A recent Canadian case has found emojis can be used to sign contracts – in certain circumstances.
A Canadian case is the latest in a line of cases noting that emojis have accepted meanings and the courts will use those meanings to decide matters.
In South West Terminal Ltd. v Achter Land & Cattle Ltd. (‘Achter’),[1] the parties were negotiating a contract to sell grain; after some discussion, the buyer texted a photo of the contract to the seller, who replied with the ‘thumbs up’ emoji, which the buyer took to be confirmation of the contract – that is signing it via electronic means. The seller claimed that he was merely confirming he had received the contract.
Ultimately the seller did not deliver the grain, and the buyer sued. Central to the question before the court was the meaning of the emoji, and the court found in favour of the buyer, deciding that in the circumstances the ‘thumbs up’ emoji was sufficient to sign the contract and bind the seller to its terms.
While this might seem a fairly radical outcome, it should be born in mind the decision relies heavily on the previous behaviour of the parties involving non-traditional ways of executing contracts. Evidence showed the seller had in the past confirmed contracts by texting “looks good”, “ok” or “yup”. On each of those previous occasions, nothing more had been required and the seller delivered the grain (and was paid for it).
The court recognised the ‘thumbs up’ emoji had a broad range of meanings, including assent, approval or encouragement.[2] It is clear from the decision that the earlier practice of concluding contracts via informal communications which the parties had adopted was crucial to the finding that the emoji was enough to sign the contract. In addition, the seller made no further enquiries or request for a hard-copy contract to sign.
Although Achter is a decision confined to its facts, it is clear the interpretation of emojis is becoming a significant issue in courts. In 2017, the Massachusetts Supreme Judicial Court delivered an opinion in Commonwealth v Castano[3] which relied in part on the meaning of emojis.
In that case, Castano was appealing a murder conviction partly on the basis that the trial judge denied a motion to supress certain evidence. The court found that the trial judge should have allowed the motion to suppress, but dismissed that ground of appeal due to other evidence being sufficiently overwhelming that it nullified the effect of the evidence which should have been suppressed.
Castano’s defence was that he had accidentally shot the victim, but his text communications with a friend indicated otherwise, including Castano “…sending an emoji face with X’s for eyes alongside the victim’s nickname “Explosive” – that suggested the shooting had already occurred. Yet, there was no evidence that the defendant ever called 911 or otherwise sought to aid the victim.”[4]
The court’s acceptance that an emoji face with X’s for eyes meant a person was dead played a part in the dismissal of the appeal – just as the meaning of the emoji with the tongue poking out was central to Geoffrey Rush’s successful defamation case against Nationwide News Pty Ltd.[5] Courts have even detected fabricated evidence based on what emojis a particular phone could support, as covered in this earlier Proctor article.
Suffice to say that the interpretation of emojis – and, no doubt, other communication quirks of the digital world – will likely be a growing part of the work of our courts and legal system; lawyers and judges will need to be across these new forms of communication.
As Keene J noted in Achter:
“…this Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”[6]
[1] 2023 SKKB 116 (‘Achter’) (King’s Bench for Saskatchewan).
[2] Ibid, [31].
[3] 478 Mass. 75, 6 (Mass, 2017).
[4] Ibid, 6.
[5] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496.
[6] Achter (n 1)[40] (Keene J).
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