Emojis have transformed modern communication. From casual conversations to social media posts and even professional communications, these symbols now play a significant role in digital communications. Consequently, Courts in various jurisdictions have had to decipher emojis within legal contexts, thereby redefining the boundaries of linguistic interpretation.
Emojis and the Formation of Contracts
The formation of contracts has evolved in this age of technology. The Saskatchewan Court of King's Bench in Canada recently found that a thumbs-up emoji sent in a text message constituted valid acceptance of a contract, resulting in a finding that there was a contract between the parties (see South West Terminal Ltd. v. Achter Land & Cattle Ltd. [2023] S.J. No. 215).
In this case, the plaintiff and defendant had previously entered several supply contracts for durum. On the occasion in question, the plaintiff’s representative called and discussed with the defendant’s representative a potential contract for the supply of flax. The plaintiff’s representative informed the defendant’s representative that he would write up the contract and send it to defendant’s representative by text message, asking him to confirm the contract via text message. When the plaintiff’s representative sent the photograph of the signed contract to the defendant’s representative and asked him to confirm the contract, the defendant’s representative texted back a thumbs-up emoji.
While the plaintiff’s representative understood this to be the defendant’s agreement to the contract, the defendant’s representative conversely stated that the emoji only confirmed that he received the contract and not that he had agreed to the terms of the contract.
It is pertinent to note that, prior to this, there was a pattern of entering, what both parties knew and accepted to be, valid and binding deferred delivery purchase contracts for durum. On these previous occasions, the plaintiff’s representative would send a photograph of a signed contract to the defendant’s representative, asking the defendant’s representative to confirm the terms of the contract. The defendant’s representative would then reply by texting, for example, “looks good”, “ok”, or “yup”.
As such, the Court found that, amongst others, the instant situation was similar to the previous contracts. Instead of using words such as “ok”, “yup” or “looks good” as he did before, the defendant’s representative texted a thumbs-up emoji. The Court also found that, during the telephone call between the two representatives, a deal appeared to have been at least verbally struck, which was followed up by the photograph of the contract that was confirmed by the defendant’s representative in his text message.
Ultimately, the Court found, after considering all the circumstances, that the thumbs-up emoji meant approval of the flax contract and not simply that the defendant’s representative received the contract and was going to think about it. In the Court’s 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.”
Therefore, it appears that the pattern of how the parties entered contracts previously was a significant consideration that led to the finding that the thumbs-up emoji signified acceptance of the contract.
Emojis and Securities Fraud
In the United States of America, the District Court for the District of Columbia recently ruled that a tweet with a “moon” emoji (🌝), in the given situation, could potentially constitute securities fraud. In Re Bed Bath & Beyond Corporation Securities Litigation (Case No. 1:22-cv-2541 (TNM)), one of the defendants, Ryan Cohen, is referred to as a “meme stock investor”. Meme stock investors often gather on social media platforms such as Twitter and Reddit, frequently using memes and emojis to discuss their trades.
Cohen held a minority interest in the company Bed Bath and Beyond (“BBB”). With the inside knowledge that BBB was, amongst others, firing 20% of its workforce and closing 150 stores, Cohen was alleged to have hyped up the stock to drive up its price with, amongst others, the following tweet (which was in response to a tweet by CNBC with a negative story about BBB, accompanied by a picture of a woman pushing a shopping cart):
After the price of the BBB stocks went up, Cohen sold his entire stake in BBB, profiting US$68 million. Once it became known that Cohen had sold his stake in BBB, the value of the stock plummeted, and many investors lost money. One of the investors sued Cohen, his company, BBB, and BBB’s CEO for all violating various securities laws.
In a decision on the defendants’ motions to dismiss (which is a motion filed when a party believes that the complaint is legally incompetent), the Court had to consider if the plaintiff presented “a claim to relief that is plausible on its face”.
In respect of Cohen’s tweet, the Court found that it was plausible that Cohen’s tweet was telling his audience that the value of the BBB stock was going up (i.e., “to the moon” or “take it to the moon”, which was found to be associated with the moon emoji in meme stock subculture) and that they should buy or hold the stocks, which they did. Thus, the claim against Cohen for his tweet survived the motion to dismiss.
In response to Cohen’s contention that emojis can never be actionable because they have no defined meaning and that there is no way to establish the truth of a “tiny lunar cartoon”, the Court observed that “Emojis may be actionable if they communicate an idea that would otherwise be actionable. A fraudster may not escape liability simply because he used an emoji. Just like with words, liability will turn on the emoji’s particular meaning in context.”
As such, the context of the situation, particularly what the audience of “meme stock investors” deciphered from Cohen’s tweet, played heavily in this decision.
The Court’s Tools for Deciphering Emojis
In Australia, the Courts have also in various cases been called upon to interpret the meaning of emojis. In Burrows v. Houda BC202040745, which involved a claim for defamation for the publication of two posts on Twitter, the District Court of New South Wales found that expert evidence was not necessary to interpret the relevant emojis. The Court instead consulted internet dictionaries to interpret emojis, commenting that, “the nature of modern communications makes consultation of internet dictionaries, such as Emojipedia, a necessary step for the trier of fact who seeks to determine what the ordinary reasonable Twitter reader would make of the use of these symbols.”
Malaysian Courts and Emojis
In Malaysia, while the legal jurisprudence on emojis is comparatively limited, the Courts have also been seen deciphering the meaning of emojis in several cases. For instance, in Tan Mei Yean v. Gooi Soo Hwa [2021] MLJU 2548, which was a claim for defamation in respect of a Facebook post, the Court in deciding an application to strike out, considered the meaning of the post which included considering the innuendos alleged to be conveyed by the emojis used.
Also, in CC Land Resources Sdn Bhd & Anor v. Geo Win Sdn Bhd [2023] MLJU 1394, the Court, in interpreting the parties’ conduct and communications, accepted a witness’ evidence that the emoji sent in a WhatsApp message was just to indicate that he had taken note of the request and he still requires approvals from his other partners for the project, and did not amount to an unequivocal admission to transfer a chosen unit to one of the plaintiffs.
With communications becoming almost completely digital and social media platforms becoming arguably indispensable, it is likely that more cases of this nature will be seen in our Courts.
Conclusion
As technology changes how we communicate, the Courts are also adapting to the digital language of emojis. In view of the above, it is evident that the surrounding context of the communications, as well as what a reasonable or ordinary person would take the emojis to mean in that situation, ought to be primary considerations when Courts interpret emojis.
With emojis being used widely in all forms of public, private, and business communications, the development of the law on this issue is one to watch out for. As a result, it remains crucial to be cautious in sending or posting content on social media or via any form of communication, whether with emojis or not.
*Written by Priscilla Faith Lim
For any related enquiries, please contact our Partner, David Mathew (davidmathew@stsp.my) or Associate, Priscilla Faith Lim (priscillalim@stsp.my)
The content of this article is of a general nature and does not constitute legal or other advice or the provision of legal or other professional services, and shall not be relied upon as such
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