Emoji Forms a Contract
Relevance Redactions Revisited
July 5, 2023Revocation of Consent to Search Mirror Image of Laptop
July 12, 2023Lots has been written about emojis. See, e.g., What Do Judge Peck’s 2009 Wm. Gross Opinion and “Zoomers” Have to Do With Each Other? Prof. Eric Goldman, cited in that blog, is one of the leading authorities.
In Farmer owes $82,000 in contract dispute over use of a ‘thumbs-up’ emoji, judge says | CNN Business (July 7, 2023), Jennifer Henderson reported on a Canadian decision in which a “thumbs up” emoji formed a contract. This parallels an Israeli decision described by Prof. Goldman.
According to Ms. Henderson’s article, grain purchasers sent a text to sellers. In the text, they offered to buy grain at specific terms. After telephone discussions, the seller drafted a contract, signed it, and sent a photo of it via cell phone, with the message: “Please confirm flax contract.” The buyer responded with a “thumbs up” emoji. The parties had negotiated four other contracts using texts, with responses like “ok,” or “yup.”
The buyer contended that the thumbs up emoji merely acknowledged receipt of the contract, not agreement with the terms. Ms. Henderson’s article states:
The judge said it appears the deal was “at least verbally struck,” according to the documents.
He wrote, “I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a 👍 emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. 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.”
Contract law is generally objective, and course of dealing can be a factor. Here, an objective observer viewed the emoji as accepting the offer.
An excellent resource on emojis is Eric Goldman, “Emojis and the Law,” 93 Wash.L.Rev. 1227 (2018), and his blog A Million-Dollar Thumbs-Up Emoji?-Lightstone v. Zinntex – Technology & Marketing Law Blog (ericgoldman.org)(emojis can satisfy the statute of frauds),[2] as well as sites such as 📙 Emojipedia — 😃 Home of Emoji Meanings 💁👌🎍😍.
Prof. Goldman wrote: “I use the thumbs-up emojis extensively, but it does pose some risks. In some cultures, it means F-U; and in the US, using it in online negotiations could be worth a lot of money.” Court Explains How Smileys Are “Prone to Multiple Interpretations”-In re State – Technology & Marketing Law Blog (ericgoldman.org) (May 10, 2022)(emphasis added).
Given the ambiguity of emojis, information governance professionals may choose to establish policies governing the use of emojis and conduct training sessions on the same topic.
UPDATE: See also Eric Goldman, A Thumbs-Up Emoji Costs a Canadian Seller $82,000-South West Terminal v. Achter Land – Technology & Marketing Law Blog (ericgoldman.org)(July 2, 2023), Doug Austin, Thumbs-Up Emoji Constitutes Contract Acceptance, Farmer Fined (ediscoverytoday.com)(July 10, 2023), and Nadine Yousif, Farmer fined $61,000 for using thumbs-up emoji – BBC News.
Prof. Goldman’s blog reports on 45 prior decisions regarding the “thumbs up” emoji.
Ms. Yousif wrote that the court looked at the definition in Dictionary.com which stated that the emoji “is used to express assent, approval or encouragement in digital communications.” That article continues:
[Justice Keene] added that while a signature is the “classic representation” of confirming someone’s identity, that does not prevent an individual from using modern-day methods – like emojis – to confirm a contract, and that an emoji can be used as a digital signature.
“This court readily acknowledges that a thumbs-up emoji is a non-traditional means to ‘sign’ a document,” Justice Keene wrote. “But nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature'”, he said – to identify the signatory, which is done using Mr Achter’s cell phone number, and to convey acceptance of the contract.
“I agree that this case is novel (at least in Saskatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage,” the judge concluded.
UPDATE: See Debra Cassens Weiss, Thumbs-up emoji constituted acceptance of texted contract, Canadian judge rules (abajournal.com)(July 13, 2023):
Santa Clara University law professor Eric Goldman told the New York Times the precise meanings of emojis in both the United States and Canada will depend on the facts of the case.
“This case won’t definitively resolve what a thumbs-up emoji means,” said Goldman, who is co-director of the High Tech Law Institute at Santa Clara University School of Law. “But it does remind people that using the thumbs-up emoji can have serious legal consequences.”
