Thumbs-up if you agree: emoji can represent contractual agreement according to Canadian judge

Can an emoji be used to accept and form a legally binding contract?

The question

Can an emoji be used to accept and form a legally binding contract?

The key takeaway

A Canadian court has decided that a thumbs-up emoji was used to validly accept and create a legally binding contract. This decision shows that using emojis and informal messaging tools to conduct business poses a risk that contracts could be accepted when they may not be intended to be.

The background

On 8 June 2023, the Canadian provincial court of Saskatchewan ruled that Mr Chris Achter had used a thumbs-up emoji to validly agree a contract to deliver 86 tonnes of flax for a price of $669.26 per tonne.

The court found that Mr Achter’s use of the thumbs-up emoji meant that he had accepted the contract according to an “uncontested” process that both parties had previously used to agree similar contracts. Mr Achter had previously accepted contracts by texting succinct phrases, such as “looks good” and “yup”, to confirm potential orders after receiving an initial “text blast” and phone call setting out the proposed terms.

The development

Agreeing by emoji

The court reached its conclusion by deciding that the meaning of the thumbs-up emoji should be considered according to what an “informed objective bystander would understand” rather than the subjective intention of Mr Achter in sending the thumbs-up, or the understanding of the person receiving the emoji. This included considering that a thumbs-up emoji is now widely defined in dictionaries to “express assent, approval or encouragement in digital communications” and finding that the emoji was “an action in electronic form” capable of being used to accept legally binding contracts according to Canadian legislation.

Emojis as signatures

The court also found that a thumbs-up emoji, whilst non-traditional, was a valid electronic signature under Canadian legislation and fulfilled the two purposes of signatures, namely, to identify the person signing and to express acceptance of a contract. This recognition follows previous Canadian case law which similarly found that emails could stand as signatures that can legally bind contacts.

The court also stated that it should not “attempt to stem the tide” of modern-day use of technology to accept contracts when it was asked during the proceedings to consider whether this decision would open the “flood gates” for further claims addressing the meaning of many other emojis, such as the fist-bump and handshake emojis.

Why is this important?

Whilst this decision will not bind courts in England and Wales, similar decisions are likely to emerge in other jurisdictions that also feature legislative regimes that are attempting to keep up with emerging technologies and the different ways they are used in digital commerce. Businesses may be concerned by the uncertainty this presents and should consider whether their employees’ actions could unintentionally create legally binding contracts. This concern is likely to be exacerbated by the normalised use of emojis throughout internal and external workplace communications, the variety of messaging and communication platforms that remain in the post-Covid world of remote work, and when business is conducted across both personal and business devices.

Any practical tips?

Businesses should be aware of this decision and the possibility for courts across various jurisdictions to make similar decisions. They should be mindful of the risks inherent in using unclear and informal methods of agreeing contracts, as well as have a thorough understanding of the extent to which their contractual negotiations may be being made over digital messaging platforms. It goes without saying that establishing clear procedures for agreeing contracts, and ensuring this is followed by all employees, is a sensible precaution for any business.

Autumn 2023