Have you ever used an emoji in a business message sent by SMS, WhatsApp or WeChat?
As digital communication becomes embedded in everyday business dealings, Courts are increasingly required to interpret informal exchanges. This includes emojis, and Courts have shown a willingness to impute meaning to emojis with as much legal significance as ordinary text.
When could an emoji have legal significance and what does it mean? We discuss some examples.
Contract
In Canada, South West Terminal Ltd v Achter Land & Cattle involved a supply contract sent by text message. The recipient responded with a thumbs-up emoji. The Court held that the emoji constituted acceptance of the contract, applying traditional contract principles to modern communication methods. The decision confirms that informal messaging can satisfy the requirements for offer and acceptance.
In Israel, a string of celebratory emojis sent in response to a rental advertisement, while not a binding contract, demonstrated a sufficient commitment and optimism to justify reliance by the landlord, resulting in compensation for losses when the lease did not proceed.
Defamation
In Burrows v Houda, the NSW District Court considered whether tweets containing several emojis could be defamatory.
Judge Gibson decided that expert evidence was not necessary to interpret emojis. Her Honour accepted that emojis generally carry standardised meanings and referred to sources such as Emojipedia to determine how an ordinary reasonable reader would understand them. The Court emphasised that meaning is assessed by overall impression, not by technical definition.
Importantly, the emojis were not treated as decorative or incidental. They formed part of the publication and contributed to the meaning conveyed. The text was held to be defamatory. The case reinforces that Courts will assess digital communications holistically, including emojis, tone and context.
In the United Kingdom, a tweet ending with “*innocent face*” in the context of a public controversy was held to carry a defamatory meaning, with the Court interpreting the phrase as ironic when read by a reasonable reader (Lord McAlpine of West Green v Bercow).
What does that emoji mean?
In many legal contexts, the meaning of words is assessed, not by reference to intention of the author, but by reference to what a reasonable onlooker would understand the words used to mean. The same approach is applied to emojis. Courts do not ask what the sender intended the emoji to mean. Instead, they assess how a reasonable hypothetical recipient would understand the communication in context.
It is interesting that, in one case, the Court referred to an internet encyclopedia of emojis called Emojipedia to inform meaning ascribed to particular emojis. In this case, there was little consideration of whether Emojipedia is authoritative. Future cases may be required to consider whether the Courts and parties can confidently rely on Emojipedia or other emoji dictionaries as providing an accurate description of the meaning of emojis.
For in-house lawyers, directors and senior officers, the implications are practical.
Business communications sent via text, other messaging platforms and even via social media may not be regarded as informal in the eyes of the Court.
Organisations should ensure that internal communication policies and training reflect the legal risks associated with informal messaging. This is particularly important where negotiations, disputes, regulatory issues or sensitive commercial matters are being discussed outside formal written or email correspondence.
Before using an emoji in a business context, consider whether it has a clear and well understood meaning.
As communication practices evolve, Courts are demonstrating a willingness to apply established legal principles to new forms of expression.
If you would like advice on how digital communications may affect your contractual arrangements or conduct in business dealings generally, please contact Hayden Fox or Bronte Fox from our Disputes Resolution team.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.