Should Saskatchewan court ruling make you think twice before sending thumbs-up emoji?

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If you’re going to send an emoji, it might be wise to consider whether its application and interpretation could have larger consequences

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Can u get bread while u r at the store?

” 👍 ”

Thx for the heads up.

” 👍 “

C u there?

” 👍 “

In today’s digital world, so much communication takes place via electronic, text-based messaging. Small, illustrative symbols known as “emojis” have found a place within these day-to-day communications, often as a simple shortcut to save time or perhaps to amuse the recipient.

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In many cases, if one of these symbols is used in a way that is misunderstood, the consequences are likely to be minor.

In other cases, the repercussions could be severe.

Consider this real-life situation: A man working for a company that buys grain sends a photo of a draft contract to a farmer. It indicates the farmer will sell the company 87 metric tonnes of flax at a set price per bushel, to be delivered in a set month.

“Please confirm flax contract,” says a text sent by the company man, along with a photo of the contract’s front page indicating the aforementioned details.

“👍,” the farmer responds by text.

Did the farmer’s emoji lock him into a binding contract?

Well, this exact scenario is at the centre of a court case that’s been churning its way through Saskatchewan’s courts for over a year.

A judge (referred to in this story as the “chambers judge”) decided in June 2023 that, yes, Chris Achter of Achter Land & Cattle Ltd. (ALC) had indeed accepted and signed a contract sent to him by Kent Mickleborough — an employee of South West Terminal Ltd. (SWT) — through his use of the thumbs-up emoji.

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However, the flax was not delivered. ALC’s crop failed and it “did not harvest a single bushel of flax,” according to Achter.

Flax.
A flax field north of Regina. Photo by Bryan Schlosser /Regina Leader-Post

The chambers judge awarded damages of $82,200.21 plus interest to SWT, as well as legal costs.

Was the judge right about the farmer entering into a contract? ALC didn’t think so and appealed the decision in front of three judges at Saskatchewan’s highest court. Rendering a split decision on Dec. 16, 2024, two of them dismissed ALC’s appeal while a third would’ve allowed it.

What does the decision mean for the law? And what could it mean for the average person who uses emojis to communicate, aside from the possibility of creating a simple misunderstanding between friends?

Three law professors put the decision into perspective during recent interviews with the Regina Leader-Post.

How it impacts the law

Michael Ilg, an associate professor at the University of Calgary’s (U of C) faculty of law, said the contract between the farmer and grain buyer needed three elements. First, it had to be agreed upon. Then, it needed to be in written form and, finally, it had to be signed.

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Ilg said it’s that last part where the case broke some new ground.

The chambers judge — supported in the Court of Appeal by Chief Justice Robert Leurer and Justice Neal Caldwell — decided “that one little emoji did all three things,” Ilg said.

“As it stands, I think the sort of noteworthy part of this decision is that any non-verbal communication — so that’s electronic communication, emojis — could constitute acting as someone’s signature.”

However, the signature issue is where the third appeal court judge broke ranks and offered a dissenting opinion. Justice Brian Barrington-Foote wrote he would find that the texts between the two men “did not comply with the signature requirement imposed” based on a provincial law known as The Sale of Goods Act.

Jassmine Girgis, who’s also an associate professor at the U of C’s faculty of law, says she doesn’t feel that less formality will be required in contract law as a result of the case.

“But I do think that the types of formalities required are changing,” said Girgis, who spoke of interpreting the intentions involved in forming a contract.

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“The legal test is, what would a reasonable person think in these circumstances?”

A “reasonable person,” she continued, would be appropriately informed of societal norms.

“And this person, therefore, would know there’s been widespread use of reliance on technology, which includes text messaging and, with it, emojis.”

cell phone.
Young woman using cell phone to send text message on social network. Getty Images

What it means for you

Interpreting the use of emojis in digital communications is not new for courts, according to Girgis.

The professor cited an example in which a family law court interpreted a man’s use of what Girgis termed the “laughing, crying emoji” to mean he was mocking and dismissing his wife when she made an allegation of duress.

“People are really worried about this,” she acknowledged when asked whether the Achter case could be applied to other areas of law, such as the question of consent in a sexual assault case.

Referencing the aforementioned family law case, she said it’s important to know the court considered all communications between the parties when coming to a decision about the meaning behind the emoji.

The same happened in the Achter case — while contemplating the implication of the emoji, the court looked at the parties’ dealings with each other before and after the texts at issue.

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“If you’re getting to a point where there’s an allegation of sexual assault or there’s an allegation of duress, there’s more to it than just the emoji,” Girgis said. “There’s what occurred between the parties in other contexts as well — how they got there, what happened when they got there. So consideration of the emoji is a small part in a bigger context.”

The scales of justice in an empty courtroom.
The scales of justice in an empty courtroom. Getty Images

A word of warning

Chidi Oguamanam, a faculty of law professor at the University of Ottawa, agrees that context is key in court cases involving the use of emojis.

“They are like body languages,” he said. “One person sends it to the other and it cannot be interpreted out of the context in which they were sent.”

Oguamanam also wanted to be clear in stating that emojis have cultural, geographic and demographic contexts.

“When people under the age of 25 use emojis, and the way they are interpreted, is different from people above 40 years old,” he said, noting that an emoji used within a particular “social cultural group” might differ in meaning from the same emoji used within another group.

Also, because software can differ between a device used to send an emoji and the device receiving it, the emoji itself can look different between the devices. Oguamanam said the subtleties and nuances of software can play a critical role in interpretation.

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For example, Oguamanam raised the question about how to interpret a pistol emoji.

“Is that a toy gun?” he asked.

Or is the implication more serious?

“You have to look at it closely.”

Again, he stressed the importance of context.

What’s next

Harvest.
A combine harvests a field outside Regina on August 12, 2024. Photo by KAYLE NEIS /Regina Leader-Post

Ilg says it’s possible the case could end up at the Supreme Court of Canada (SCC). However, if Achter was to pursue a further appeal, Canada’s highest court may or may not decide to hear the case.

The Leader-Post contacted the lawyer representing Achter at the Saskatchewan Court of Appeal, asking whether it was his client’s intention to pursue an SCC appeal, but no response was offered.

Oguamanam says he would be excited by the prospect, particularly because of his interest in how Canada’s highest court would view the dissenting opinion of Barrington-Foote in the Saskatchewan appeal decision.

Even if the case doesn’t land in the SCC, his comments hinted that the judge’s position could have an effect on the law in the future.

While Oguamanam said Barrington-Foote acknowledged the need to “make the leap” to the digital world, the professor believes the judge is also suggesting that politicians who make laws should “do a little bit more to make sure that we do not throw away the sanctity of signed documents in the altar of technological expediency.”

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