Business and Legal Insights

Ancient Egyptians developed hieroglyphics as a form of communication around 3100 BC.  Fast forward 5,000 years, and they’re back.  People today regularly communicate with the use of emojis or emoticons, pictorial representations of emotions and ideas.  What started with some simple consecutive strokes on a keyboard or typewriter, such as :) to show happiness, has evolved into hundreds of far more colorful emojis that are standard today on most smartphones and other devices. By now most people have used some type of emoji in digital conversations.  Younger generations sometimes communicate using nothing but emojis.  Because emojis can be used as a form of communication, the question arises as to whether emojis can create a binding legal contract.

In a simple sense, a contract involves 1) an offer, 2) acceptance, and 3) consideration.  Acceptance can take many forms.  Verbally saying “yes”, “I agree” or one of many other phrases can create a verbal contract.  In writing, acceptance is ideally evidenced by a hand-written signature, but courts have recognized other forms of acceptance such as a simple stroke of the pen, even if it does not resemble the person’s name. The question of whether a thumbs up emoji, or any emoji for that matter, can constitute ‘acceptance’ to a contract is complex and can vary depending on the specific circumstances and legal jurisdiction.

In the 2022 New York case, Lightstone v. Zinntex, a court was faced with this question, and ultimately determined that the thumbs up emoji in a text conversation did not clearly constitute acceptance to a contract. Of particular importance in that case is that earlier in the text chain between the parties, that same party stated that he would not sign any contract. 

However, in June 2023 a Canadian court in the case, South West Terminal (SWT) v. Achter Land & Cattle, held that use of the thumbs up emoji did constitute acceptance to a text communication-based contract.  In that case, a farmer negotiated to sell grain to a buyer.  After the buyer texted a photo of a contract, the farmer replied with the thumbs up emoji.  While the farmer later claimed that the emoji was only intended to acknowledge receipt, the court held that it constituted acceptance and created a valid, binding contract.

Thus, a thumbs up emoji could be interpreted as a form of acceptance if it clearly demonstrates an intention to agree to the terms of a contract. However, this interpretation may depend on various factors such as the context of the conversation, the parties involved, and the customary practices of the jurisdiction.

Language experts agree that emojis should not be considered to have universal meanings.  One possible exception might be the smiley face with tears, which in 2015 was announced by the Oxford Dictionary to be its “Word of the Year”.

Generally speaking, the meaning behind an emoji used in a conversation can depend on the context of the conversation, the socioeconomic and demographic backgrounds of the parties, and many other factors.  Similar to country-specific slang and different cultures ascribing different meanings to the same words, the same emoji can have different meanings to different parties, creating ambiguity and there being no meeting of the minds.

It is important to note that the use of emojis in legal contexts is a relatively new phenomenon, and the legal community is still grappling with how to interpret and assign legal weight to these pictorial representations. Courts and arbitrators may need to consider additional evidence and arguments to determine the intent and meaning behind the use of a thumbs up or any other emoji in a contractual context.

Technology is also ever-evolving, which adds an element of uncertainty to interpreting emojis.  While there are some universally accepted emojis available on most devices, different device manufacturers make different emojis available on their standard keyboards. If two people are communicating on devices made by different manufacturers, an emoji sent by one party might not appear on the recipient’s device, and instead a simple gray box or other generic symbol may display, meaning that the device is unable to display what was sent.  Similarly, updated operating systems may phase out old emojis or add new ones, meaning that the same issue could happen even between two parties using devices from the same manufacturer. 

Ultimately, it is advisable to exercise caution when relying solely on emojis to establish contractual acceptance. To ensure clarity and avoid potential disputes, it is generally best to use more explicit and unambiguous forms of communication, such as written statements or digital signatures, when creating and accepting contracts.