In a recent Canadian court decision, the court found that the use of a universal symbol can affirm that a person is officially entering into a contract. In this instance the party confirmed his willingness to be bound to an agreement with the use of the “Thumbs-up” emoji.
This judgement was delivered by the Court in Saskatchewan, which heard the case involving a grain buyer and a farmer. The grain buyer broadcasted a text message in March 2021, expressing his interest in acquiring 86 tons of flax at a certain price. There was various telephonic conversation between the farmer and the buyer, and the buyer sent him an image of the contract. In terms of the contract the delivery of the flax was scheduled for November of that year. The buyer asked the farmer to “please confirm flax contract” in the text. The farmer responded with a thumbs-up emoji, however he failed to deliver the flax by November of that year. By that time, prices for the crop had increased.
The court stated that the use of emojis is a new reality and that persons use various emojis to express themselves. The court referred to the dictionary definition of the “Thumbs-up” emoji and found that it is used to express assent, approval, or encouragement.
In South Africa, there has been no case law dealing specifically with the use of emojis to affirm or consent to be bound to an agreement. Emojis are not openly defined under South African Law.
To ascertain the binding nature of the use of emojis in the law of contract in South Africa, one must refer to the Electronic Communications and Transactions Act (25 of 2002) (ECTA).
In terms of the ECTA an emoji constitutes “data”, being electronic representations of information in any form, and “data message” being data generated, sent, received, or stored by electronic means.
Section 22 (1) provides that an agreement is not without legal force and effect merely because it was an agreement concluded between parties by means of data messages.
Section 24 provides that a data message as an expression of intent or other statement is not without legal force and effect merely on the grounds that it is in the form of a data message or is not evidenced by an electronic signature, but by other means from which such person’s intent or other statement can be inferred.
As highlighted above the position around emojis as means of expression of intent has not been considered by South African courts but based on the stipulations of the ECTA and the obligation on courts to apply international law to their judgments it is likely that South African courts will follow suit when the need arises.
By Koos Benadie | Director of Corporate & Commercial Law
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