In this age of social media and texting, we use a plethora of shorthand visual and typographic icons to express a range of responses or reactions to posts or texts: a heart to indicate love, a laughing face or an “LOL” to indicate humor, a “: )” to indicate general pleasure.
But be careful the next time you use the thumbs-up emoji, especially in a business context. It could be interpreted as the equivalent of a signature and indicate to the recipient that you agree to a contractual exchange.
In July 2023, a Canadian court in Saskatchewan ruled as such, in South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII). The case involved a text exchange between a farmer, Chris Achter, who was to sell 87 metric tons of flax to a buyer, Kent Mickleborough.
Mickleborough signed the contract and texted a photo of it to Achter with the accompanying text “Please confirm flax contract.” Achter responded with a thumbs-up emoji, which to Mickleborough indicated that Achter was agreeing to the contract.
Justice T.J. Keene of the Court of King’s Bench for Saskatchewan ruled that Achter breached what Keene deemed as a valid contract when Achter failed to deliver the flax to Mickleborough.
Keene wrote in his ruling that “This court readily acknowledges that a 👍 emoji is a nontraditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’ — to identify the signator [and] to convey Achter’s acceptance of the flax contract.” Justice Keene ordered Mr. Achter to pay damages of CA$82,200 (approximately US$61,000).
As The New York Times reported, “In coming to his decision, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: ‘used to express assent, approval or encouragement in digital communications, especially in Western cultures.’”
In the United States, there have been a few cases to date that interpret the thumbs-up emoji, as Eric Goldman writes in his Technology & Marketing Law Blog about this Canadian case. One is Lightstone v. Zinnex, involving the sale of personal protective equipment during the pandemic, and Bardales v. Lamothe, involving the estranged parents of a child and decisions about where the child should live. (On his blog, Goldman lists 37 U.S. court opinions that reference the thumbs-up emoji.)
Here at Socially Aware we’ll be keeping a close eye on the legal developments surrounding the implications of icons, emojis, and other design and display-related expressions that may have legal consequences.