Emoji crimes on social media applications

Abstract

This study examines criminal behavior that takes place using emojis on social media applications. These are new types of criminal behavior that traditional legislation has not yet fully regulated. Therefore, this study aims to uncover the concept of emojis, the nature of them, the methods of incrimination used, and the mechanisms of proof in crimes involving these emojis. The study also aims to reveal the variable meanings of such emojis according to the cultures of different populations and groups. This is achieved by defining the concept of emojis, identifying the different types of criminal behavior associated with them, and outlining the methods used to prove such crimes.

Keywords:

• Applications
• crimes
• emoji
• social media

REVIEWING EDITOR:

• Heng Choon (Oliver) Chan, Department of Social Policy, Sociology, and Criminology, University of Birmingham, Birmingham, UK

SUBJECTS:

• Crime and Society
• Criminology – Law
• Public Law
• Criminal Justice – Criminology

1. Introduction

The significance of this study stems from its examination of criminal behavior arising from the use of emojis on social media applications. This is a new phenomenon resulting from the rapid digital advancement that people currently experience. These emojis have become a digital reality that coexists without a corresponding update in traditional criminal legislation. Therefore, this study sheds light on the legal obscurity surrounding the rapid digital transformation in practical life. The challenge for this study lies in the absence of laws that regulate crimes committed through emojis and in the absence of legislation that provides legal protection in an environment where the meanings and concepts of these emojis vary among different cultures and societies, as well as within the same social group. This has led to the absence of criminal legislation in computer-mediated communication crimes committed using these emojis. The resolution to this issue can be addressed by answering several questions, such as: What are emojis? What are their traits? What types of crimes can be committed through them? What are the methods of incrimination used? How valid are these emojis, given different understandings across cultures?

The study aims to uncover the concept of emojis, the nature of these emojis, and the various types of criminal behavior associated with them. It also aims to outline the mechanisms of proof used in prosecuting such crimes considering differences in understanding across cultures. Studying criminal behavior using emojis on social media applications requires an appropriate and accurate methodology. The descriptive methodology that this study uses is necessary to precisely describe, analyze, and predict this phenomenon. Therefore, the study has an introduction and two main sections. The first section defines the concept of emojis and details the various types of criminal offenses associated with them. The second section outlines the methods used to prove crimes committed using these emojis and highlights the role that differences in culture play when interpreting criminal behavior.

2. Emojis: Concept and boundaries

2.1. Emojis: Term and concept

The term ‘emoji’ originates from ‘E’, meaning picture, and ‘moji’, meaning character or symbol (Jaballah, 2017, p. 485). Emojis evolved from signals in Japanese Manga and street signs and from what was once called emoticons - symbols that allow people to easily describe their emotions in written communication. In the beginning, these symbols were primitive and comprised of pixelated graphic images similar to pictograms displayed on signs in public places today, such as the symbol for ‘no smoking’ (🚭) or the symbol for a train (🚆) indicating a train station or track (Shaybani, 2018). The idea for emojis arose in the late 1990s from the mind of the Japanese designer Shigetaka Kurita, (Aisha, 2019). The initial collection of 176 symbols was designed for the first basic system for mobile internet services (Saidi & Hegaz, 2017). Over time, the development of these symbols continued, and in 2007, Google software localization team, in cooperation with Unicode, responsible for new emoji requests, adopted emojis as an approved part of languages used on computer devices and mobile phone companies. Shortly thereafter, Apple adopted emojis in 2008, marking a milestone in their usage and proliferation by adding new symbols. The number of emojis continue to increase rapidly each year. In 2019, 230 new emojis were added, and in 2020, there were an additional 117 new emojis, bringing the total number of emojis to 3,136 (Wesaar, 2022). This proliferation has led to the widespread use of emojis in various forms and with varied meanings on social media applications, leading to many speculations and concerns.

2.2. The nature of emojis

The concept of emojis reveals those images, symbols, or drawings used by people in digital communications to explain feelings or emotions that are difficult to express, or to enhance the meaning of written words, or even to hide certain feelings, or for the sake of entertainment and fun (Wesaar, 2022). In other words, emojis convey sentiments that words alone may struggle to express, and they serve as a universal language, efficiently saving space and time, and most importantly, capturing the attention of the sender’s audience (Wagner et al., 2020). This concept reveals a unique nature for these symbols; they are not an independent language and lack verb tenses and prepositions. They lack the necessary grammatical structures for complex human communication and lack the basic language functions that allow for deep and complex communication between human groups, as well as other subtle and necessary details for any human language. This makes them ineffective on their own without a containing language that combines both emojis and words, promotes the true meaning of these symbols, and reduces their ambiguity, while allowing for their context and meaning to be derived from the written text and accompanying factors.

Research shows that emojis are not like words in expressing meaning, and their incapacity to give precise meaning without accompanying text is evidence of this (see Pohl et al., 2017). If they are used alone, outside of written text, they often lack clear and defined meanings (McMahon & Kirley, 2019). Studies also confirm that if an emoji is added that does not have a clear relationship with the sentence context, most people will find it difficult to understand its meaning (Garcia et al., 2022). This is apparent in social media applications such as WhatsApp, Twitter, and online chatting.

Another characteristic of emojis is the lack of seeing or hearing the speaker’s tone and feeling their emotions when communicating with them (Kelly, 2015). This makes them susceptible to doubt, confusion, and misinterpretation. Some crimes may arise as a result of difficulty in determining a person’s feelings or reactions. A single symbol can be the cause of multiple possible meanings or misunderstandings and may also contribute to the transmission of incorrect information to one of the communicative parties.

On the other hand, understanding and comprehending an emoji message depends on the type of technology platform used. Despite the existence of Unicode encoding, which is a standard that allows computers and mobile phones to use uniform graphics, some applications and platforms translate emojis in different ways. Each platform has its own set of emojis, which differ in meaning, design, and purpose. Each platform designs emojis that are visually similar but different in meaning, making the icon look different to different users. For example, the Unicode platform explains the 😁 emoji as a smiling face with smiling eyes, which Google represents as 😁, while Apple represents it as another emoji which means ‘ready for battle’ and represents it as 😬. One study found that each emoji has ten different designs that differ in appearance and how they appear depending on the platform or programming language used in the phone (Jaballah, 2017), making their understanding complicated.

Misinterpretation of emojis can also occur depending on the type of device. For example, the smiling face emoji (😃) on an Android or Google Nexus phone shows all of the person’s teeth and appears as a happy face, while on an LG phone, it appears as a laughing face. On a Samsung phone, the same emoji can display a clenched face, while on an iPhone, the sent smiley face may appear as a square on Gmail. This can cause communication and expression errors that can lead to legal issues.

In some cases, misunderstanding when communicating with emojis may be linked to how emotions are interpreted in their cultural context. When the sender chooses an emoji, they are thinking about it in a certain way, but the receiver may not think the same way as the sender because diverse cultures use emojis differently (Pohl et al., 2017). The significant differences between different cultures in understanding emojis can be a reason for criminalization, as it is challenging, if not impossible, to unify the understanding of these symbols and adopt them as languages. For example, the black heart (🖤) usually represents sadness and illness, and it can also represent a cold and emotionless person. It can also be used for playing jokes that are politically incorrect. In most Western cultures, the thumbs-up sign represents ‘OK’, but it is considered impolite in Brazil and some Latin American countries (👍🏻). Raising a hand with fingers straightened is not good in Greece, but it is positive in Europe and North America. The smiling face (😃) is an innocent and happy-looking symbol that has now become a sign of sarcasm among young people. It is like saying, ‘I’m fine (🙂)’ when you mean the opposite, unlike elderly people who still see it as a symbol of friendly and positive feelings. Miller’s study found that the face with an open mouth and closed eyes (😒😆) is one of the most confusing symbols, as approximately 44% of study participants see it as negative, while the other half (54%) see it as positive. The peach emoji (🍑) represents fruit among most Arabs but has a sexual connotation in the Western world. This can lead to misinformation and misunderstandings in digital communication, which can be dangerous (Miller, 2016).

2.3. Types of emoji crimes

Since at least 2015, emojis have increasingly appeared in court cases, serving as evidence to determine intent to commit a crime or indicating a defendant’s consciousness of guilt (Danesi, 2021). Approximately 30% of these cases appeared in 2018. Several types of crimes can be committed through the use of emojis on social media, such as:

2.3.1. Threats

Emojis can be used as a means of threatening someone by sending threatening symbols such as a knife, gun, bomb, or other symbols that may suggest violence. An American teenager once sent a message on a police officer’s post on his personal page that showed an emoji of a police officer with an emoji of a gun pointing at it 🔫👮. The prosecutor of New York County issued an arrest warrant for the teenager, charged with ‘terrorist threat’, arguing that emojis can be considered a threat to harm others (Al-Enezi, 2020). In addition, Journalist Bab Fletcher conducted and posted an investigative report on the black market for drug sales on Instagram. He received a response from a drug dealer that included a ‘gun’ symbol, which some interpreted as a death threat. In 2016, a French man sent a message to his ex-girlfriend that included a gun emoji and was charged with the crime of threatening under Article 222-17 of the French legal system.

Emojis can also be used to incite violence and hatred, such as racism against professional, religious, national, or ethnic groups (Matamoros-Fernández, 2018). These incidents have been one of the factors that forced technological platforms to replace violent emojis with safer and less harmful emojis, such as the water gun. In 2016, Apple changed the gun emoji from a realistic black gun to a green water gun that looks like a plastic toy. This change came after a series of shootings in the United States and campaigns like ‘Disarm the iPhone’, which called for the removal of the gun emoji as a step towards a safe America where the use and ownership of weapons are reduced. Apple’s decision inspired other companies like Google, Microsoft, and Facebook to change their gun emojis on their platforms. However, even after this replacement, emojis still pose a significant risk and a fertile environment for committing electronic crimes even without using text.

In the previous criminal case mentioned in the threats section, if it is assumed that the boy intended to use the police for real ammunition with the emojis 🔫👮, the court used the post as evidence of incitement against him. In Spartanburg County, USA, a group of offenders was arrested after posting a message that included multiple emojis, interpreted as a threat to beat someone and transfer them in an ambulance (McMahon & Kirley, 2019). Emojis can be used to discriminate based on religion, such as using an emoji of a face in the clouds that represents a god of a certain religious group or ideological community. Emojis can also represent racial discrimination by depicting faces with different skin colors, discrimination based on gender, or sexual orientation. For example, there are emojis for a gender-neutral person with a beard, a bearded woman, and a bearded man.

2.3.2. Insults and derogatory

Insults and derogatory language can sometimes be conveyed through emojis, such as sending someone a poop, dog, or donkey emoji. Additionally, some emojis have a connotation of scorn and contempt for the recipient in certain cultures. The thumbs-up sign, for example, usually means ‘OK’ in many cultures but is considered an insult in Brazil (Al-Enezi, 2020). Many emojis hold multiple meanings that vary depending on the culture and society, including:

• 😊: The smiley emoji means that I think you are dumb, but I do not want to fight with you. However, in another culture, it is a smiling and happy face.

• 🤭: It means You are funny and stupid, but in another culture, it represents a shy laugh.

• 🙄: The eye-roll emoji signifies boredom or disinterest in most cultures but can be seen as disrespectful in some cultures.

• 🤬: The face with symbols on the mouth expresses anger and frustration in most cultures.

• 🐒: In Chinese, the emoji means ‘good and kind’ is pronounced as ‘hǎo’, which sounds like the pronunciation of the word ‘monkey’ in another culture.

• 🤔: This emoji indicates that your words or behavior are strange and unreasonable, I think there is a problem with you. In another culture, I do not understand.

• 🍤: In Chinese, the emoji means ‘blind’ which is pronounced as ‘mángmáng’, which sounds like the pronunciation of ‘shrimp’ in another culture.

• 🍵: This emoji indicates pretending to be kind, pure, and good, because in modern Chinese, green tea is described as hypocritical, while in another culture, it is simply green tea.

The reference in defining the terms of insult, defamation, or humiliation is what gives reassurance to the judge in understanding the reality of the lawsuit or by altering the significance of the words to convey a meaning different from their actual meaning. The identification and naming of these terms fall under the legal adaptation of the law, which is subject to the scrutiny of the appeal court. It is the one that dominates the logical extraction, which is called for by the verdict’s prerequisites (Khalil, 2015).

2.3.4. Violation of public decency

Violation of public decency is committing an act that touches on the literary dignity of the community, demolishes the pillars of its ethical behavior, and undermines its moral elevation, and it falls under the discretionary power of the judge (Muhammad & Nofal, 2017). The use of emojis as symbols that point to sexual innuendos that are prohibited by the laws of some countries may occur, such as the heart-shaped symbol for couples or the kissing symbol also indicates sexual innuendo that is punishable by law. There is a difference in the design of symbolic icons and their interpretation and acceptance of different types of gender (Miller, 2016). A study conducted by Butterworth et al. (2019) indicated that emojis that spring from emotional feelings, such as the heart and face-kissing, are more suitable and acceptable when they are sent by females. The messages that contain emojis that are less sentimental or affectionate, such as smiling faces, are equally acceptable to both parties. However, if the emojis represent obscene sexual situations that encourage debauchery in the victim or induce them to commit prostitution or immorality, then this constitutes another crime, which is incitement to prostitution or immorality, especially if there is criminal intent on the part of the perpetrator (Al-Shazly, 1993).

2.3.5. Appealing and promotion

Through the use of emojis, some criminals may promote prohibited items such as drugs, terrorism, human trafficking, and pornography, by utilizing these symbols as a means to promote them through advertising. To understand the impact of emojis in marketing and advertising, it is essential to recognize that the emoji system includes various cultural symbols that reflect values and perspectives that differentiate one culture from another (Guntuku et al., 2019). This may make them do some advertising that is prohibited in a certain society or culture, including religious beliefs that may pose a threat to some cultures.

3. Proof in emoji crimes

3.1. Definition of proof

Proof is defined, according to the Criminal Trials Procedures Law, as the presentation of evidence to the competent authorities through inference, investigation, and judicial proceedings, proving the occurrence of the crime and attributing it to the accused (Al-Saeed, 2010). Proof in emojis crimes takes a special digital direction that relies on data described as a comprehensive digital term that combines data, information, programs, electronic records, and files saved in computer systems (Arab, 2009) and mobile phones that specialized authorities seek to rely on in proving criminal behavior. Proof in emojis crimes requires collecting data, which consists of facts, observations, or measurements, usually in the form of numbers, letters, or special shapes that describe or represent an idea, topic, goal, or any other factors that may be in the form of information (Arab, 2009). It is a form of expression or reproduction of facts, events, topics, ideas, feelings, or perceptions (Ayyad, 2007).

Programs, records, and electronic files saved in computer systems are all part of what is known as digital evidence, i.e. informational evidence stored in hexadecimal numbers according to the binary code system known as digital, which is one of the admissible pieces of evidence in litigation (Kenneally, 2005). Digital evidence is divided into two types: original digital evidence, which refers to written documents related to emojis when held and seized, and repeated digital evidence, which is an exact digital copy of all the written documents contained in the original section. The copy taken from the digital evidence in emojis crimes must be a precise replica and an exact copy of the information included in the original documents (Kenneally, 2005).

It should be noted that in criminal cases with digital evidence presented to the judiciary, these pieces of evidence were inconclusive up to 50%, which is due to the ease of destroying evidence and the weakness of the experience of the competent authorities in the investigation, collection, and analysis of evidence (Al-Haiti, 2004). Some conditions must be met to establish proof, such as the defendant’s awareness of each element of the crime and that they are committing a crime, as well as their intention to commit it by directing their will towards exploitation and distribution (Cybercrime, p. 84). Proof of evidence in emojis crimes is divided into:

3.1.1. Direct evidence

Direct evidence is defined as evidence that directly pertains to the criminal act in the emojis. This type of evidence is of great importance as it supports the direct association between the accused and their committed crime using emojis. Direct evidence is divided in terms of its source into three parts:

3.1.1.1. Material evidence

Material evidence is relied upon as the fundamental evidence in proving emojis crimes, according to some legal scholars. Material evidence is a legal situation that arises from the seizure of physical evidence and its comparison with the existence of a link or relationship with the suspect who committed the crime. This relationship may be positive, which proves the incident, or negative, which denies the accused of involvement in the crime. For example, an emoji indicating insult that was proven to be sent from the defendant’s phone to the victim’s phone before it was examined is considered material evidence. However, after the examination and analysis, it becomes meaningful, either positively or negatively, about its exit from the sender’s phone.

Physical evidence in traditional crimes refers to tangible physical objects and materials that the investigator collects from the crime scene, which have a significant effect in convincing the judge directly. For example, the discovery of blood drops from the crime scene is a significant effect that cannot be denied, gives a sense of direction, and does not accept debate or doubt in the direction of conviction or innocence without contradiction (Azmi, 1995). On the other hand, material evidence in emojis crimes takes a different direction because of its digital nature, which is in the form of symbols and flexible pulses on electronic media. These pulses and numbers rely on electronic storage that humans cannot read or comprehend, except through computers and mobile phones. This digital evidence has a moral nature that makes it difficult to prove, achieve, and attribute to its perpetrators due to technical difficulties related to its moral nature, which is related to the automatic processing of data (Hamouda, 2003). Mobile phones have two places to store evidence in the device. Some mobile phones have SIM user ID cards (Subscriber Identity Module). Digital Personal Assistants (PDA) also contain evidence. Perhaps this unique nature of evidence obtained from mobile phones and computers imposes a burden on the parties dealing with these crimes that is different from what we are accustomed to in traditional crimes.

Inspection is a means of proving material evidence in emojis crimes. It is the process of digging into the secret container to find what is useful in revealing the truth. This meaning is not limited to the physical existence of the secret container but also extends to the computer system, programs, and any devices or networks attached to the computer (Al-Tawalba, 2004). Inspection may also include communication networks and people who use these means. The physical components of these means consist of the input unit, main memory unit, arithmetic and logic unit, control unit, output unit, and secondary storage units, while the moral components are the system programs and application programs (Rustom, 1994).

Digital material evidence has a unique nature that distinguishes it from other evidence. Most importantly, it is evidence that indicates a scientific incident related to the virtual world environment, which is a highly complex scientific environment. This feature helps in that the digital evidence cannot be detected except through scientific methods (Bin Younis, 2004). Moreover, the complex scientific nature of this evidence requires that it be searched, seized, and copied by digital forensic experts. Scientific evidence is not like ordinary evidence, as virtual technology does not produce a knife or a firearm that can be used to discover the killer. For crimes involving electronic operations, which depend on encryption, secret codes, pulses, numbers, and electronic storage, it is difficult for physical traces to be left behind that could be discovered or used to lead to the perpetrators. It may be difficult to examine suspicious data and test it, especially in cases of manipulating computer programs. As a result, it may be impossible to access the perpetrators (Rustom, 1994).

The investigator cannot apply traditional evidence procedures to digital data in an identical manner (Awad, 1993). Emojis criminals may possess intelligence and technical expertise in the nature of their work which is artistic by nature. Thus, they can hide illegal actions they commit when using emojis, by manipulating invisible pulses or electronic vibrations that record data through them (Rustom, 1994). They might also enter misleading data into the computer or mobile phone system, modify their programs, or manipulate data stored inside them without leaving behind any evidence that indicates such an entry or modification (Rustom, 1994). The danger is increased by the possibility of hiding or destroying evidence of emojis crimes in a short time, especially since they are usually committed from remote distances, uncategorized by borders between countries or continents. When it comes to information or data stored in another country through a remote communication network, the traditional evidence laws are not sufficient to regulate such information regarding finding evidence and verifying it. Hence, conducting an inspection to obtain evidence within the territories of foreign countries is difficult (Al-Manaasa et al., 2001).

It is also difficult to issue a permit to bring the suspect for questioning, especially, if suspicion for his guilt points to a non-criminal act in his country, as this procedure conflicts with the sovereignty of this country. Mahmoud and Kazem, as cited in Al-Anazi and Faisal (2021), note that such crimes are usually rapid, as they are committed through technical means. The criminal may also commit his crime using emojis from an internet café or by impersonating the protocol address of another person’s device. Therefore, the investigation and evidence gathering agencies must obtain physical evidence based on the trail of internet movements, to secure the conviction of the suspect (Bin Younis, 2004). Since material evidence in emojis crimes is based on automatic data processing (Hamou et al., 2015), the estimation of evidence ranks and its validity in criminal evidence is based on its inferential strength, its truthfulness, approximation to reality, and its non-deceitfulness or misleading characteristic. Its strength of influence on the criminal judge’s emotional conviction is also crucial, especially after the advancement of information technology and scientific devices of extreme accuracy and sensitivity capable of monitoring the perpetrator’s movements, which supports the truth (Al-Darawsheh, 2015). Two conditions must be fulfilled for electronic material evidence to be valid in a legal proceeding: first, obtaining the legally admissible evidence in accordance with the constitution, criminal law, and the principles of criminal proceedings; second, the evidence must be certain and not subject to doubt (Al-Tawalba, 2004). Bin Younis believes that if the digital evidence suffers from impairment, it means losing its value as evidence of conviction, and descending, in the best case, to the rank of legal arguments (Bin Younis, 2004). However, material evidence alone is not decisive, despite its trustworthiness in criminal evidence. It becomes conclusive only when it is combined with inferential evidence to prove and confirm the emoji crime. When inferential evidence is available with material evidence, then it becomes a sufficient proof of the incident.

3.1.2. Evidentiary proof

It is also referred to as Probative Evidence and can take the form of a confession or testimony. evidentiary proof refers to the evidence presented in court to establish guilt or innocence. This proof can include confessions or testimonies where emojis are used to convey criminal intent or actions. For example, someone may confess to a crime via text message using emojis to indicate their involvement. Such evidence helps to substantiate claims and provide insight into the accused individual’s state of mind.

3.1.3. Confession

Confession is the acknowledgment by the accused of the facts attributed to them, either wholly or in part. In other words, it is a person’s testimony against themselves to their detriment. Since the accused’s acknowledgment is considered closer to the truth than their testimony against others, a confession is deemed stronger than testimony. However, like other forms of evidence, it is subject to judicial discretion in criminal matters. Recognizing confession as a form of probative evidence necessitates exercising caution in its validity. The motivations behind a confession may not always be driven by a genuine desire to tell the truth. A confession is under the jurisdiction of the discretionary court, similar to other forms of evidence. It does not automatically lead to a conviction; rather, it is the court’s responsibility to assess its validity from a factual perspective. It is only admissible if it aligns with the truth and fulfills the conditions for its validity. The court may accept parts of the confession while dismissing others, except when it is the sole evidence in a case. A confession serves to determine or intensify the accused’s liability. However, any confession obtained under physical or psychological coercion from the accused has no legal value (Al-Saeed, 2010).

The Jordanian Code of Criminal Procedure, Article 172(2), addresses the issue of confession, stating that if the defendant confesses to the charges, the presiding judge shall order the recording of their confession in words as close as possible to those used in the confession. Subsequently, the court shall convict and sentence the defendant to the punishment warranted by their crime unless there are sufficient reasons to decide otherwise. The same law also refers to confession in Article 216(2), in the chapter related to proceedings before the Court of First Instance in criminal cases. This paragraph stipulates that if the accused confesses, the presiding judge shall order the recording of their confession in words as close as possible to those used in the confession. The court may suffice with their confession, and in that case, shall sentence the accused to the punishment warranted by their crime unless it decides otherwise. The Court of Cassation in Jordan has emphasized the role of confession as decisive evidence in many of its decisions, including Decision No. 89/91, which stated that if the confession made by the accused before the court aligns with the facts contained in the indictment and the bill of indictment, both of which have been read to them during the session, and after the presiding judge has summarized the charge’s substance in accordance with the provisions of Article 215 of the Code of Criminal Procedure, there is nothing preventing the court from relying on this confession for the verdict and imposition of the penalty, in accordance with the provisions of Article 216 thereof.

The confession of committing one of the emojis crimes still requires substantial supporting evidence to establish valid facts in a criminal judgment. Such a situation makes the confession dependent on the intervention of other evidence, even though it carries a technical aspect. However, it should be noted that if the person making the confession is a specialist in the field of the Internet or someone who is well-versed in its use, their confession is perceived more strongly by investigative authorities and the court handling the case. Based on this, the court needs to recognize the severity of the person committing the crime. This means that the court continues to provide evidence of the strong technical abilities possessed by the perpetrator of the crime as a result of their experience in using the Internet, which has a technical nature, to achieve specific results that have already occurred and for which the law prescribes punishment. This necessity leads to the requirement for the court to benefit from the mere confession if it exists. (Tolba, 1992).

It is important to note that a confession obtained through torturing the accused is invalid, even if the confession is truthful and consistent with the circumstances of the case. This invalidation is a procedural measure aimed at protecting the legitimacy of evidence collection from its sources. The nature of the invalidation here is absolute, as it relates to public policy, and it becomes absolute when the accused is subjected to physical or psychological coercion (Court of Cassation, March 27, 1984, The Provisions, p. 35, 397, Court of Cassation, October 6, 1984, The Provisions, p. 35).

3.1.4. Testimony

In emojis crimes, testimony can be relied upon as an oral means of evidence presented by witnesses to the court. Testimony is one of the crucial pieces of evidence that can be presented to the court, serving as a decisive factor in dealing with these crimes when witnessed, heard, or both. It represents a person’s account of what they saw, heard, or generally perceived with their senses (Najm, 1998). Therefore, testimony is not an expression of opinion or evaluation by the witness but rather a literal and real account of the criminal reality (Al-Saeed, 2010). In crimes of emojis, testimony is an evaluative indicator, and it is the court’s prerogative to evaluate it according to its own judgment, ensuring that the witness conveys at times what they perceived due to specific personal factors, not as the eye sees it but as the mind desires it.

Since a judge does not issue a verdict based on facts they witnessed or statements they heard themselves but rather on facts or statements conveyed to them by eyewitnesses, whether by sight or hearing, everyone who perceives criminal circumstances with their own senses, according to Article 189/1/b of the Jordanian Penal Code, is a potential witness. The presence of witnesses in emojis crimes is only conceivable if another person happens to be present, who, legally speaking, does not constitute a council with the victim. On the other hand, the Jordanian Court of Cassation has determined that not every variation in a witness’s statements at some stages of the investigation or trial constitutes a contradiction that warrants dismissing their testimony and not considering it because differences in recounting events, their order, or repetition in their narration are reasonable matters.

3.1.5. Technical evidence

Technical evidence emerges from the opinion of a technical expert in emojis crimes, based on scientific criteria. Their opinion revolves around assessing a material or verbal aspect in the case and relies on expertise. Unlike testimony, technical evidence is not a mere recitation of a specific image in the witness’s mind based on one of their senses. Instead, it represents a technical assessment of a specific incident based on scientific criteria (Al-Saghir, 2001). Given the importance of expertise in unraveling the mysteries of crimes involving emojis, it requires judicial experts with knowledge of emojis and digital techniques in general to enable them to perform their tasks and prepare their technical reports. These reports may serve as legal evidence in court proceedings (Al-Saghir, 2001).

Despite the shortcomings of traditional criminal laws, they do not prevent the interpretation of the traditional penal texts that address different forms of offenses in emojis. This interpretation makes it possible to apply them to new crimes brought about by the revolution in remote communications (Hamouda, 2003). The role of technical expertise in criminal prosecution for crimes involving emojis is to assist law enforcement officers and investigators in dispelling the ambiguity that often shrouds digital criminal evidence. This typically requires experts to examine and preserve evidence. Article 39 of the Jordanian Criminal Procedure Law stipulates the role of experts during the investigative stage and reads: ‘If distinguishing the nature of the crime and its circumstances requires knowledge of some arts and crafts, the public prosecutor shall bring one or more experts in the art and craft’, and the appointed expert, referred to as an appointed expert, takes an oath before the investigating judge (public prosecution) and provides their opinion in writing. The expert submits the report to the investigator within the agreed-upon timeframe. If the expert believes that the report’s outcome is consistent with the complaint’s facts, the investigator acts accordingly and may use it to persuade the accused to confess. However, if the expert finds the report’s conclusion inconclusive regarding the complaint, they may seek additional information from other sources (Al-Marsafawi, 1998). Article 41 of the Criminal Procedure Law, Law No. 9 of 1961 (Hendi, 2022) specifies that experts should be sworn in before commencing their work, perform their tasks faithfully and honestly, and the public prosecutor should specify a date for the expert to submit the written report. If the expert fails to do so by the specified deadline, the public prosecutor may decide to recover all or part of the fees received by the expert and replace them with another expert (Diaby, 2016).

The work of a technical expert in emojis crimes relies on gathering a collection of digital evidence and obtaining it from website servers and the perpetrator’s device after gaining access to it. Then, they conduct a digital analysis of this evidence to understand how it was programmatically prepared and attribute it to the path on which it was created. They aim to determine the elements of its movement and how this knowledge was acquired. They also identify the computer protocol from which the messages and electronic pulses from these sites originated. Judicial expertise requires the presence of two components: the formal aspect and the substantive aspect. Bin Younis says that if the substantive aspect allows for a degree of scientific freedom and the expert uses his scientific and practical tools to provide an answer to the technical issue in question, the formal aspect, representing expertise at the academic level and the knowledge acquired by the expert, should be regulated by a recognized scientific institution, such as a university or institute, and this is considered a fundamental aspect in this field. Judicial tradition has emphasized the need to resort to the expertise available in these two components (Dayra & Plimer, 2022).

Expertise in the field of information technology differs from expertise in other sciences because the expert’s report in information technology always remains subject to doubt regarding the methodology used, especially when the defense relies on questioning the court’s confidence in the expert’s opinion by presenting new scientific facts that make the expert’s opinion vulnerable to criticism or destruction. For example, the debate between the possibility of tracing the path of the internet and the impossibility of doing so is a fundamental conflict in principle. Even if the prevailing view is the impossibility of tracing the internet’s path, it remains a subject of dispute, especially when identifying the IP addresses and their locations (Bin Younis, 2005).

Due to the complexity of the task of technical expertise related to the nature of digital evidence, the presiding judge may opt to issue a decision appointing more than one expert in the case before them. Jordanian legislation grants the criminal judge the authority to appoint multiple experts in the case, as well as the public prosecutor. This is evident in the text of Article 39, which stipulates that if the determination of the nature of the crime and its circumstances depends on knowledge of some arts and crafts, the public prosecutor must bring one or more experts in these arts and crafts (Alhendi, 2021).

Despite the need for legitimate scientific evidence, this doesn’t deprive the court of its right to either accept or reject the expert’s report, depending on its evaluation in the context of other evidence presented in the case. If the expert’s report is the sole evidence in the case or if it conflicts with other evidence, the report may lose its credibility in proving or disproving the case, and any doubt can be interpreted in favor of the accused.

3.2. Indirect evidence

The second type of evidence in the proof of emoji crimes is indirect evidence. These are various facts all related to the incident of the emoji crime. From these facts, a series of circumstances can be considered as probative evidence in that incident. They do not directly point to the criminal act but require logical reasoning and thorough examination. For example, seizing items related to the emojis crime from the accused. Indirect evidence in emojis crimes can be divided into two types (Alhendi, 2019):

3.2.1. Circumstantial evidence

Circumstantial evidence is established in emojis crimes by deducing the unknown from the known. This is done by deriving the unknown incident of the emoji crime that needs to be proven from another known and established incident. This deduction is based either on a legal assumption or on a logical connection between the two incidents (Al-Saghir, 2001). Circumstantial evidence is any apparent indication that compares something hidden, implying a relationship between the two matters. Circumstantial evidence can be categorized into two types based on the law. First, circumstantial evidence is any apparent indication that relates to something hidden, and there is a connection between the two. Circumstantial evidence is divided, in terms of the law, into legal circumstantial evidence derived from legal provisions, and it is explicitly mentioned, and there is no need to prove it. For example, circumstantial evidence that crimes of defamation, disparagement, and belittlement through emojis were committed against someone unless there is a claim of personal right against the complainant (Al-Saeed, 2010). The other type is judicial circumstantial evidence, which the judge deduces from the circumstances of the judicial case. This evidence must be substantial and logically incontestable, consistent with logic and the facts of the case. Otherwise, they are considered indications and signs that do not rise to the level of the intended evidence in the Law of Criminal Procedures (Distinguished Penalty of Amman, Number 2002/459).

Circumstantial evidence is considered one of the methods of proof according to Article 147 of the Jordanian Law of Criminal Procedures, which states that proof in criminal and misdemeanor cases can be established through all methods of proof, and the judge shall rule based on his personal conviction (Distinguished Penalty of Amman, Number 2003/1406). The Jordanian Court of Cassation has also ruled that circumstantial evidence is one of the methods of proof, as per Article 147 of the Law of Criminal Procedures, which stipulates that proof in criminal and misdemeanor cases can be established through all methods of proof, and the judge shall rule based on his personal conviction. The Court of Cassation has ruled that judicial circumstantial evidence is also considered a means of proof suitable for criminal judgments (Jordanian Judicial Cassation Decision No. 81/124).

When the conditions of circumstantial evidence are met, and the incident is proven, and those who attempt to disprove it fail, circumstantial evidence becomes compelling (Saidi & Hegaz, 2017). Articles 40 and 43 of Law Number 30 of 1952 on Evidence stipulate that circumstantial evidence as mandated by law refers to what has been established in one’s favor through any other method of proof, provided there is no contrary legal provision. It can be contradicted by counterevidence unless otherwise stated. Article 43 also state that judicial circumstantial evidence refers to evidence not specified by the law but inferred by the judge from the circumstances of the case, believing it has a specific meaning, and it is left to the judge’s discretion to derive such evidence. Article 162 of the same law states that the court may, even of its own accord during the proceedings, order the presentation of any evidence and summon any witness it deems necessary to establish the truth (Al Wahshat et al., 2023; Jaballah, 2017).

3.2.2. Evidence

Evidence is an inference of the unknown event to be proven from another established event (Saqf Al-Hayt, 2019). However, it differs from indications in the strength of the connection between the two events because the connection in evidence is not strong or necessary. Therefore, although it may be suitable as a basis for accusation, it cannot be the sole basis for a conviction. It cannot lead to judicial certainty but must be confirmed by other direct or indirect evidence (Al-Saghir, 2001). It is used in proving crimes involving emojis, but it falls short of being the intended evidence in the Jordanian Law of Criminal Procedures (Abdel Karim, 2019; Issa, 2023).

4. Conclusion

In conclusion, this study has found that emojis fall within the framework of linguistic systems, paralleling them in their criminal functions. They constitute an integral and inseparable part of contemporary communication language, which continues to evolve. These symbols are characterized by elements of ambiguity and concealment. The crimes committed through emojis encompass various forms, ranging from threats to promotion, incitement, violation of public morals, seduction, and advertising. Furthermore, the study has concluded that proving criminal acts within emojis revolves around direct evidence, which includes both material and linguistic evidence, as well as technical evidence. Indirect evidence includes the cornerstones of indications and evidence. In most criminal cases involving emojis, the judgment is left to the discretion of the judge.

Based on the discussion provided above, the study recommends the following:

1. Making continuous updates of electronic crime laws to keep pace with rapid technological advancements are crucial. The legal framework must adapt to the ever-evolving landscape of digital communication and emerging online threats.

2. The establishment of dedicated laws specifically governing emojis is necessary. These laws should provide a comprehensive framework for regulating and addressing cases involving emojis, ensuring that they are not overlooked within existing legal systems.

3. Standardizing emojis and their meanings because a unified understanding of the interpretations and implications of these symbols can aid in more effective investigations and legal proceedings.

4. Limiting the discretionary power of judges in cases involving emojis is vital. While judges should have some latitude, it is essential to establish clear guidelines and criteria to ensure consistency and fairness in the legal process for these types of crimes. This will help prevent potential abuses or inconsistencies in the application of the law.

Authors’ contributions

Dr. Noor Alhendi collected scientific material. Dr. Asem Baniamer analyzed and linked the ideas in the paper. Dr. Nader Alsalamat performed the linguistic proofreading of the paper. Dr. Muamar Salameh formulated the paper. Dr. Hamdah Alanazi typed the paper. All authors agree to be accountable for all aspects of the work.

Websites

https://alwatannews.net/Specialist/article/953333/%D8%A7%D9%84%D8%B1%D9%85 https://thmanyah.com/10305/

https://thmanyah.com/10305/

https://www.aljazeera.net/news/cultureandart/2021/8/12/%D9%84

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

The authors confirm that the data supporting the findings of this study are available within the article https://thmanyah.com/10305/ and its supplementary materials. The data that support the findings of this study are available from the corresponding author, upon reasonable request.

Additional information

Funding

No funding was received.