back to article To the Moon? Emojis can be financial advice, says judge

A New York federal judge has ruled that emojis used in certain situations can only "objectively mean one thing" – financial advice indicating a return on investment. Southern District of New York judge Victor Marrero was talking about the use of rocket ships, positive stock charts and money bag emojis by people promoting NFT …

  1. Eclectic Man Silver badge
    Unhappy

    If it looks like a duck, walks like a duck and quacks like a duck, it's probably an NFT (sorry, duck). Emojis which indicate profit, money etc are equivalent to words, IMHO.

    As a child I collected, 'collectable' cards, which came with chewing or bubble gum. Each pack cost a few pennies. Previously there were cigarette cards of famous cricketers (in the UK), or baseball players (in the USA). but the selling company never expected to make a profit from them, it was more of a marketing enticement (so that children would pester their parents to buy said consumable so that they they could complete a 'set').

    I must say that I have no NFTs, no cryptocurrency investments, and am deeply suspicious fo them (I have a Ph.D. in pure mathematics, published a paper on cryptography and worked for over 20 years in information security). If you can't scratch glass with it, it ain't hard currency.*

    *Note this is not financial advice, the author owned some shares valued at 499p/share a few years ago and hesitated about selling them. They are now worth 139p/share. The only financial advice I am at all qualified to give is never take financial advice from me.

    1. Yet Another Anonymous coward Silver badge

      Isn't the only reason people buy baseball cards as collectables is that they think they will go up?

      So doesn't this make the whole art market, from collectable plates in the sunday comics to Van Gogh subject to the SEC ?

      1. A. Coatsworth Silver badge

        There is a big difference depending on who says the cards will go up in price: if it is some rando on a webforum (in which case it will be my own fault whether I follow their advice or not); or the actual bubblegum/cigarrettes distribuitor of the cards

        I think this case falls on the second category.

        1. Eclectic Man Silver badge

          Some people buy works of art because they like looking at them (or, in the case of music, listening to them). I have some original artwork (an oil / acrylic painting) hanging on my wall, which cost me about £700. I really enjoy it. I did not buy it as an investment, but to look at. Some people collect postage stamps, coins, coasters, plates from Poole Pottery* or other things for the pure enjoyment. I could equally well be accused of collecting cameras (if you'd seen my photographs, you would not accuse me of being a photographer).

          The price or value of a 'work of art' is mostly what one person will pay for it and what another person will accept for it. The da Vinci exhibition in the National Gallery in London a few years ago was amazing. The best I have ever attended (better than the more recent Vermeer exhibition in London, but I've not (yet) attended the current one in Amsterdam), I can understand why someone would spend millions of dollars / pounds / euros on them (if they could spare the cash).

          *https://www.poolepottery.co.uk

          1. Yet Another Anonymous coward Silver badge

            But anything sold as "collectable" or "limited edition" is obviously being offered as an investment.

            Not sure if claiming the plates featuring cute woodland creatures and advertised in the Mail on Sunday definitely are "art" is a bigger stretch than claiming they are are "collectable" !

            1. Ken Moorhouse Silver badge

              Re: plates featuring cute woodland creatures

              I don't read the Mail on Sunday, so I'm guessing what you mean here, but think I have an inkling. With anything Limited Edition, collectors need to look at the Edition Size, and also whether the Masters are certified as destroyed after the Edition has been created. If the Edition Size is large then it is the equivalent of being mass-produced. If Masters are not destroyed then the Masters could be used again to produce another "limited" edition, diluting value. I have seen this happen, and with brands that should worry about reputational damage.

              In the field of philately, for example, there are examples of original dies not being destroyed by postal authorities being acquired and used to flood the market with worthless copies https://en.wikipedia.org/wiki/Nicholas_F._Seebeck being a classic example.

          2. tiggity Silver badge

            Indeed, we have some (purchased) artwork on the walls purely because we like it, no expectation of it ever appreciating in value, especially as it is all by "unknown" artists (in a couple of cases by people who did it temporarily to earn an extra income and have long since stopped making artworks now they are more financially secure, so zero chance of them ever finding fame in the future).

            We also have various books that have become "accidental investments", most extreme example is first edition hardcover "Adventures of Tom Bombadil" is only 60ish pages long but sells for hundreds (first edition only) - originally purchased second hand decades ago by my partner for pennies when it was essentially a book of no value (the Tolkien popularity boom had not occurred at purchase time back in the last century) - it was purchased because my partner loved the artwork in it & enjoys reading Tolkien, no "investment" decision involved.

      2. Sorry that handle is already taken. Silver badge

        Isn't the only reason people buy baseball cards as collectables is that they think they will go up?
        When we were children, profit was the last thing on our minds when my brother and I collected sports cards.

        However now decades later, yeah it would be the only reason...

      3. Insert sadsack pun here

        "Isn't the only reason people buy baseball cards as collectables is that they think they will go up?"

        1) No. Some people just like to have them because they're fans. The name "collectable" as opposed to "sellable" is a bit of a clue.

        2) in any case, the test is not whether the value of the thing will go up, but whether the buyer reasonably believed the value would go up as part of a common enterprise with the seller. Sotheby's will never promise that your Van Gogh will go up in value, and if it did, it's not because Sotheby's was going to be doing anything about it.

  2. Anonymous Coward
    Anonymous Coward

    Using emojis now comes with legal warnings

    > the 'rocket ship' emoji, 'stock chart' emoji, and 'money bags' emoji objectively mean one thing: a financial return on investment,

    > "users of these emojis are hereby warned of the legal consequence of their use."

    So does this mean I can no longer use the rocket ship emoji to indicate I'm going to take my lady friend to the stars tonight? Or if I do, it now means I'm expecting a *financial* return on my investment? That's not going to go down well!

    How far will this spread?

    1. Ken Moorhouse Silver badge

      Re: the rocket ship emoji objectively mean one thing: a financial return on investment

      Ah, but what about a Virgin rocket?

      Surely a canny defence lawyer could argue that "your investment could crash as easily as it rises"?

    2. Yet Another Anonymous coward Silver badge

      Re: Using emojis now comes with legal warnings

      > I can no longer use the rocket ship emoji to indicate I'm going to take my lady friend to the stars tonight?

      Yes, what you can't do is publish a list of stocks with a rocket emoji or a poo emoji next to them and then claim you never made any representation as to buy or sell - and so that you happened to buy or short the same stocks beforehand is totally irrelevant

    3. Paul Crawford Silver badge

      Re: Using emojis now comes with legal warnings

      That's not going to go down well!

      Well maybe if you go down well it will make up for any disappointment...

    4. Intractable Potsherd

      Re: Using emojis now comes with legal warnings

      Context is everything.

    5. Michael Strorm Silver badge

      It isn't the girl I saw you with at Brighton

      > So does this mean I can no longer use the rocket ship emoji to indicate I'm going to take my lady friend to the stars tonight?

      Perfectly fine if that's the context rather than that of stocks and the obviously implied meaning when mentioned alongside the latter.

      Though, of course, your lady friend still has the basis for legal action if you fail to take her to the stars, metaphorically or otherwise.

    6. Warhead1954

      Re: Using emojis now comes with legal warnings

      I've seen the rocket ship emoji, didn't know it was to indicate sexy time to come later. Is there an emoji for "going down well?"

  3. Ken Moorhouse Silver badge

    ...a common enterprise...

    A lesser version of Starship Enterprise, but nevertheless a rocket ship.

  4. Howard Sway Silver badge

    emojis used in certain situations can only "objectively mean one thing" – financial advice

    That would only be true if they'd used the turd emoji, as that would be proper advice on investing in these schemes. As they used emoji's indicating rocketing value, the objective meaning was the usual nonsense hype about how these worthless scraps of data are going to make you super rich - which is not really "advice".

    1. Yet Another Anonymous coward Silver badge

      Re: emojis used in certain situations can only "objectively mean one thing" – financial advice

      So by indicating that they believed these stocks were going to the moon (with rocket emojis) they are obviously morons, so any reasonable investor would assume the stocks would tank and short them !

      So by being demonstrably idiots, the WSB crowd are offering sure-fire investment advice - and so should be regulated.

      But if they were carefully regulated financial advisers then any investor would assume they knew no more than any other adviser (ie their predictions were worthless) and so not act on them !

    2. Insert sadsack pun here

      Re: emojis used in certain situations can only "objectively mean one thing" – financial advice

      El Reg and you missed the point here:

      "Although the literal word 'profit' is not included in any of the Tweets, the 'rocket ship' emoji, 'stock chart' emoji, and 'money bags' emoji objectively mean one thing: a financial return on investment," Marrero wrote.

      The judge didn't say it was advice, they said it was a promise of financial return. The defendants aren't being accused of giving unlicensed or poor quality advice.

  5. Claptrap314 Silver badge

    Small correction needed in article

    "while one investorgambler had reportedly purchased"

    1. Fogcat

      Re: Small correction needed in article

      "While one investor had reportedly purchased Moments worth a total of over $15.6 million."

      That was the bit that made my jaw drop, who has 15 million dollars just laying around that they splash on virtual cards? Or did they actually look at this, investigate, and go 'yeah I'll sell all my stocks and bonds and buy this new thing instead'?

      1. Anonymous Coward
        Anonymous Coward

        Re: Small correction needed in article

        It's unlikely they paid $15.6 million in actual Benjamins, it's almost certain that they bought the NFTs with another fantasy pseudo-currency like Bitcoin which claims to have a value of $15.6 million in USD.

      2. Fruit and Nutcase Silver badge

        Re: Small correction needed in article

        I wonder if the investor would be interested in a NFT of a NFL player's fart

  6. Claptrap314 Silver badge

    Say what?

    "with the expectation of profit 'from the essential entrepreneurial or managerial efforts of others.' "

    What exactly was Dapper Labs supposed to be do to generate profit for the NFTs? I'm not going to dig into the case, but this strikes me as...weird. The value of a collectible is what people are willing to pay for it. The main difference (JUST in this context) between an NFT & the Mona Lisa is the nature of the fire that can destroy them.

    BTW, this is why baseball cards are not at issue--there is no one driving their value except the market.

    1. Crypto Monad Silver badge

      Re: Say what?

      That LeBron dunk NFT, for example, was purchased for six figures because its buyer believed it "was worth seven figures right away."

      The question is, why on earth did the buyer believe that? How did they come to the objective assessment of its value being ten times higher than what the seller was asking? Or indeed, that it had any value at all?

      Maybe they made a calculation that that there was a high probability of the existence of a Greater Fool who would buy it at a higher price. Maybe they had seen [claims] that similar items were selling for equally exorbitant prices.

      But really, I suspect it was nothing more than a gut feeling about this "cool" thing they were buying. A thing that doesn't even exist - unlike baseball cards, which at least you can hold in your hand. And of course, the gambler's excitement that they were going to make a huge profit at the expense of the casino or bookie.

  7. Disgusted Of Tunbridge Wells Silver badge

    Obviously.

    If you asked a financial advisor whether you should buy IBM stocks and he said "Oui", then (despite being a pretentious prick) he's given you a clear yes. Same applies to a thumb up or any other clear affirmative. Surely,

    1. Yet Another Anonymous coward Silver badge

      >buy IBM stocks and he said "Oui"

      I would assume they were being sarcastic

      1. Anonymous Coward
        Anonymous Coward

        Or a misunderstood "Oi!"

  8. John H Woods Silver badge

    Is this finally a legal precedent...

    ... for "context is everything"

  9. Neil Barnes Silver badge
    Childcatcher

    I'm perpetually amazed

    what people will purchase as 'investments'.

    But then I am reminded that any good sales transaction is one in which both parties believe they have shafted the other.

    1. Martin
      Happy

      Re: I'm perpetually amazed

      A little cynical, eh?

      I think it's more likely that most sales transactions are where the buyer pays just a little more than he'd have liked, and the seller gets just a little less than he'd like. But generally, both sides are reasonably happy.

  10. Ken Moorhouse Silver badge

    Where do you draw the line?

    Upward trending charts and rocket emojis seem to be treated as good signs, but what about other signals, the simplest example off the top of my head being "boom"? Would including the standard investor's disclaimer (DYOR) protect against legal action?

  11. Anonymous Coward
    Anonymous Coward

    Is there a Magic Bean emoji?

    Asking for a friend.

  12. gandalfcn Silver badge

    Unless your name is "Paedo boy" Leon calling people paedos or stating financiual intentions on twitter, then what you do and say are not really what you mean. The US legal system is a joke.

    1. gandalfcn Silver badge

      Daar downvoters, Leon is a proven liar and con artist, just like Murdoich & FauxNews, Congratulations.

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