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Undeniably, digitisation has increasingly blurred the boundaries between our personal and working lives to such an extent that formality in business communications can feel somewhat old hat. But consider the legal implications of the ultimate in informality – replacing words with emojis. Indeed, for commercial lawyers, the very thought is enough to trigger an attack of the vapours.
There are hundreds of emojis in everyday use, and it’s pretty much impossible to envisage a scenario where you cannot apply one. Although we tend to think of them in the context of informal interactions, they can have far more significance than you may realise.
These days, the electronic signing of documents is commonplace, and it’s unlikely that we even pause to consider the legal framework behind our actions. And that is a testament to the success of the Electronic Communications Act 2000 (“the ECA”), the primary purpose of which was to help build confidence in digital commerce and its underlying technology.
The ECA defines an electronic signature as “something associated with an electronic document that performs similar functions to a manual signature”. So, it’s pretty evident that applying our digital signature to a document in, say, DocuSign creates a binding contract. But what about other forms of electronic signature?
In fact, sometimes simply typing your name into a digital document can seal the deal. And the case of Neocleous v Rees (2019) demonstrates that an automatically generated email footer can prove legally binding if all the other elements of a contract are present.
South West Terminal Ltd v Achter Land & Cattle Ltd (2023)
However, a recent Canadian decision in the King’s Bench for Saskatchewan grabbed widespread attention when the judge held that a thumbs-up emoji constituted a binding electronic signature.
The case, South West Terminal Ltd v Achter Land & Cattle Ltd (2023), involved a disputed contract to purchase 87 metric tonnes of flax (linseed), deliverable within a specified period. The Plaintiff’s agent texted the Defendant’s representative, “Please confirm flax contract”, to which the representative replied with a thumbs-up emoji. The flax was not delivered, and the Plaintiff sued for breach of contract.
The focus of the case was the disputed meaning of the thumbs-up emoji. The Plaintiff argued that it amounted to agreement to the terms of the contract. On the other hand, the Defendant said it simply confirmed receipt of the contract, and he assumed the complete document would follow for him to review and sign.
The Court held that while a thumbs-up emoji was a non-traditional way to sign a document, in the circumstances, it was nevertheless a valid way to convey the two purposes of a signature, i.e.:
- to identify the signor; and
- to convey acceptance of the contract.
Analysing the nature of the parties’ longstanding relationship, it was evident that the Defendant had confirmed acceptance of earlier contracts with words such as “yup”, “ok” or “looks good”. As a result, the Court concluded that with the benefit of this background, a reasonable bystander would infer that the emoji response created a binding agreement.
Although this case is not binding in England and Wales, it underlines the possibility that an emoji could satisfy the definition of an electronic signature under the ECA. After all, why should an emoji be any less effective than an automatically generated email footer?
For businesses, large or small, the big takeaway from this case is that no matter how informal the communication, it’s still possible to create legally binding relations, particularly when reinforced by past conduct.