A Canadian judge recently ruled that the popular “thumbs up” emoji may be used to form a contract between parties. The judge stated, “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.”
Although the case — Southwest Thermal Ltd. v. Achter Land & Cattle Ltd. — does not establish precedent in U.S. courts, it does provide an interesting and perhaps controversial interpretation of this common means of communication and acceptance in today’s world.
In this case, a grain buyer wanted to purchase flax from a farmer. The buyer texted the farmer a picture of a contract and asked the farmer to “please confirm flax contract” in the message. The farmer responded by text message and sent a thumbs up emoji, which he later said only indicated that he received the contract. The farmer said, “I did not have time to review the flax contract and merely wanted to indicate that I did receive his text message.”
The seller/farmer did not want to honor the terms of the agreement after flax prices increased.
In his ruling, the judge noted that the dictionary.com definition of the thumbs up emoji is “used to express assent, approval or encouragement in digital communications, especially in western cultures.”
He added, “I’m not sure how authoritative that is, but this seems to comport with my understanding from my everyday use even as a late-comer to the world of technology.”
The judge also noted that the parties had a lengthy history of doing business together and confirmation was often by text with responses of affirmation of “looks good,” “ok” or “yup.”
The judge ruled that there was a valid contract between the parties, which the seller/farmer breached by failing to deliver the flax. The buyer was awarded damages of $82,000 CAD, or approximately $61,000 USD.
The seller’s attorney argued that allowing emojis such as the thumbs up, handshake or fist bump would “open up the flood gate” to cases requiring an interpretation of the meaning of an emoji. In response, the judge noted that the court could not change the commonly accepted use of the meaning of emojis in today’s digital world.
The case points out the perils of today’s technology on contracts, and is a reminder for businesses to pay attention to the commonly understood interpretation of digital communications.
For additional information on this, or any other labor and employment law matter, please contact one of the attorneys in the Portsmouth, NH, office of Jackson Lewis P.C.
100 International Drive, Suite 363
Portsmouth, NH
(603) 559-2700
www.jacksonlewis.com
