A recent Saskatchewan decision has gone viral for its “emotive” subject matter. In South West Terminal Ltd. v. Achter Land, 2023 SKKB 116, the court determined that a contract had been formed as a result of one party responding to a text message with the “👍” emoji. While this decision may seem shocking 😲, it demonstrates the flexibility of Canadian contract law to adapt to modern electronic communications and serves as a point of caution that proper care must be taken in all forms of communication 📢 — emoji or otherwise.
Case Summary:
The plaintiff, South West Terminal Ltd. (“SWT”) sought to purchase 395 metric tonnes of flax 🌾 from the defendant, Achter Land (“AL”). The parties had a longstanding relationship, and on four prior occasions had completed similar contracts via text message 📱. In those cases, the parties would discuss the terms on the phone, SWT would prepare a written contract, sign it with wet ink, and text a picture of the signed contract, along with the message “please confirm contract” to AL, who would respond “looks good”, “ok”, or “yup”, and then deliver the product. The same process was followed here, except that AL replied to SWT with the “👍” emoji, and AL failed to deliver the flax, as by the time for delivery came the market price had nearly doubled 📈 compared to the price in the contract.
Applying the test for contract formation, recently restated by the Supreme Court of Canada in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22, the court considered whether a reasonable person in SWT's position would consider AL's conduct to constitute acceptance of the contract. The court found there was a meeting of the minds and a reasonable person would find that 👍 constituted AL's acceptance of the contract terms, given the common understanding of the emoji and the uncontested pattern whereby the parties entered into contracts with similarly terse text replies.
Practical Implications and Commentary:
Whether it be emails, faxes, or even telegraphs, the common law has continuously been forced to adapt to new communication technologies, and this decision interpreting emojis is but the latest iteration of this development.
Notably, the court found that 👍 sufficiently fulfilled the two purposes of an actual signature, being the conveyance of the identity of the signator and the plaintiff's acceptance of the contract. The court further found that under the circumstances, the 👍 emoji was an “action in electronic form” to express acceptance, under Saskatchewan's Electronic Information and Documents Act, 2000, and that it constituted an electronic signature for the purpose of the province's Sale of Goods Act.
Of course, this decision arises out of a fairly straightforward situation; the texting of a commonly-understood emoji between two individuals on a confirmed phone number. It remains to be seen how variations to this situation will impact this analysis. For example, there are questions as to how the analysis would change if the courts were considering the use of emojis with differing commonly accepted meanings (as between different cultures or age groups), the differing appearance of emojis on different messaging platforms, or communicating through other platforms where the identity of the sender is less readily apparent. This case also raises questions as to how emojis will be interpreted in other legal contexts, such as in the torts of misrepresentation or defamation.
In any case, before you consider retaining your teenager as a litigation expert in emojis to interpret the use of 🙏, 💯, or 🚨, this case demonstrates that such analysis will be dependent on the context the emojis are used in, and based on existing legal principles.
While the case is novel in its consideration of emojis in Canadian contract law, the use and analysis of emojis as a form of communication is not unknown to the courts. As noted in an article by Laurence Bich-Carrière, emojis have already been referenced in more than 115 decisions across Canada. Furthermore, the interpretation of emojis has already been considered in depth by other common law jurisdictions. In Israel, a 2017 decision found that emojis 🍾 signalled an interest by one party to rent a property and resulted in damages being awarded to the landlord. In the US, more than 586 decisions have referenced emojis — out of those, 45 decisions specifically referenced and interpreted the 👍 emoji.
Canadian courts are similarly catching up 🏃 with the digital age and appear to be well-equipped to tackle what the court described as the “new reality of Canadian society.” This case is an apt example of courts' adaptability to apply established legal doctrine on new forms of communication. The court's application of the consensus ad idem test on the use of 👍 in the current case was commendably contextual and flexible — hence, parties should be cognizant of their use of emojis in their communications, whether it may be a 👍, 👊, 🤝, 👀 or 👌!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
