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Emoji law: Barristers brace for UK cases after American girl charged for using gun symbol on Instagram

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There’s a new way to criminally harass people

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A young schoolgirl from Virginia has been charged with making threats using emojis, leading speculation to simmer about whether a UK case like this is right around the corner.

According to the US press, police say the 12 year-old — who cannot be named for legal reasons — was charged with computer harassment and threatening the school after she made a controversial Instagram post last December. The post included:

Killing [gun emoji] meet me in the library Tuesday [gun emoji] [knife emoji] [bomb emoji]

If proceedings do continue, authorities will have to grapple with a tricky question: what do emojis actually mean? While images can be used to signal the spirit of a message, they do not have clear-cut definitions, and could provide sticking points for the courts.

Legal Cheek had a chat with two eminent criminal barristers — Felicity Gerry QC and Max Hardy — to find out a little more about whether emojis could amount to criminal threats under domestic law, and the resounding answer is yes.

In fact, according to 9 Bedford Row barrister Hardy, we could well see a case like this coming before the courts in the near future. He told us:

Where America leads England follows and while I am not aware of any decided case involving prosecution for the sending of an emoji it is, I am sure, only a matter of time.

In fact, there’s already some indication that judges are having to confront and deal with emojis and their legal implications in the courtroom. Hardy drew attention to the recent case of RC, a family law case where the judge had to consider whether a father had superimposed a devil emoji onto the mother’s face on an Instagram post in order to cause upset.

Ultimately, there is “a raft of legislation relating to the sending of threats or offensive communications” — including the Offences Against the Person Act 1861 and the Protection from Harassment Act 1997, to name but a few — and emojis may well amount to evidence of a threat for this purpose.

This does, however, depend on the image, use and surrounding context in which the emoji is sent, as pointed out by Gerry. And the 36 Bedford Row barrister is pretty uneasy about this being the case. She explained:

[I]t is vital not to confuse childish behaviour with criminal activity. I am very concerned about the increasing criminalisation of children and this is one of the areas where we need to be very careful not to over react to what children/young people do on social media.

She continued:

Expressing thoughts and feelings using images is usually normal behaviour not criminal activity even if it looks angry… as I often am about the over criminalisation of youth.