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Vol. 8 - Issue 3
March 20, 2019


Encore: Randy Spencer’s Open Mic

So, Not So Cute Now: Woman Uses Emojis And Gets Sued






As far as I can tell, there are three categories of people when it comes to the use of emojis: (1) those who use them way too much and should have their iPhones confiscated by the FCC (e.g., sending condolences to someone, on the death of their loved one, should not be done via text, using pictures of a crying face and casket; (2) those who never use emojis and, in fact, look down their noses at people who do; and (3) those who understand the purpose of emojis and use them appropriately (e.g., my 9-year old daughter will text me three pictures of an ice-cream cone as her way of saying – let's go to Baskin-Robbins).    
But no matter what type of emoji user you are, the Rhode Island trial court's decision in Bertha Hopkins, as assignee of Linda Hopkins v. Roger Williams Ins. Co. teaches us that, if you are going to send a text with emojis, be sure that it doesn't end up in the wrong hands.    
Bertha Hopkins hosted a Thanksgiving dinner at her home in 2014.  To be in attendance was her daughter-in-law, Linda Hopkins, and several others.  Bertha was to make the turkey.  In the week leading up to the holiday, numerous group texts went back and forth between Bertha, Linda and other guests, over who would make which side-dishes.   
On the day after Thanksgiving, Linda responded to the last group text with a text containing nothing but the following three emojis: .  Someone on the text distribution replied, asking what the text meant.  Linda did not respond to the group.  However, Samantha Roberts, Bertha's first cousin did.  She replied to the group – "the turkey was dry last night."  Linda had meant to remove Bertha from the group text before sending it.  But she didn't.  Bertha received both texts and was not amused.  She responded to the group, disputing that her turkey was dry and, in fact, claiming that she was a fantastic cook and had never made a dry turkey in her life.  But Bertha didn't stop there.  She sued Linda and Samantha for defamation, alleging that both women damaged her reputation as a great cook.  See Bertha Hopkins v. Linda Hopkins and Samantha Robbins , No. 15-0236, Superior Court of Rhode Island (2/24/15).    
Linda sought coverage for the suit from her homeowner's insurer -- Roger Williams Ins. Co.  Samantha did not own a home and had no homeowner's insurance.
Linda's policy provided "personal injury" coverage for, among other things, "[o]ral or written publication, in any manner, of material that slanders or libels a person or organization." 
Roger Williams Ins. Co. disclaimed coverage to Linda.  The basis for its disclaimer was that, while Bertha clearly alleged that Linda libeled her, it had been done by way of emojis, which was not in the form of "oral or written publication of material."  
With no defense forthcoming from Roger Williams, Bertha and Linda settled the suit for $20,000.  Bertha dismissed Samantha from the action.  Linda assigned her rights, under her Roger Williams homeowner's policy, to Bertha.  Bertha executed a covenant not to execute the judgment against Linda. 
Bertha sued Roger Williams to collect the $20,000 judgment.  The court in Bertha Hopkins, as assignee of Linda Hopkins v. Roger Williams Ins. Co., No. 15-5696, Superior Court of Rhode Island (3/3/16) held that no coverage was owed.  As the court saw it, the only possible defamation committed by Linda was in the form of the text message that she sent containing the three emoji symbols.  While Samantha had sent a text, using words, stating that "the turkey was dry last night," Linda did not use written words to defame Bertha.  On that basis, the court concluded that the three emoji symbols were not "written material."
The court chose emojis to state its conclusion:


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