Downside of using thumbs up emoji for business

As winter turns to spring, the trees bud, flowers bloom and new emojis appear. There are now 3,790 officially recognized emojis, which include facial expressions, hand gestures, symbols, flags, flowers and animals. According to Emojipedia, 21.54% of all global tweets included an emoji.

Not all emojis are created equal, however. Worldwide, emoji usage in the last few years has been dominated by a top ten list -- the top emoji was the "loudly crying face," ironically followed by "face with tears of joy." Most people would recognize the top ten emojis, but it's not at all clear whether they would interpret them in the same way.

There is no dictionary definition or grammatical rules for interpreting emojis, and emojis display differently based on the device, software and operating system, so an emoji may look different to the recipient than the sender intended. In addition, some emojis have copyright or trademark protection, so platforms that have not licensed the emoji create similar but not identical emojis. In short, emojis are completely unreliable evidence, but their widespread use, even in fairly formal business contexts, has forced courts to grapple with the admissibility and evidentiary value, if any, of emojis.

Courts have traditionally relied on non-verbal evidence such as photos and maps and have used depictions such as gang symbols to determine intent or motive. But these tended to be one-time discrete uses of non-verbal evidence. Given the increasingly widespread use of emojis (and their simpler emoticon cousins created only with keyboard strokes), these non-verbal symbols are playing an increasingly important role in court cases.

California courts have interpreted the meaning of the "winky" emoticon. In Lenz v. Universal Music Corp., the court interpreted the meaning of the "winky" emoticon in the description of the plaintiff's alleged injury. Case No. C 07-3783 JF, 2010 U.S. Dist. LEXIS 16899, at 12-15 (N.D. Cal. Feb. 25, 2010). The California Court of Appeals interpreted the laughing emoji in a text message In re L.F., A142296, 2015 WL 3500616, at 21 n.2 (Cal. Ct. App. June 3, 2015).

Courts have also considered whether an emoticon or emoji can create a mixed message, or change the meaning of text. A Montana court, for example, held that a smiley emoticon rendered text into a joke, and thereby reversed the meaning of the text. The statement at issue was an email from defense counsel to the prosecutor offering to "stipulate that my client is guilty. :)" The court held that "[n]o one took Neuhardt's frivolous e-mail as an actual stipulation." United States v. Christensen, No. CR 06-085 BLG-RFC, 2013 U.S. Dist. LEXIS 52464, at 5 (D. Mont. Apr. 11, 2013).

Emojis may be moving from adding color to messages to a more substantive role, however. A Saskatchewan Court of the King's Bench granted summary judgment in favor of the plaintiff, finding that an emoji can express acceptance of a contract. South West Terminal Ltd. V Achter Land and Cattle Lt., Case No. QBG-SC-00046-2022 (June 8, 2023).

The case involved an offer from Achter Land and Cattle to sell several tons of flax to South West Terminal. Achter's representative discussed the contract via text and a phone call, then he drafted and signed a written contract, took a photo, and texted it to the buyer with the message "Please confirm flax contract." The buyer responded with a thumbs-up emoji. When Achter did not deliver the flax, South West Terminal sued for breach of contract.

 The court awarded the South West Terminal $82,200.21 in damages and costs, ruling that the parties had entered into a binding contract. The court noted that the parties had a history of communicating acceptance of contracts through text messages using language such as "looks good," "ok" or "yup" for years.

The Court concluded that the thumbs-up emoji met the signature requirements of acceptance, relying on a Dictionary.com entry stating that the thumbs-up emoji is generally thought to mean approval or acceptance. It is worth noting that the court found that the thumbs-up emoji was similar in nature to the "curt" text messages previously used by the parties to establish a contractual agreement.

The thumbs-up emoji has intermittently appeared on the top ten emoji list, indicating widespread usage and probably a common understanding of its meaning as one of approval. But relying on more obscure emojis would be much more troubling since there may be multiple meanings or slang usage.

There are fledgling efforts to provide standard meanings for emojis. The Unicode Consortium, a standards body for the internationalization of software and services, works to ensure that language characters are uniformly supported across multiple electronic devices. Unicode's work includes standardization efforts for emojis including technical display characteristics and brief descriptions of meaning for emojis. Unicode officially states, however, that it does not attempt to identify all the possible meanings of an emoji and it doesn't address slang usage at all.

Emojipedia provides a more complete definition for emojis, including some slang usage, and it notes that some emojis have inconsistent meanings. Dictionary.com recently started publishing definitions and explanations of emojis, but covers only a handful of them.

In some ways, the Achter case is less about the use of an emoji and more about the dubious practice of relying on truncated and informal messages in situations that could lead to legal liability. If people are unable to tear themselves away from the convenience of text messaging, they should include a brief textual note indicating their intent, or at least wait until there is a uniformly accepted definition, even for seemingly obvious emojis.