HOW THE USE OF EMOJI IN ELECTRONIC COMMUNICATION CAN LEAD TO A BINDING CONTRACT

One of the trends in electronic communication in today’s world is the use of emoji. An emoji has been defined as “a digital image that is added to a message in electronic communication in order to express a particular idea or feeling.”

We are all familiar with emojis and probably use some of them frequently in our chats and other informal engagements. It has been observed that “the primary function of emoji is to fill in emotional cues otherwise missing from typed conversation.”  This is true.

Interestingly, considering the level of adoption of social media and other modern Internet-based networking and communication tools such as Whatsapp, WeChat, LetsChat, etc, informal communication by way of chats and texts are beginning to gain attention. This development tends to sometimes elevate what is otherwise an informal engagement to a formal one, depending on the particular situation.

The implication of this development is that your communication via social networks and other communication channels may be held to express an intention to create legal relations. One of the elements of a binding contract aside from offer, acceptance, and consideration is the intention to create legal relations.

Recent development

Recently, a Canadian Court held in the case of South West Terminal Ltd v. Achter Land & Cattle Ltd, 2023 SKKB 116 (CanLII) that a thumbs-up emoji used by a person in response to an offer made through text message was sufficient to signal acceptance of the offer, thereby creating a binding contract. 

When I saw the news flash regarding the decision in a publication by The New York Times, what immediately came to my mind was the principle of Contract Law which states that an acceptance can only be valid if it was absolute, unqualified, unconditional, and in fact, unequivocal. 

It’s difficult to agree that the use of a thumbs-up emoji signals adequate acceptance—an acceptance which ticks the above indices. The reason is that a thumbs-up emoji may also be used to express a confirmation that one has received a message and not necessarily that the contents have been accepted. Personally, I’ve sometimes used thumbs-up emoji simply to make this kind of confirmation without intending it to be a definite confirmation of acceptance. In some other instances, I use it as a form of approval. I’m sure I’m not alone on this.

Nonetheless, since a contract can be held to exist by considering the conduct of the parties generally, the use of thumbs-up emoji or other emoji may be rightly held to constitute acceptance depending on other events which might have played out between the parties. It is for this reason that I find the decision of the Canadian Court in South West Terminal Ltd. v. Achter Land & Cattle Ltd delivered on 8 June 2023 quite compelling. I now turn to the facts of this case and the reasoning behind the decision of the Court.

South West Terminal Ltd v. Achter Land & Cattle Ltd

South West Terminal Ltd (“SWT”) is a grain and crop inputs company. Achter Land & Cattle Ltd (“Achter”) is a farming corporation owned and operated by one Chris Achter. There had been a long standing business relationship between SWT and Achter. On 26 March 2021, SWT ordered 86 metric tonnes of flax seeds to be supplied by Achter. The price was set at $17.00 per bushel (which amounts to $669.26 per tonne), with delivery period stated as “Nov”.

The order was placed by one Kent Mickleborough, a Farm Marketing Representative with SWT, who was a grain buyer for SWT. Following a phone call with Chris Achter, Kent had drafted a contract containing the above terms, applied his ink signature to the contract, then took a photo of the contract using his cell phone. Thereafter, Kent texted the photo of the contract to Chris, along with the text message: “Please confirm flax contract”. Chris texted back from his line using a thumbs-up “👍” emoji.

However, Achter did not deliver the 87 metric tonnes of flax to SWT in November 2021. By the end of November, the price had gone up to $41.00 per bushel (which amounts to $1,614.09 per tonne) as against $17.00 per bushel (which amounts to $669.26 per tonne), as originally contemplated.

The issues & contentions

Expectedly, trouble began. SWT filed an action against Achter for breach of contract. One of the issues the Court was called to determine was whether there was a valid contract formed between SWT and Achter. SWT contended that there was a binding contract the moment Chris used a “thumbs-up” emoji to respond to the contract forwarded to him via phone on behalf of Achter.

Achter disagreed. It contended that there was no consensus ad idem (a meeting of minds) which is the basis of any contract. According to Achter, the thumbs-up emoji by Chris simply confirmed that it received the flax contract. It was not a confirmation that it agreed with the terms of the contract. Achter also relied on the statutory defence found in section 6(1) of The Sale of Goods Act, RSS 1978, (SGA). It argued that the contract is unenforceable because there was no note or memorandum of the contract made or signed by the parties.

Court’s decision

Keene, J. took time to consider the issues and the arguments. His Lordship relied on the dictionary meaning of the thumbs-up emoji, the provisions of section 18 of the Electronic Information and Documents Act, 2000, Chapter E-7.22 of the Statutes of Saskatchewan, 2000 (as amended) (“EIDA”), and the evidence of surrounding circumstances to arrive at the conclusion that there was a valid contract.

Meaning of thumbs-up emoji

The Court relied on the dictionary meaning of 👍 emoji. Thumbs-up emoji “is used to express assent, approval or encouragement in digital communications, especially in western cultures.”

Gladly, Keene, J. didn’t rely only on the above dictionary definition of thumbs-up emoji. (To my mind, “Dictionary judges” don’t often make the best of judges.) His Lordship also relied on section 18 of EIDA. The section provides that an offer or acceptance may be expressed through information or a document in an electronic form. Also, offer and acceptance may be expressed by an action in an electronic form. This action includes touching or clicking on an appropriately designated icon or place on a computer screen.

The Court referred to the case of Quilichini v. Wilson’s Greenhouse, 2017 SKQB 10, [2017] 8 WWR 375 where it was held that an agreement to contractual terms can be expressed by touching or clicking on an appropriately designated icon or place on a computer screen. It is immaterial that, alternatively, the contract could have been executed by printing a hard copy and signing it physically. Also, the fact that there are optional ways to execute the contract doesn’t mean using only one of them doesn’t constitute agreement.

Relying on EIDA and Quilichini, the Court held that a 👍 emoji is “an action in electronic form” that can be used to express acceptance as contemplated under section 18 of the EIDA. It further held that the thumbs-up emoji amounted to an electronic signature of acceptance for the purpose of the SGA.

Evidence of other circumstances

The Court found that after using the thumbs-up emoji, Chris never contacted Kent or anyone at SWT to discuss further. This meant that all was fine. But that’s not all. The Court considered the business relationship history of the parties. It found that there had been “an uncontested pattern of entering into what both parties knew and accepted to be valid and binding deferred delivery purchase contracts on a number of occasions.”

Interestingly, the Court noted that each time Kent added to the offered contract “Please confirm terms of contract”, Chris confirmed by succinctly texting “looks good”, “ok” or “yup”. According to the Court, “the parties clearly understood these curt words were meant to be confirmation of the contract and not a mere acknowledgement of the receipt of the contract by Chris. There can be no other logical or creditable explanation because the proof is in the pudding.” In those instances, Chris delivered the grain as contracted and got paid. There was no evidence he was merely confirming he received the contracts and was left to ponder on them.

In the final analysis, Keene, J. rightly concluded:

I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a 👍 emoji. In my opinion, when considering all of the circumstances, that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view, a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad idem – a meeting of the minds – just like they had done on numerous other occasions.

Conclusion

I commend the Court for painstakingly preserving the sanctity of contract. Although this case is of persuasive authority being a foreign decision, I believe the Nigerian courts will have no difficulty relying and applying it when necessary. In doing so, it is important that—as the Court has done above—the circumstances of each case should be comprehensively considered. In other words, depending on the circumstances of each case, the use of an emoji may or may not be interpreted as an acceptance.

Undoubtedly, this case serves as an eye-opener for everyone. It is important to take seriously every communication that is capable of impacting your business. This is to avoid needless liability.