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Thumbs-Up Emoji Held as Valid Electronic Signature to Contract

In a recent novel decision, a Canadian court found that the use of a thumbs-up 👍 emoji held the same legal weight as a legally binding electronic signature to form a business contract.


The case of South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII) involved a contract for the sale of flax grain between a grain buyer and farmer. There, the grain buyer and the farmer spoke on the phone about the material terms of a contract for the sale and purchase of flax grain. Following that discussion, the grain buyer sent a text to the farmer, providing a picture of the contract and requesting him to “Please Confirm” it. The farmer sent a text back with a 👍 emoji. The farmer did not deliver the grain, and the buyer sued for breach of contract.


The grain buyer argued the farmer’s use of the emoji meant he had accepted the contract, while the farmer argued his use of the emoji merely meant he had acknowledged receiving the text message.


In evaluating the merits of each party’s position, the court acknowledged that interpreting emojis in this context was challenging. The court considered the laws governing contracts for the sales of goods and electronic signatures, the nature of the parties’ relationship, and the few cases of other jurisdictions generally involving the use of emojis.


In reviewing the record, the evidence demonstrated the parties had a history of negotiating and entering into contracts via phone calls and text messages. They would first have a call to negotiate and verbally agree on the material terms of their contract. After each call, the grain buyer would text the contract to the farmer for his acceptance and requested that he “Please confirm” it. Each time, the farmer sent a text back, confirming with "yup”, “ok," and “looks good”, followed by his timely delivering the grain in accordance with the applicable terms of each contract. On each occasion, the farmed had been paid. Based on these facts, the court found the parties clearly understood the farmer’s one-word text message replies, “yup” “ok” and “looks good”, meant the farmer accepted each offer and each such word served as his electronic signature to sign each of those contracts.


With respect to interpreting the farmer’s use of the thumbs-up emoji for the contract at dispute, the court reviewed and referred to the definition of a thumbs-up emoji from an online dictionary, which states: “ 'it is used to express assent, approval, or encouragement in digital communications, especially in western cultures (👍; Dictionary.com online: <https://www.dictionary.com/e/emoji/thumbs-up-emoji/> (17 May 2023)).’ ”


In light of this definition, coupled with the parties’ historical form and exchange of communications in entering into contracts, the court was satisfied that the farmer “okayed or approved the contract just like he had done before except this time” by using the 👍 emoji.

The court also acknowledged that while a thumbs-up emoji is not a traditionally acceptable means to electronically sign a contract, the facts established in this particular case were sufficient to find that the emoji constituted the farmer’s acceptance of and electronic signature to the contract.


Accordingly, the court found the parties had entered into a legally binding contract and the farmer’s failure to deliver the grain per that contract’s terms constituted a breach of contract. Consequently, judgement was entered in favor of the grain buyer and the farmer was ordered to pay damages in the amount of the outstanding balance, plus pre-judgment interests and costs.


Key Takeaways

Communicating business with the use of emojis is simply not a prudent practice. While this case involved text messages, the same applies to emails. As this case nicely illustrates, sending a thumbs-up emoji in response to an offer may inadvertently induce the receiving party to reasonably rely on its meaning and result in unintended contract formation. To prevent this, avoid the use of emojis when transacting business. Instead, use words that correctly reflect your intended message. Word responses need not be lengthy. For example, the grain farmer could have prevented the outcome by texting back any of the following:


  • Thanks. Will review and get back to you.

  • Received. Will review and circle back.

  • Got it. Will review and follow up.


In these examples, which is not an exhaustive list, each of the responses clearly convey acknowledgment of receipt, the intent to review, and an intent to follow up.


On a final note, while this was a Canadian case, the same analysis and rationale, subject to the facts, could apply to cases in any U.S. jurisdiction. Indeed, courts in New York have already been presented with disputes involving emojis. For example, in Lightstone Re LLC v. Zinntex LLC, Index No. 516443/21 (N.Y. Sup. Ct. 2022), a case also involving the use of a thumbs-up emoji sent in a text message, the court acknowledged that an emoji could serve as an electronic signature to create a valid contract if the evidence demonstrated a meeting of the minds and an intent to be bound.


Another example is the case of Friel v. Dapper Labs., 21 Civ. 5837 (VM) (S.D.N.Y. Feb. 22, 2023) where the court analyzed whether the use of the rocket ship 🚀, stock chart 📈, and money bags 💰 emojis in tweets constituted financial advice of profit. The court answered in the affirmative, stating that even while the literal word “profit” was not included in any of the tweets, these emojis objectively meant there was a financial return on investment. Id. at 46.


Emojis are certainly convenient, but can be subject to varying interpretations that could potentially result in conveying an unintended message. The prudent and less risky business practice is to communicate with actual words that clearly and accurately convey the intention of the message.


 

The information provided in this post is for general informational purposes and not intended as legal advice or legal opinion for any individual matter. Keep in mind that legal developments or changes to law may occur in the future and, as such, the information contained in this post may not be the most up-to-date legal or other information. Do consult your own attorney for any legal advice you may require. If you do not have an attorney and would like to explore a potential engagement for my services, please reach out to me via the contact submission form or by using the contact information provided in my bio.


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