Emojis and International Law

Emojis: love them or hate them, you can’t seem to get away from them.  🙂  The smiley face, the thumbs-up, the smiling pile of poop, and the hundreds of other little symbols and pictograms that get used in text messages, tweets, and the like.  And tomorrow, June 21, we will have 71 new emojis to play with.  Why will there be new emojis tomorrow? And what does this have to do with international law? Read on…

First, a bit of background: while the smiley face is very much an iconic 1970’s symbol (“Have a Nice Day!’), the use of what we would call emoji in electronic communications started in the 1990’s in Japan, for use in cellphone texts.  Each little frowny face or thumbs-up, though, needs to be mapped using a common standard, or else it would only be able to be seen on certain platforms (say, an Android smartphone) but not on others (such as a Mac).

Consequently, there is actually an approved set of “official” emojis that can work across multiple software and hardware platforms and that new emojis are released once a year by a standard-setting organization called the Unicode Consortium, “a non-profit corporation devoted to developing, maintaining, and promoting software internationalization standards and data, particularly the Unicode Standard, which specifies the representation of text in all modern software products and standards.”  The Consortium’s membership includes Apple, Adobe, Google, Microsoft, Oracle, and Yahoo, among others. By providing cross-platform standards, the Consortium is essentially making the soft law of the interoperability of symbols across different programs and devices. 😎

Proposals for new emojis are made to the Unicode Consortium, which then reviews and decides which symbols  should become standard and how they should be encoded. There are currently about 1,300 emojis, with about 70 added each year.   (By way of perspective the total  “Unicode Standard is mammoth in size, covering over 110,000 characters. “) The list of new emojis being released on June 21 is here.  Can’t wait to use the team handball emoji!

But, besides this being an unexpected story of industry standard-making bodies and funny little symbols, one must keep in mind that the Unicode Consortium’s responsibilities go well beyond encoding the broken heart glyph. As NPR reported last year:

The Unicode Consortium’s job has always been to make basic symbols work across all computers and other devices, but the emoji has put the group at the center of pop culture.

“Our goal is to make sure that all of the text on computers for every language in the world is represented,”

However, as Mashable notes:

getting characters added to the Unicode Standard is a long, drawn-out process. In addition to the original Japanese emoji characters, the Unicode additions included other new characters — such as country maps and European symbols.

What this means is that there is a data file that maps every individual emoji symbol to a Unicode code point or sequence.

But this is just the standardization of the symbols. Supporting emoji, as well as the specific design of the emoji characters, is up to software makers.

Thus, the administrative scaffolding that makes emojis ubiquitous is based on a non-governmental standard-setting body using soft law to allocate Unicode points or sequences to symbols (be they emojis, letters, mathematical symbols, etc.) that are approved by the Consortium.   The approval of emojis is simply one example of a set of responsibilities with much broader implications than just whether “nauseated face” deserves its own encoding. (According to the Consortium, it does.)

Besides interest in the process of institutional decision-making in standard-setting bodies such as the Consortium, there is also a question  of whether the Consortium’s overall goal of ensuring that the script of every language in the world is represented digitally is in tension the current focus on encoding more and more emoji.  Some have expressed concern that this focus on emojis may divert time and resources away from the protection of endangered languages. Peoples who are trying to preserve endangered languages (such as, for example, Native American and First Nation languages) would be greatly helped if the alphabet of that language would be as easy to read across a variety of computer platforms and digital devices as a smiley-face. Consider this an issue of resource allocation.  Letterjuice, a Brighton and Barcelona-based type foundry, posted a thoughtful essay on Unicode and language rights, which stated:

By giving a code to a glyph [the Unicode Consortium] make a much deeper decision than what the people involved may realise. They have the power of giving voice to many people and to silent the voice of many others. In lots of cases that has even a political implication. Therefore, they have an enormous responsibility and they should do enough research to make the right decisions on how they assign those codes and also how they organise them in different code charts.

These decisions affect specially minority languages, since they have no official status, and thus they are very weak. Unicode Consortium at the moment is far from helping the preservation of languages, which are endangered, but rather helping them to disappear by ignoring their needs.

As described above, the process of adding any glyph is time-consuming. As with any organization, or network, the Unicode Conosrtium has limited time and resources.  Should it be less concerned with emojis and more focused on encoding endangered languages? The Unicode Consortium emphasizes that it is aware of the issue and is addressing it:

“Beyond our work standardising emoji, Unicode is tackling some big challenges that might surprise many people,” said Mark Davis, co-founder and president of the Unicode Consortium

“The vast majority of the world’s living languages, close to 98 percent, are ‘digitally disadvantaged’ – meaning they are not supported on the most popular devices, operating systems, browsers and mobile applications.”

He said just “a handful” of African languages are represented online, whilst many world languages are simply not used on the internet.

To help make sure rare languages like Berber, Balinese, Cherokee, Javanese, N’Ko, Pahawh Hmong and Kashmir survive, the Unicode Consortium has travelled the world to gather information on each tongue.

Researchers first aim to understand the structure and history of a language, before producing a standardised form which can be used by all computers.

This is a race against time and will likely be ongoing as certain linguistic communities dwindle in size.

Another way in which emojis interact with the concerns of international law–and in particular human rights law–is the depiction of minorities.  Keep in mind that emoji have become ubiquitous and, since they are pictographs, there are different ways in which people can be depicted.  Emojis are no longer just bright yellow smiley or frowny faces; skin tone, gender, and other characteristics can be depicted. And, while the specific design of emojis are left to software makers, the basic template of each emoji is set by the Unicode Consortium.  The Unicode Consortium FAQ explains that the Consortium:

recommends that such depictions [of people] be as neutral or generic as possible with respect to physical appearance, for example using non-realistic colors for skin tone. Similarly, characters whose name does not require a particular gender, such as U+1F477 CONSTRUCTION WORKER, should be depicted in a gender-neutral way.

However, many emoji users desire to use emoji for people and body parts that display a variety of more realistic skin tones. To support this, many such emoji may be followed by an emoji modifier character that can indicate one of 5 skin tones, based on the Fitzpatrick scale. See Diversity in UTR #51.

Of course, there are many other types of diversity in human appearance besides different skin tones, including different hair styles and color. It is beyond the scope of Unicode to provide an encoding-based mechanism for representing every aspect of human appearance diversity that emoji users might want to indicate. The best approach for communicating very specific human images—or any type of image in which preservation of specific appearance is very important—is the use of embedded graphics…

Not to put too fine a point on it, but the use of emoji has become so widespread, that linguists are studying as to whether emoji-text is becoming so dense as to develop some of the rudiments of language, such as shared meaning, syntax, and grammar. (See, also, 1 and 2.) Especially in light of this, the fact that what can be said via emoji is defined by an industry group has led to discussions of diversity and inclusion as important values.

A reverse of this has been the statements by some governments of actually or possibly banning in their countries the use of emojis that are seen to relate to LGBT issues, such as emojis of same-sex couples holding hands or pictograms of families with same-sex parents.

This is far from the buzz about adding a new emoji for “rolling on the floor laughing.” (Also approved in the new set.) Yet, these are just a few ways in which the process of allocating code for new emojis interacts with such concerns of international lawyers as the role and procedures of non-governmental standard-making bodies, as well as language rights and minority rights. While emojis themselves are often light-hearted, the process of allocating symbols for common usage on digital media and the threat of governments banning the use of certain symbols goes to the heart of some of our concerns as international lawyers.