By Alex Hosmar, Law Clerk at Rose Law Group
The thumbs up emoji is as good as a signature, according to a recent judge’s ruling in Canada.
Most generally, a valid and binding contract must demonstrate mutual assent (consisting of a valid offer and acceptance) and consideration (a benefit each party receives for entering into the contract).
Traditionally, courts would recognize a physical handshake or a signature on a valid legal document as an acceptance (more recently, e-signatures have been accepted). However, as we enter into an era where new technologies continue to shape how we communicate and do business, courts have had to grapple with novel questions of what methods constitute valid acceptance.
Recently, a Saskatchewan court in South West Terminal Ltd. v. Achter Land ruled that the “thumbs up” emoji constituted valid contract acceptance, and it cost the defendant over $61,000 in damages.
The parties in Achter Land negotiated a contract whereby the defendant would deliver 87 metric tons of flax to the plaintiff in exchange for a certain price-per-ton. After receiving a digital copy of the draft contract, the defendant replied with a thumbs up emoji, which the plaintiff interpreted as an acceptance, and he proceeded with the understanding the contract was valid and binding. The defendant, on the other hand, argues the emoji simply confirmed receipt, thinking that a more-traditional gesture like a signature would be required for the acceptance to be valid. As such, the defendant never delivered the flax, and the plaintiff sued for breach of contract.
The question before this court was whether a reasonable person would interpret each party’s conduct in this case (notably that of sending the emoji) to manifest contract acceptance (i.e. establish that both parties intended to be bound).
The court in Achter Land held that the emoji had the same legal effect as a signature. Since the phone number it was sent from could be tracked to the defendant himself and that generally, the thumbs up emoji is equivalent to someone saying “yes,” “I agree,” or “sounds good,” the court recognized it as an acceptable, nontraditional mode of acceptance.
While this decision may not have precedential value in American courts today, many believe this case will pave the way for the use of emojis to have legal weight, as opposed to them functioning simply as a convenient shorthand to convey feelings or ideas over digital platforms. Courts in the US have begun pondering whether emojis sent over text message can memorialize and bind verbal negotiations (see Sewell v. Daniel) and, like Achter Land, whether (generally) an emoji is an acceptable signature substitute for a written agreement (see Lightstone RE LLC v. Zinntex LLC).
Some experts believe recognizing the thumbs up emoji as legally binding could open the floodgates to interpreting other emojis or even memes similarly. However, the judge in Achter Land was careful to apply the decision in this case only to the thumbs up emoji—representing a universally recognized gesture of approval or agreement. Courts will still need to look at the context of each case’s factual situations to determine if a reasonable person would recognize that the emoji is functioning in the same way as a signature.
Regardless, the decision in Achter Land embodies one of the ways the legal system attempts to honor its traditional rules within the context of changing technology.
