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Emoji has legal standing in Canadian courts

Language Log 2025-01-02

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.)

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*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

[Thanks to Kent McKeever]