In court cases, it may be appropriate to judge emojis because such cases may involve one or a small number of emojis, allowing the fact finder to conduct an in-depth review of the context, as well as interpretations offered by the sender and recipient. These factors may allow courts to apply an objective standard.
In contrast, broker-dealers engaged in “reasonably” reviewing thousands or millions of electronic communications by applying “risk-based” principles don’t have the luxury of parsing each emoji in the same manner as litigants or courts.
Therefore, before FINRA requires broker-dealers to apply unwritten and untested standards, FINRA staff may want to take a break ? and consult with firm management, compliance officers, and registered representatives about these issues. If the industry isn’t consulted, it’s easy to predict what will happen next ?.
Source: Emoji Context Matters When Judged by Courts and Regulators
