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A big thumbs-up for contract law! It’s the foundation of how businesses make money selling their wares. You might not always see it, but contract law is always there. In the background. Somewhere. It can be implicit, like going to Starbucks for your coffee: Starbucks offers it for sale, and you accept its offer when you place your order. And sometimes it’s more explicit and formal, like when two parties negotiate a contract at arm’s-length and the communications are more thoughtful and measured.
Well, at least they’re supposed to be. But who really has time in today’s fast-paced, distracted, ADHD-prone world?
Formality be damned! Why take the time to articulate your thoughts clearly in a negotiation when you can instantly send texts with your phone? But then why even exert yourself composing strings of letters to create those annoyingly obtuse words when you can just send….an emoji instead?
3,650,000,000,000 Emojis = A Few Real Problems
Communicating with emojis is as informal as it gets today. These little pictographs are fast, friendly, and emotionally expressive. It’s just one more digital age convenience at our fingertips. And nearly all of us use them. According to two studies (which are a few years old), 92% of us send at least 10 billion emojis daily. That’s three trillion, six hundred and fifty billion emojis sent a year—at a minimum.
So statistically speaking, somebody somewhere will find a way to get into real, non-virtual trouble using them. Because, well, it’s human nature. And that’s exactly what happened in Canada when a court ruled recently that a seller had to pay over $82,000 for flax crops after texting a thumbs-up emoji 👍to the buyer. It created a legally binding contract.
I know what you’re thinking: 
But as with all things legal, there’s more to this case than meets the eye. And even though it happened in Canada, emojis have appeared in U.S. cases too—our courts could easily rule the same way under comparable circumstances. Our contract law is quite similar to that of our northern neighbor.
O Canada! Oh, That Makes Sense
The Canadian buyer sued the seller for breach of contract when it failed to deliver the flax. The seller claimed that no contract had ever been formed, so it owed the buyer nothing. Both companies had transacted business together for many years based upon contracts like the one in dispute.
They had a brief text exchange after the buyer signed the agreement, who messaged: “Please confirm flax contract”. The seller then texted a thumbs-up emoji. The buyer testified he “understood this to be that [the seller] was agreeing to the contract and this was his way of signal[ing] that agreement.” The seller, however, countered the emoji “simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms….”
So did 👍signify acceptance of the contract or just its receipt? The court had to determine if there was a “meeting of the minds.” That is, whether the parties had intended to form a contract. “Meeting of the minds” is a generally adopted legal principle based upon a contract’s three standard elements: offer, consideration, and acceptance. Acceptance was the issue here.
The judge ruled that the emoji constituted acceptance and rejected the seller’s argument. He noted with similar contracts in the past, the seller had accepted by texting back succinct one- or two-word responses such as “looks good,” “ok,” or “yup.” He reasoned using the emoji was no different. As such, a contract had been formed:
“I am satisfied on the balance of probabilities that [the seller] 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 item – a meeting of the minds – just like they had done on numerous other occasions.”
I highlighted some language to show how carefully the court emphasized that it was not the emoji by itself which led to the ruling. It was also the history of the parties’ other transactions. This was critical. It’s called “course of dealing” in legalese, which means that how parties interacted in prior transactions establishes a common basis of understanding to interpret their other conduct.
Consequently, these earlier unrelated deals ultimately allowed the judge to objectively construe a very common and oh-so-casually-sent emoji as a formal acceptance. A contract therefore existed, the seller breached it, and the court awarded $82,000 in damages to the buyer as a result. Or to distill this case down to emoji-ese:
What’s Past is Prologue? Not Necessarily…
The clear implication from the ruling is had there not been any prior commercial transactions between them, the seller’s contention that no contract had been formed might have succeeded. Claiming the emoji only signified receipt is a reasonable argument to make when the parties are unfamiliar with each other and have no previous (or minimal) course of dealing to give its use important context.
Conversely, if they had a more complex history of protracted or contentious negotiations, or the seller’s terse “yup” and “ok” acceptances were more formal or conditional instead—or didn’t occur through his phone <gasp!>—a mere thumbs-up emoji would probably not be deemed assent either. But this doesn’t mean you should be lulled into a false sense of security.😴
An emoji by itself could still create a binding contract in the right situation if the parties either acknowledge what it means or can’t credibly dispute its meaning. The judge not only highlighted his own understanding of what a thumbs-up emoji signified, but cited a dictionary definition that it “is used to express assent, approval or encouragement in digital communications, especially in western cultures.” Thus, the buyer prevailed.
I Accept. How Rude. Up Yours!
The caveat about “western cultures” is important, particularly in diverse immigrant-rich societies like America and Canada. Emojis aren’t always universal and don’t convey the same meanings to everyone. For example, in certain Middle Eastern and West African countries, a thumbs-up means….wait for it: “Up yours.” That won’t exactly establish assent to a contract if the other party happens to be from Iraq—and you may have just scuttled the deal instead. 
D’oh!
Meanings also change over time, especially given the accelerating impact of technology today. (When’s the last time you ate some real Spam?) Many Gen-Zers now interpret a thumbs-up emoji to be “rude,” “hostile,” and “passive-aggressive.” Some claim it can even be a coded “F**k You.” So, if you’re in your fifties doing business with someone in their twenties, it’s yet one more thing to be aware of when interacting over your phone. For Gen-Xers like me—and I’ve been in technology law for nearly thirty years—it’s exhausting at times to keep up with all these changes. 
Up is down, black is white, and this👍 could really mean this🖕. Oy!
Emoji Nation, For Better or Worse
Finally, the Canadian case isn’t too surprising. Emojis—and their early cousins, emoticons :o) —have been creating legal issues here for a while. For example, in a 2014 defamation case, a Michigan court held that an online comment implicating someone in a theft could not be defamatory because it included a “:P” emoticon, which made it “patently clear” that it was a joke and wouldn’t be “taken seriously as asserting a fact.” In 2015, the police charged a Virginia middle-school student with making threats after posting gun, knife, and bomb emojis. In a 2017 Massachusetts criminal case, evidence against the defendant included an emoji face with crossed-out eyes, 
, which he texted after killing his girlfriend. And in the last few years, numerous courts have addressed sexual harassment claims and employees sending emojis to their co-workers, such as peaches, eggplants, winking faces, tongues, hearts, dripping water, etc. (Remember when peaches and eggplants were just fruits and vegetables? That’s sooo 20th century. 
And another instance of meanings changing over time.) These issues will continue to evolve as courts confront them.
An Ounce of Prevention…
One thing is clear though: Emojis are here to stay for a while. Using them apparently makes us “cooler, friendlier, and funnier” than those who don’t. And in today’s viral media culture, who can risk being branded as pictographically unhip? But for now, “Use Your Words” is a great guiding principle when conducting business over your phone. The lesson from the Canadian case is a simple one: Exercise some caution when texting, whether it’s an emoji or not, and especially in a commercial context. You never know in today’s hectic world when it can come back and bite you on the 
. Wait…is that a donkey? A pony? A sad unicorn? Let’s just ask the judge.
