A Canadian court has recently ruled that a thumbs-up emoji (👍🏽) sent as a text message can be interpreted as consent to a contract – in what is being seen as an unusual case, with courts deciding on the meaning of emojis that are now liberally used in daily online conversations.
The case here involved people from two companies, South West Terminal Ltd. (SWT) and Achter Land & Cattle Ltd., who had done business with each other in the past. SWT sued Achter, a farming company, for a breach of contract and an alleged failure on their part to deliver 87 tonnes of flax, a variety of seeds.
However, Achter claimed that they never agreed to the contract in the first place. The court ruled in SWT’s favour, asking Achter to pay $61,442.
What was the case about?
The buyer from SWT, Kent Mikleborough, spoke with farmer Chris Achter on the phone and texted a picture of a contract to deliver the flax later, asking the farmer to “please confirm flax contract” in the message, The Guardian reported. Achter replied to this photo with a thumbs-up emoji. When it came time for the goods’ delivery, they never reached SWT.
According to court documents, Achter said, “I confirm that the thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax Contract were not sent to me, and I understood that the complete contract would follow by fax or email for me to review and sign. Mr. Mikleborough [sic] regularly texted me, and many of the messages were informal.”
A lawyer, who cross-questioned Achter, asked if he had ever googled the meaning of the thumbs-up emoji, prompting Achter’s lawyer to object and say “My client is not an expert in emojis.” The first lawyer then continued to explain that thumbs-up is generally interpreted as a version “I approve” and therefore, its meaning was clear.
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What did the court rule?
Ultimately, the court ruled in favour of Kent, reasoning that there was enough from SWT’s side to indicate that an answer to a contract was being demanded from Chris. The court said:
“Chris responded to the offer to contract – Kent called him because through Bob Achter (Chris’s father) Chris had expressed interest in a flax contract. There would be no other purpose for Kent’s telephone call on March 26, 2021 to Chris. During that call Kent and Chris talked about the flax contract and just like in previous occasions… a deal appears to have been at least verbally struck. This was followed up by Kent sending a screenshot of the clearly titled Deferred Delivery Production contract… just as they had done on numerous occasions before without any issues. Kent added ‘Please confirm flax contract’ – just as he had done in the past… Chris responded from his cell phone with a 👍🏽 emoji.”
Further, it noted that in the past, when Kent added to the offered contract, Chris did so by messaging similarly short responses: “looks good”, “ok” or “yup”. “The parties clearly understood these curt words were meant to be confirmation of the contract and not a mere acknowledgement of the receipt of the contract by Chris. There can be no other logical or creditable explanation because the proof is in the pudding,” the court said.
What precedent might this set for the future?
However, the court added that going beyond this case, one involving the interpretation of a simple 👍🏽 emoji to signify assent and acceptance, the exercise would “open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean.”
“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,” the court said.
Such cases aren’t exactly unheard of, but still novel. According to the technology news website The Verge, in a similar case of consent to contract, in 2017, a couple in Israel was charged thousands of dollars in fees after a court ruled that their use of emoji to a landlord signalled an intent to rent his apartment. They had sent the landlord a text with emojis of a champagne bottle, a squirrel, and a comet, but later stopped responding to the landlord’s texts. The emojis used here attested to their confirmation, the court ruled.
Also in Explained | Why are emojis misinterpreted?
Emojis were created by Japanese artist Shigetaka Kurita in 1999 and then hailed as a “new-era hieroglyphic language”, wrote Chinese researchers Jiamin Pei and Le Cheng in a Nature article in 2022. The word emoji is made up of two Japanese words e (“picture”) and moji (“character”). They cited a recent survey that said court cases relating to emojis in the United States have been growing exponentially, particularly in sexual predation, employment discrimination and murder cases.
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In their review of emoji-related cases across the US, China, Israel and a few other countries, it was found that the sender’s and recipient’s various perceptions of what an emoji means could be a result of different platforms (the apps or websites used as each one has a variation on their emojis), including devices, operating systems and software programs. For instance, an emoji that resembles a toy squirt gun in a message sent on one platform may appear as a revolver on a recipient’s device.
Also, while older respondents are considered more likely to interpret an emoji literally, younger respondents can use them more liberally, even sarcastically. In another case in China, a person sent a WeChat message to someone else about the exact amount of money that they owed him, who then responded with the okay (👌🏽) emoji. At trial, it was then claimed that this emoji did not signal a recognition of the message’s contents. “The court finally decided that this emoji could not be perceived as a manifestation of Yan’s explicit approval,” the researchers wrote.
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Given the range of emojis now available to users, and their variations across platforms, the change in their perception across cultures, age groups and contexts, disputes are likely to keep arising over time.
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