Emojis in law ‘new reality’, Canadian judge says
A Canadian judge found the thumbs-up emoji sent in a text exchange was enough to validate a binding contract, noting it was the “new reality” that courts would have to meet new digital challenges.
When Canadian grain and crop company South West Terminal (SWT) sent a picture of a contract to farming corporation Achter Land & Cattle and received the emoji in response, it believed the two had entered into a binding contract to deliver 87 tonnes of flax.
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After the November 2021 delivery date rolled around without the flax, SWT took Achter owner Chris Achter to court to seek damages worth $82,200.21 for the alleged breach of contract.
Justice Timothy Keene said what set this case apart was the “use of the thumbs-up emoji and what that meant in the context”.
In this particular case, Justice Keene said the emoji was enough to establish there was a “valid contract between the parties that the defendant breached by failing to deliver the flax”.
“In my view, a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item — a meeting of the minds — just like they had done on numerous other occasions,” Justice Keene said.
“I find under these circumstances a [thumbs-up] emoji is an ‘action in electronic form’ that can be used to allow to express acceptance.”
Justice Keene relied on the parties’ long history of working together and Mr Achter’s typical response to pictures of the contracts sent by SWT with “curt” words, such as “OK” and “looks good”.
He said these words were “meant to be confirmation and not a mere acknowledge of the receipt of the contract”.
“There can be no other logical or creditable explanation because the proof is in the pudding. Chris delivered the grain,” Justice Keene said.
However, in the current matter, Mr Achter contended the emoji did not mean he accepted or agreed with the contract and instead “took the position that he is generally unaware of what a [thumbs-up] emoji means and in particular what he meant to convey”.
Justice Keene said this led to a “far-flung search for the equivalent of the Rosetta Stone in cases from Israel, New York State and some tribunals in Canada, etc., to unearth what a [thumbs-up] emoji means”.
The court eventually settled on a dictionary meaning that the emoji was used to “express assent, approval or encouragement”.
“I am not sure how authoritative that is, but this seems to comport with my understanding from my everyday use — even as a latecomer to the world of technology,” Justice Keene said.
Counsel for Mr Achter attempted to argue that accepting the emoji as a legally binding confirmation would “open the floodgates” and allow a number of cases to come forward with their own interpretations.
Justice Keene said courts should be ready.
“Counsel argues the courts will be inundated with all kinds of cases if this court finds that the [thumbs-up] emoji can take the place of a signature. It appears to be a sort of public policy argument.
“I agree that this case is novel … but nevertheless, 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 ready to meet the new challenges that may arise from the use of emojis and the like,” Justice Keene said.