When are you really on the hook for your emoji?

There has been a flurry of excitement recently about the humble emoji[1]. Judges have consulted that venerable font of knowledge known as Emojipedia. Journalists have been busily writing articles cautioning people about the perils of using emojis, lest they inadvertently become bound to a contract that they had no intention of entering into.

In particular, the thumbs up symbol has moved from a colloquial (and perhaps lazy) gesture signifying “yes” or “ok” to now being seen as a proxy for acceptance of legal contracts.

But what has really changed?

The reality is not much.

The thumbs up gesture has been variously used in English speaking countries to indicate assent or approval for over a century. Think of examples in modern culture: a pilot indicating approval to take off or approach, a movie critic giving “two thumbs up” to a good movie, Fonzie, in the classic pop culture show “Happy Days”, as his utmost symbol of approval, and nowadays, its ubiquitous use across multiple apps as meaning “like”.

So why are we struggling with a virtual gesture in the legal and business world?

Perhaps it is simply context? If we turn our minds back to the first principles of contract law and the requirements for a valid contract – that is, offer, acceptance, certainty of terms, consideration and, above all, an intention by the parties to create a legal relationship – then we can start to see how an emoji can only ever play a small part of the contractual relationship.

Of course, not every emoji response will bind you. A thumbs up to your friends in response to an invitation to a drink does not require you to drink (or buy your friends drinks). A thumbs up to a good suggestion merely indicates you like the suggestion, not that you will necessarily do or act upon that suggestion. But that’s all because, in the social media banter between friends, family and acquaintances, there is almost never any intention to create a legal relationship (let alone any consideration).

What this means is that when it is claimed that an emoji has created a contract, it can only be in the background of all other elements of contract formation being present. This makes it much simpler to determine whether you are on the hook for your emoji or not.

The recent Canadian case that started all this flurry clearly demonstrates this. In that case, the judge found that the use of a “thumbs up” emoji can amount to the valid acceptance of a contract.[2] However, the context was vitally important. Clearly, this wasn’t a situation of two friends trying to decide on which bar to frequent. Quite the opposite really: here, we had a grain buyer who had had frequent contractual dealings with a farmer going back a number of years. Relevantly, terms of the contract in question had been made known to the farmer, and the farmer had responded to those terms with a big “👍” emoji. Even more damming for the farmer, there was a course of conduct of accepting contracts in a similar way in the past! The parties clearly were in discussion around a legal relationship. So, when the farmer failed to deliver, he was rightly sued for breach of the contract.

While the farmer’s lawyer attempted to argue that “allowing a simple 👍 emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean”, that is, with respect, trying to argue against the tide of modern commerce where it has been well established that contracts can be formed electronically, including by way of electronic signatures[3].

The key question was whether “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”.

In other words, it wasn’t the emoji of itself which led to the Canadian decision that a contract had been formed, rather it was the result of the application of an objective test of what a “reasonable bystander” would regard as being the intention of the parties, having made inferences from the parties’ acts and conduct (including patterns of past dealings).

It’s likely that’s how things would play out in Australia as well. Australian courts will generally recognise contracts that satisfy all of the elements of contract formation, and the courts have readily implied acceptance of a contract by way of conduct in circumstances where “a reasonable bystander would regard the conduct of the offeree as signalling to the offeror that his offer has been accepted”.[4]

However, when it comes back to first principles, the question is always whether or not there was an intention to create a legal relationship (and be bound). The High Court got it right, way back in the 1950s (pre emoji !), when it said, “no special form of words is essential to be used in order that there shall be no contract binding upon the parties”.[5] That sentiment could now be extended to “no special form of emoji is essential…”

So, when are you on the hook for using an emoji? The answer is, whenever you intended to be.

[1] The Guardian, 6 July 2023, New York Times, 7 July 2023, Law Society Journal, 11 July 2023, Indian Express, 10 July 2023, Reuters, 9 July 2023

[2] South West Terminal Ltd. v Achter Land, 2023 SKKB 116.

[3] Although the execution of deeds in NSW is still not 100% correct for processes such as DocuSign and so on.

[4] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 527.

[5] Masters v Cameron [1954] HCA 72, on whether the parties intended to be bound prior to a formal contract.