver of the message has no physical relationship with the sender. ”
But there is a place for emojis in interpersonal communication. “Obviously it’s fine if it’s a family member or very close friend — and note, I use the words very close friend because you also need to distinguish your friends. For example, sending a red heart to a male or female colleague or a new friend might be inappropriate. You might be friendly with them but not to that extent.”
This is why the interpretation of emojis is a subjective matter, she explains, whether it be in court or any other setting. “You have to look at it in a specific context. The main thing is to take into account the nature of the relationship between the recipient and the sender.
“The second thing is the cultural and linguistic context. We take for granted that, because we may speak English very well, we expect the recipient to do so as well. But they may be from a different culture and it may be culturally taboo to use certain emojis. We need to be aware that we are often communicating across linguistic, cultural and religious lines.”
Docrat explains that there are four functions to using an emoji.
To substitute, for instance, using “I (red heart emoji) you”.
Then for reinforcement purposes, for instance, to add emphasis to the words you’ve used.
“The function of contradiction is playing out in the tribunal. An example of this is the respondent sending lewd, inappropriate text messages in the form of words, stickers and emojis for instance and the complainant sends in response to that, a message saying something like, ‘I don’t want to receive these messages. You’re making me feel very uncomfortable. Please stop.’ And then she follows this by a laughing emoji. This is a contradiction. Are you saying stop or don’t stop?
“We all have our own responses in terms of how we feel and express our emotions. We are not in a position to say how you should be feeling or how you should be responding.”
Quote This Woman+ executive director Kath Magrobi adds that there’s always a possibility that women in a similar position who are involved in a power relationship dynamic like this one, may feel that having sent a message saying ‘Please stop what you’re doing’, then feel they need to temper the message because they believe they don’t have the agency to be forceful enough. “So, they counter the message by adding a laughing emoji, or perhaps a hug emoji,” says Magrobi.
Docrat continues. “The fourth one is complementation or meta comments. These are the hardest. You’ll say thanks for the meeting this morning, followed by an emoji which is completely unrelated, like a plate of food. It doesn’t correlate at all to what you have said in your text.”
Docrat says it’s important that we realise that across different devices and platforms, emojis are different. “A crying face emoji can appear as a laughing crying face emoji on another device or platform. It may be represented differently on someone else’s device. Facebook, Instagram and X platforms are different. There’s been a lot of debate on whether we should unify them across platforms.”
She addresses the use of stickers in text messages. “More and more they’re replacing our emojis. We often send a sticker as a response to a message. We think it’s far better than sending an emoji as it expresses more emotion, it’s far bigger and has more going on than just an emoji.”
She adds that the field of augmented reality and bitmojis add another dimension to communication across devices and platforms.
“A lot of the discussion on gender based violence globally is centring around digital communication, and of course emojis form part of that. Perpetrators are becoming very skillful. They think if they use emojis to harass a complainant without any text, it will not constitute harassment. ”
Docrat is concerned that those who try to get help from the police when they feel threatened could face this scenario: “You walk into a police station and tell the police officer you got a text composed of emojis. They’ll say where’s the threat? This is not abuse, it’s just emojis. There’s no written text or verbal communication. Training is not happening in the police or the justice system to keep up with the developments.”
She highlights a very sensitive emoji that many people use on a daily basis.
“I see coming out of the tribunal, reference is being made to the monkey emoji. We know that in South Africa that’s very sensitive. I think it’s an emoji that regardless of our race we need to be sensitive about the connotations attached to it. If you send it to a colleague, they may get really offended.”
Docrat adds, “We know what the speak no evil, see no evil, hear no evil monkey emojis indicate, but there are other emojis that are available to use to convey a similar message. The closed eye emoji can also mean shyness, shock or ‘I’m embarrassed’. There is another emoji, a more playful one that also indicates ‘I’m embarrassed’. There’s also a closed mouth laughing emoji, or the cat emojis that are available for use. You must have a really good relationship with someone to send them that monkey emoji. Personally, I just wouldn’t do it.”
She warns that most of us are often too quick to send off emojis. “We’re using emojis to replace text. It might be shorthand, but the message we think we’re trying to convey may not be the message the recipient interprets.”
There’s also different meanings attached to some emojis, like the white heart, for instance. “Some people may think it’s appropriate to send it to someone when there’s been a death. Some think it expresses sympathy, but for me, I think it means pure love. But, in a sequence, when used with the dove emoji and praying hands, it’s clear that it does express sympathy.”
Docrat explains that when experts like her interpret emojis, they use sequencing and patterning. “This has relevance for some of the things that have come out of the tribunal, like the initiation of the topic of oral sex. The aubergine depicts male genitals. There are a few emojis that depict female genitals — the peach, the cherries, the strawberry and the donut. But when you get the aubergine emoji, along with the mouth emoji and tongue emoji or kiss emoji, that’s a sequence. You do not have to use written words in this instance for the recipient to understand what is being said or suggested. Someone can say, ‘I’m just playing around,’ but it’s offensive in the sense that the recipient knows exactly what the sender intended to say.”
She adds that to respond to that with a laughing face emoji might not be an appropriate response. “That’s because it might be saying that you think that’s playful, or that you’re entertaining it somehow.
“There’s also a peeled banana which, according to the research I’ve conducted, can signify a circumcised penis. A number of fruits can be used to signify genitals.”
Docrat explains that when researchers talk about sequencing, they’re looking specifically at these patterns and how they’ve been used to get a sense of their repetition.
“I’ve had cases where I’m identifying the sender of anonymous texts that someone who is being harassed has received. The immediate priority is to identify the linguistic fingerprint of the sender. From a forensic linguistics perspective we call that your idiolect. Each of us has a linguistic fingerprint, whether it’s the number of full stops you’re using or your placement of commas, and perhaps whether they’re in irrelevant places. That’s the syntactic part of it. Some people use shorthand in their texts, for example, using ‘pls’ instead of ‘please’. That’s called a linguistic marker and is something we can pick up. We’ll see a trend in the formalities the sender uses too. Context is always very important.
“But, it’s becoming increasingly difficult to identify the idiolect when emojis are being substituted for text. That’s why the sequencing is so important. There’s a specific way to assess a person’s idiolect on a case by case basis. We need to have a number of texts to look at and enough data to identify the linguistic fingerprint of a person.
“We’re running a very dangerous path at the moment. Technology is great and emojis are a lovely way to communicate. But, we need to use them for the right purpose and not to abuse or harass anyone or make them feel uncomfortable. If anyone is sending an emoji, they need to think twice if it’s appropriate.”
Docrat says South Africa is not prepared for dealing with emojis through a forensic linguistics investigative way. She says the tribunal is the first time where the issue of emojis is playing out in a legal matter.
“The outcome of how the emojis are dealt with here will determine how emojis are interpreted in future. I worry that the tribunal is not using a forensic linguist. The field of forensic linguistics is new in South Africa. I’ve done the research specifically related to emojis and how we interpret them across languages, cultures and how the court should interpret them when the need arises. The National Prosecuting Authority and the department of justice are completely excluding a forensic linguistic voice. There’s an understanding that legal practitioners or judicial officers can understand and interpret certain provisions in linguistic evidence. I think that’s unfair. You’d never see a judge or a legal practitioner interpreting or providing expert evidence related to ballistics. So why are we doing it for our languages when there are forensic linguists working in this field who exist in our country?
“I’ve openly reached out to the legal system and profession to offer assistance since 2017. The research and resources are there.
“If there was a concerted effort to reach out to me to assist and make use of my expertise and research it would ensure the fairness of the tribunal for both parties. It also gets rid of a lot of contentious discussion and probably cross examination and questions from both sides.”
Section 14 of the Electronic Communications and Transactions Act is the provision under which emojis would be assessed as evidence in a court case.
Quote This Woman+ is an intersectional feminist organisation that aims to transform gender representation in the media landscape by promoting women+ voices and narratives that reflect African demographics and perspectives. They curate a database of experts and journalists to help journalists find the women+ voice they need to add value to their stories. Docrat is one of these experts. See https://quotethiswoman.org.za/