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Jason Wadden quoted in "The (social media) evidence is clear", Canadian Lawyer

September-24-2018

Lawyer Jason Wadden
Area Litigation

Details

Excerpt from "The (social media) evidence is clear", by Elizabeth Raymer, Canadian Lawyer:

In texting, the use of emoticons, emojis and now “bitmojis” is advancing in litigation evidence, says Jason Wadden, a partner at Goodmans LLP in Toronto, who this year presented at the Ontario Bar Association annual conference and to the Law Society of Ontario on the use of social media in litigation and legal practice.

Wadden points to international litigation, which has relied on emoji evidence. Perhaps the most colourful case was an Israeli small-claims dispute between a landlord and prospective new tenants, in which the landlord successfully sued for damages based at least partially on emojis in the prospective tenants’ text messages, which the judge agreed indicated an intent to rent the landlord’s apartment. The judge found the couple had “acted in bad faith” by then backing out after the landlord had taken down the apartment listing. And in a Michigan case, the judge agreed with the defendant that the latter was being facetious, not defamatory, in an online comment he made using an emoji that was determined to indicate a joke or sarcasm.

Now, Wadden says, the use of “bitmojis,” or personal emojis, can be used to harass by altering someone’s photo in a bitmoji, for example. Or, where a high school girl has expressed disinterest in a boy but “he keeps sending more eggplant emojis [denoting male genitalia], could that be part of a pattern of harassment?”

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