Emoji has legal standing in Canadian courts
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The implications of this case are enormous, so I will quote extensively from the following account, while noting there are many paragraphs with important content that I have merely mentioned or summarized. Those who are seriously interested in whether this decision constitutes compelling precedent for future jurisprudence should read the whole account. Those who are themselves responsible for making such decisions in the courts may wish to take a look at the original Case Citation: Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115.
"Thumbs-Up Emoji Formed Binding Sales Contract in Canada–Achter v. South West Terminal", by Eric Goldman, Technology & Marketing Law Blog (December 20, 2024)
This is the instant-classic lawsuit involving a Saskatchewan farmer who text-messaged a “thumbs-up” emoji in response to an offer to buy his flax. The lower court found that the seller’s thumbs-up emoji constituted assent to the buyer’s offer and awarded the buyer $82k (Canadian) in damages. Prior blog post. On appeal, the Saskatchewan Court of Appeals affirmed the decision on a 2-1 vote.
Note: as usual for Canadian opinions, this is a long read–220 paragraphs, approximately 28k words.
The Majority Opinion
For the most part, the majority opinion endorses the lower court decision, repeatedly saying (in essence) that the lower court judge got it right (or least didn’t make any obvious errors). The lower court judge should feel good about his work. That judge was surely dealing with an emoji interpretation case for his first time, and operates in a community not known for being at the cutting edge of technology law. Nevertheless, the lower court judge wrote a strong and thoughtful opinion that held up on appeal. At the same time, the majority opinion also reflects the standards for appellate review in Canada, which provide some deference to the lower court ruling.
I especially liked the majority’s framing that emoji interpretation isn’t really a new skill for common law courts:
human communication is often subtle. Words, phrases, gestures and symbols may carry more than one meaning. All of this gives rise to the potential for ambiguity and uncertainty and, indeed, litigation. The law has long accommodated for this, and courts are often called upon to determine the legal import of a multitude of communication types between individuals. The fact that, in this case, one part of the communication comprised an emoji simply provides a modern twist to this otherwise rather unremarkable observation
Nonetheless, the majority argued that, in this case, the emoji functioned as a signature.
While Canadian law resembles US law about electronic signatures, the emoji-as-signature issue may have been an easier call in the US courts. I think that the E-Sign and UETA laws in the US make it entirely clear that the emoji usage in this context would satisfy their requirements as a signature.
It appears the seller argued that a signature needs to be a newly created artifact, like how a wet-signature (ink on paper) creates something that didn’t previously exist. The majority does not agree:
I can agree with ALC that Mr. Achter did not create the thumbs up emoji for the purposes of signing contracts. However, the same can be said about the letters that together make up a person’s name. In either case, what is controlling is the use to which the thumbs up emoji or those letters are put.
There was a dissenting opinion, but it is technical and veiled to a degree that I don't believe it is worthwhile asking the entire Language Log readership go through it.
Eric Goldman, the author of this article, closes it with a list of sensible "Implications":
- Emoji law sits on top of longstanding legal principles, many of which the courts can apply without any exceptionalism.
- Using emojis as a communicative tool can have major legal significance. People often misperceive emojis as some second-tier form of communication with no legal implications of their usage. This case showed that a single emoji has substantial consequences–in this case, $82k (CAN). As usual, we are responsible for the words–and emojis–we choose.
- Emojis need to be interpreted in context. Emojis derive meaning from the content preceding them in a conversation, as do all other forms of human communication. Further, in this case, the parties’ course of dealing informed the emoji’s meaning. If the seller and buyer had never dealt with each other, the court might not have been as confident that the thumbs-up was assent and not just acknowledgment. But in the context of a pattern of similar dealings, it was more obvious that the emoji was assent.
- The fact that emojis have multiple meanings isn’t unusual. Many aspects of human communication develop multiple meanings, including slang. And that fact alone doesn’t mean that emojis are fatally ambiguous. Courts are very good at interpreting potentially ambiguous communications, whether that’s words, emojis, or anything else.
Allow me to add a few more wrinkles to this already juridically bizarre case.
First, as a busy professor, I have to sign my John Hancock to thousands of documents every year, especially at this season when students are applying to graduate school and for funding. Often the institutions will instruct me to type my full legal name in lieu of my signature, although a few will demand that I use my handwritten signature. Some of the latter will accept an electronic copy of my handwritten signature. Very fussy ones will insist that I write with pen and ink on paper and mail them the relevant document. I still well remember the days when we always had to use pen and ink on paper documents and mail them all over the world.
Second, many folks, especially certain prominent politicians, are in the habit of flashing thumbs-up gestures here and there. Can we hold them accountable for making the iconic sign that is the visual "etymon" for the thumbs-emoji that has just been certified by the Canadian courts?
Third, in some systems of governance, a seal evinces greater probity than a signature, witness Japan.
Fourth, in medieval times in China and in many other premodern societies, a physical thumbprint had legal validity in judicial proceedings.* It still does in Massachusetts and countless other governmental entities.
Last, "a man is as good as his word". In some communities, that watchword really matters. In them, if you make an oral promise and fail to keep it, you might pay with your life. (A gathering of elders might hold you to it.)
—
*In Tocharian B, there's even a word kapci, which means "thumbprint, as a mark of authentication", which is a loanword from Chinese huàzhǐ 畫指 , also in Japanese (kakushi).
Selected readings
- "Signature vs. seal" (10/1/12) — includes a must-read true story about a bank refusing a customer's signature because it was overly stylized
- "Sign everywhere" (3/11/13)
- "The semiotics of barbed wire fence" (6/22/24)
[Thanks to Kent McKeever]
J.W. Brewer said,
January 2, 2025 @ 7:01 pm
Saying that the emoji functioned as a "signature" is potentially confusing. Without delving into the entire said-to-be-lengthy judicial opinion, the key sentence excerpted in the blog post may be 'It was Mr. Achter who chose to use the thumbs up emoji, when in the past he had used words like “looks good”, “ok” and “yup” in a similar situation to form binding contracts.' In context, what I infer from this is that there is prior case law in Saskatchewan about contract formation via email that already holds that an email response from your account reading simply "ok" can be sufficient to bind you to the proposed contract and a more formal "signature" like "ok. Sincerely yours, Victor H. Mair" is not legally necessary. So the incremental step here is merely treating the thumbs-up emoji as the functional equivalent of "ok," not treating it as the functional equivalent of an explicit "Sincerely yours, Victor H. Mair." Of course, email software varies in whether or not it automatically appends a "signature block" when you send a reply.
(You could of course always claim that your email account had been hacked and someone else had sent the emoji response in your name, but in the ancien regime you could always claim that someone else had forged your purported literal fountain-pen signature on a contract document.)
Viseguy said,
January 2, 2025 @ 8:03 pm
No-brainer for the plaintiff, as per the facts as stated by the appellate court. I would say that the implications, far from "enormous", are quotidian for any reasonable businessperson operating in good faith on such facts.
Benjamin E. Orsatti said,
January 3, 2025 @ 9:22 am
J. W. Brewer said:
[BLOCKQUOTE][w]hat I infer from this is that there is prior case law in Saskatchewan about contract formation via email that already holds that an email response from your account reading simply "ok" can be sufficient to bind you to the proposed contract and a more formal "signature" like "ok. Sincerely yours, Victor H. Mair" is not legally necessary. So the incremental step here is merely treating the thumbs-up emoji as the functional equivalent of "ok," not treating it as the functional equivalent of an explicit "Sincerely yours, Victor H. Mair."[/BLOCKQUOTE}
I'd thought that too, before I looked at the opinion — that it was a finding of contract based on common-law offer, acceptance, and consideration; "acceptance" being shown by conduct that would either be reasonably be expected to constitute "acceptance" within the industry or by an objective observer, and so forth. But no, there's actually a statute that says that finger-squiggles, emojis, and whatnot are, actually, equivalent to a "signature". Although the statute was clearly meant to apply to forms filled out online, the judge squeezed in the emoji here:
"Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed […] by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter."
An emoji being, therefore, an "action in an electronic form" (much like, say a tiktok video of some 15-year-old doing the worm?), the clever judge wins the day.
Arguably, the statute need not even exist, since "communicating [I.E., IN ANY FORM] in a manner that is intended to express the offer, acceptance or other matter" would already bind one to a contract (presuming consideration) under common law.
Also, does anyone know if Canada follows the Restatements for non-sale-of-goods contracts?
Gregory Kusnick said,
January 3, 2025 @ 11:44 am
The defendant says the thumbs-up wasn't "intended to express […] acceptance". The court, however, apparently concluded that the emoji itself is sufficient evidence of such intention, which seems like circular reasoning to me.
Lars Skovlund said,
January 3, 2025 @ 3:41 pm
@Gregory Kusnick: The parties had closed contracts in this manner before without issue, says the opinion. Therefore, a reasonable observer would conclude that this was just happening again.
Gregory Kusnick said,
January 3, 2025 @ 5:18 pm
Lars: Not in this precise manner, as I understand it. They'd made deals by text before, but not by emoji; that's what makes this case noteworthy. So it seems reasonable to me to require some additional evidence that the defendant did in fact intend this novel element to be understood as a binding commitment on par with those prior acceptances.
Clearly the court's idea of what's reasonable differs from mine, and since they wear the robes, their view prevails.
J.W. Brewer said,
January 3, 2025 @ 6:02 pm
@Gregory Kusnick: I know this may sound shocking, but sometimes people do knowingly agree to deals but then later try to weasel out of them and falsely claim (including under oath) that whatever it was they said or did had not subjectively been intended to, for example, express acceptance. Leaving aside judicial cynicism about the sincerity of defendants making such a claim, the typical workaround is to for the courts to say that you are deemed to have "intended" for legal purposes what a reasonable person in context would have taken your words or actions to convey and if you had some idiosyncratic-but-sincere contrary private intention (that conveniently matches up with the position you are now taking in the lawsuit) that you can't prove was actually understood in that fashion by whoever you were dealing with, that's just too bad for you and you should have taken greater pains to be correctly understood by a normal person. At least in a situation like this. From a broader perspective, the law is probably sort of all over the place and somewhat inconsistent from one context to another about what to do if there's a potentially ambiguous communication and neither side at the time takes the initiative to clarify with a follow-up question. I.e., is the lack of clarity the plaintiff's problem (meaning it was the plaintiff who was in hindsight running a risk by failing to insist on greater clarity contemporaneously) or is it the defendant's problem (meaning the opposite).
I appreciate Benjamin Orsatti digging deeper into the particulars of the case, although I don't know if I really want to become all that better-informed on Saskatchewan law. I'm not sure if the statute in question is really a "signature" statute – which would make sense if but only this were a contract within the scope of Saskatchewan's Statute of Frauds or some similar rule. Rather, it sounds to me as if it's generally addressing contracts formed via online interaction and mouseclicks and whatnot that someone may have thought were in a weird gray area between "oral" and "written" and thus presented new challenges that older decisions and statutes didn't adequately address. Typically contracts that must be in writing to be enforceable must also be signed ("subscribed by the party to be charged" is a nice old-fashioned phrase that's still in the statute in New York and probably elsewhere) but this doesn't sound like that.
Andrew Usher said,
January 3, 2025 @ 7:46 pm
I can't see this case as creating any legal status for emoji. Rather it was affirming that emoji did not need a separate legal status and that existing principles were enough to make a decision about them. And my opinion, which should not be shocking, is that this is exactly what courts should do when faced with a novelty: if it can be fitted into some existing law or principle neatly, it should be; as judges should endeavor not to write new law when it's not needed.
In this case, there was an obvious pattern created by the seller's earlier messages, which were agreed to be acceptances. They simply followed that. Obviously there's a possibility of going wrong there, but no reason to think it was in this case, especially since the trial court had reached the same decision already.
As for the emoji being a 'signature', I'm not sure that someone wasn't confused. It's clear to me that the character can't by itself be a 'signature', and should not have been judged to be so. But it's also plausible that what we normally think of as a 'signature' shouldn't necessarily be required in an e-mail (when it would be on paper), as they are already similarly authenticated by software.
k_over_hbarc at yahoo.com
Gregory Kusnick said,
January 3, 2025 @ 9:20 pm
JW: Sure, people do sometimes try to renege on contracts, but the fact that these parties have a history of successful dealing ought to increase our credence that this was a good-faith misunderstanding. I guess it's just the defendant's bad luck that Saskatchewan law places all the responsibility for that misunderstanding on him.
Andrew Usher said,
January 3, 2025 @ 10:54 pm
You have provided no reason to think that any other jurisdiction would decide differently. There also may have been other evidence considered by the trial court indicating that the defendant was trying to get out of it rather than having made a honest mistake. I can't be certain he was, but surely you can't be absolutely certain he wasn't.
Having now read Benjamin's post carefully, it apparently did address 'signatures' – but when the law said "action in an electronic form" I parsed (action in an (electronic form)), that is "a form filled out on line", as he'd just said was the intent, and noted that didn't seem to apply. If so, making it (action in an (electronic) form [manner]) seems perverse, and that phrase a pretty awful ambiguity.
Gregory Kusnick said,
January 4, 2025 @ 12:14 am
I make no claims to certainty; my whole point is that I'm less certain than everyone else seems to be that the guy tried to renege. But again, it's not my call, so I'll leave it there.
J.W. Brewer said,
January 4, 2025 @ 2:06 pm
Without getting into how cynical to be about the particularly guy's motivations, let me note that you could have the exact same situation in the prior dealings where the parties apparently subsequently acted as if they were contractually bound based on an email or text simply saying "looks good" or "ok" or "yup." Mr. Achter could always have claimed in such an instance, and maybe sincerely, that he shouldn't actually be contractually bound because by "ok" he had not actually meant "ok I agree to your proposal" but instead something like "ok I understand your proposal and will consider it further." That would not obviously be a crazy defense, and whether it would or could be plausible enough to require a full trial would depend on knowing details of Saskatchewan law that I do not know. I am personally satisfied for the law to treat a thumbs-up emoji as being as good as an "ok" (neither better nor worse) in that sort of context.
Big picture I would say (based on my experience handling contract disputes in parts of North America some distance from Saskatchewan) that the law recognizes that in many business contexts people do make deals fairly informally and it would in many circumstances be unjust to let people get out of deals after the fact simply because they weren't fully documented with a level of formality not consistently followed in the relevant business or trade. But informal dealing can also often lead to ambiguity (although sometimes an elaborate and lengthy written and signed contract will end up creating ambiguities of its own as a side effect of its complexity …), which thus leads to the recurrent issue I noted above about who in a future dispute bears the risk of not having done as much as they could have done in hindsight to clarify any potential ambiguity before the dispute arose. From a linguistics/pragmatics perspective, note the difficulty of applying Gricean-type conventions to situations where people may on the one hand be trying to communicate "cooperatively" in the hope of a mutually-advantageous deal while also simultaneously retaining the option of future selfish/unilateral behavior should circumstances change.