"Thumbs-up" emoji just got serious!

Be careful of your emoji response in business communications. Don’t be caught out by a smile or a thumbs up! Litigation Lawyer Kevin Li explains.

Introduction

A Canadian court has recently ordered a farmer to pay C$82,000 (approx. $60,000) for breaching a contract, in the case of South West Terminal Ltd v Achter Land 2023 SKKB 116. The judge ruled that the "thumbs-up" emoji carries the same weight as a signature, highlighting the need for courts to adapt to modern communication methods.

The case involved a buyer who sent a text message seeking to purchase flax at a specific price. The buyer communicated with the farmer via phone and text, including sending a picture of a signed contract and requesting confirmation through a message. The farmer replied with a “thumbs-up” emoji.  The parties had a course of dealings that also involved approving and accepting orders via short text messages.  

The Court eventually concluded that there was a valid acceptance of the contract from the farmer with the use of the emoji, and held the farmer accountable for failing to fulfill the contract based on these digital communications.

Use of Emoji in Australia

The use of emoji has also been considered in our Australian Courts in the case of Burrows v Houda [2020] NSWDC 485. This appears to be the first time that a Court in Australia has been asked to rule on the capacity of an emoji to convey defamatory meaning.

The claimant alleged they were defamed based on the use of what is commonly referred to as the “zipper-mouth face” emoji. This led the Court to consider the meaning of that emoji.

The Court determined that the "zipper-mouth face" emoji signifies "a secret" or "stop talking", relying on the accepted definition provided in Emojipedia. The Court acknowledged the importance of consulting internet dictionaries, like Emojipedia, in modern communications to assist the fact-finder in understanding how an ordinary and reasonable reader on social platforms would interpret the use of these symbols.

As suggested in Burrows v Houda, in the fast-moving world of online communication, emoji are incorporated in our daily common communication. Their ability to convey a set meaning is clear. They are extensively used as a form of hieroglyph for meanings and as such are capable of conveying meanings that are not only standardised but the subject of their own specialised dictionary.

In a different application by a former employee for unfair dismissal remedy in Mr Nirmal Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186, the Fair Work Commission was required to consider if the Facebook post shared by the ex-employee was mere sarcasm. While the Commission’s ruling did not hinge on the absence of a sarcastic emoji in the Facebook post, it is worth mentioning that the Counsel did inquire about this matter during cross-examination and advanced it as a point of argument.

Conclusion

As emoji become increasingly popular in communication, it is foreseeable that Courts will continue to face the challenge of interpreting and applying their meanings within a legal context. It remains to be seen how Courts will address and render judgments on the validity and implications of emoji in legal proceedings. We can anticipate that future cases will shed light on the evolving role of emoji in the realm of law.

PS.it might be wise to avoid using emoji altogether in any legal setting –“grinning face with sweat”.

How Sharrock Pitman Legal can assist?

Before signing a contract, no matter how this may be done, it is important to understand your obligations and any risks that might entail, as well as the benefits that you expect to receive.

Undoing a contract after it has been agreed is not an easy process, and it is not uncommon for the parties to find themselves drawn into legal proceedings.

Our Accredited Specialist Commercial Law team can assist in contract negotiations and drafting. When things go awry, our Disputes & Litigation team can advise options to resolve your dispute, including through mediation and litigation.

Please do not hesitate to contact us on 1300 205 506 or email litigation@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

For further information contact  
Kevin K F Li

Kevin Li is an Associate Lawyer in our Commercial Litigation team. He has an advisory and advocacy practice in the areas of Commercial Litigation, debt recovery, insolvency, liquidation, and shareholder, commercial and contractual disputes. Kevin can be contacted on (03) 8561 3315.

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