A few weeks ago, a Canadian farmer sent a text message to a company he worked with that included a thumbs-up emoji, which symbolizes approval or agreement. To his surprise, the Canadian court treated this emoji as the farmer’s consent to sign a contract with the recipient of his message, and ordered him to pay damages.
The use of emojis in interpersonal communication has become ubiquitous. However, it appears the courts and the judicial system are not necessarily yet willing or prepared to accept this graphic language as legally binding when used in contracts.
The first challenge for the courts when dealing with emojis is deciphering their meanings. Similar to a sentence taken out of context, emojis may have multiple nuanced meanings. A different interpretation of the same emoji under different circumstances can lead to confusion and misunderstandings. In fact, the same emoji can have different meanings among different audiences, or even among people in the same audience. Therefore, when an emoji is an evidence, the court needs to understand the context in which someone sent it. Does a handshake represent consent or accepting a bet? Does a heart emoji always have romantic connotations or can one use it to convey simple appreciation?
Judges also have to decide how to relate to an emoji. Does it constitute an integral part of the message? Did the sender add it to convey emphasis or actually to downplay the tone of the message? The court does not yet have a set of tools in its toolbox to help it correctly interpret emojis.
Consent or Acknowledgement of Receipt?
In the above-mentioned Canadian case, the farmer did not agree to supply flax to a grain-processing cooperative, pursuant to the terms of a shipping agreement. The grain buyer claimed he and the farmer reached an agreement via text message. The grain buyer sent the farmer a message that included a picture of the contract, and asked the farmer to “please confirm the flax contract.” The farmer responded with a thumbs-up emoji.
The cooperative claimed breach of contract, since the emoji was an expression of agreement to the terms of the contract. The farmer, for his part, claimed the emoji merely symbolized his acknowledgement of receipt of the message, not his acceptance of the terms of the contract.
The Canadian court examined the history of the engagement between the parties and the way in which they had engaged in the past and found that the emoji here was a means to express consent, based on the prevailing consensus that such emoji conveys consent or approval. Ultimately, the court ruled in favor of the cooperative and ordered the farmer to pay compensation.
Explicit Contractual Consent
However, the courts do not always validate this new format of communication. In Israel, for example, during a 2020 lawsuit regarding a brokerage agreement, the district court had to interpret the significance of a sent smiley message.
The court ruled, from a legal standpoint, that the conclusion drawn from the presence of the emoji was quite “dry.” “It has no meaning, and regardless of how big the emoji’s smile was, it cannot constitute a substitute for explicit contractual consent. In any case, this ruling shows that contractual offer and acceptance rules will not be adapted to include a glossary of emojis any time soon. ”
It is actually in recent magistrate’s court rulings that we are seeing, in particular instances, that the sending of a thumbs-up emoji in response to a business quote constitutes “acceptance” of the offer for all intents and purposes and creates a valid agreement. Sometimes, the court interprets the sending of ideograms conveying “celebration” as a graphic indication of an intent to express satisfaction with a successful outcome, on which the counterparty relies. Although this reliance is not tantamount to the signing of an agreement, reneging on it may be interpreted as mala fides during negotiations.
Interpretation and Symbolism
One of the key problems is that laws and judicial proceedings are based, inter alia, on dialogue and on a particular logic. Emojis are not necessarily logical and unequivocal. They are symbolic and have multiple nuanced meanings that one can easily misinterpret. The courts will also have a hard time separating between the physical gesture that an emoji depicts and the legal meaning of that graphic symbol.
Just as the judicial system knew how to deal with the “X” mark instead of a signature in the past, it will have to learn how to deal with the new marks. Further, just as court rulings in recent years have considerably eroded the requirement of written documents in real estate transactions, we can assume the judicial system will continue contending with the new ideograms as a reflection of the true meaning of the parties’ intention.
If this trend of easing the requirements of formality continues, we can assume it will not be long before legal validity is given to material real estate transactions that were entered into with one tiny smiley.