Let’s face it … technology can be hard. Especially when you have no idea what things mean. Remember when Gen Z unofficially deemed millennial use of the 😂 emoji as “not cool,”[1] or dare I say…cheugy?[2] Or when almost every older-generation dad got called out for their unintended passive aggressive overuse of the 👍🏻 emoji?[3] Who knew that using these emojis meant committing such a social faux pas?
However, even though most dads are probably just sending the 👍🏻 emoji in response to some video their kid sent in the family-group chat, maybe it is time they—and everyone else for that matter—start paying closer attention to the contents of texts and emails emojis are used in to avoid finding oneself in the middle of an unintended legal battle. That’s right … emojis now carry legal weight. Which means the 👍🏻 emoji could potentially result in a legally binding contract between two parties.
Recently, a Canadian lawsuit made headlines when a court ruled that a farmer owed $82,000 CAD, plus interests and costs for failing to deliver flax per a text agreement that ultimately was ruled approved due to the farmer’s use of the 👍🏻 emoji.[4] After reviewing all background and conversations leading up to the use of the emoji, as well as the two parties’ history of coming to agreements over text, the court held that “the parties had reached consensus … just like they had done on numerous other occasions.”[5]
Over here on this side of the border, American courts and litigators are beginning to consider the same issues. Lightstone RE LLC v. Zinntex LLC presented a court in Kings County, N.Y., the question of whether a 👍🏻 emoji constituted “a signature of executory accord that would both act as an acceptance and satisfy the statute of frauds” on a contract for payment of protective masks arranged via text messaging.[6] While the court found that this issue was not appropriate on a motion for summary judgment, since the parties agreed that the defendant owed the plaintiff the money sought, the court granted the plaintiff $1 million dollars.[7] Despite the emoji question not being explicitly answered in the case’s holding, the case did highlight some of the common issues that courts will be presented with when analyzing these situations.
Mutual assent and intention
A major consideration when deciding a contractual dispute is whether there was a “meeting of the minds.” This refers to the mutual assent by all parties to the formation of a contract, whereby all parties must agree to the same terms, conditions, and subject matter of an agreement.[8] However, it should be noted that modern contract doctrines sometimes only require objective manifestations of assent.[9]
Interpreting the meaning and intent behind an emoji, and whether it constitutes an acceptance of an agreement would force courts to perform a factual analysis of various factors. This can be tricky since emojis can have metaphorical meanings that are unique to specific groups of people depending on their culture, geographical location, and community.[10]
For example, some cultures view the 👍🏻 emoji as rude or obscene (or a personal attack—as some in Gen Z may say[11]), and would not consider its use to manifest assent. Different online communities can assign “covert meanings” to different emojis or have their own code.[12] This leads to the possibility of significant misinterpretation on what certain emojis mean or what they convey. A survey revealed that Apple’s “Unamused Face” 😒 signaled “disappointment,” “depressing,” “unimpressed,” or “suspicious” emotions.[13] The same survey indicated that the public disagree on whether many emojis indicate positive or negative emotions.[14] If an in-context emoji is capable of having multiple reasonable meanings, senders may be protected from having knowledge of what they were “agreeing” to, and thus may be able to avoid contractual liability.[15]
Variations in platforms and digital coding also could contribute to cross-platform misunderstandings,[16] as there is no standardization and each platform and set of emojis is designed differently. For example, in 2016 Apple changed the “pistol” emoji to a “water pistol” emoji, yet an Apple user still could possibly send a “water pistol” emoji to a different platform, and it may appear as a regular “pistol” emoji, thus manifesting an intent entirely different than that which the sender intended.[17] The same emoji may vary in size, color, shape, and level of detail displayed depending on whether it is viewed on a computer or phone, or if you are using an Android or an Apple device.[18]
Reliance
As part of their analysis, courts most likely will consider whether there was reliance by a party—especially when determining damages. Reliance is the legal concept whereby one party depends upon another’s statements or actions, especially when that party acts upon that dependence.[19] A party may be liable for damages if another party reasonably relied on their statements or actions to their detriment, otherwise known as promissory estoppel.[20]
Just as using an emoji may indicate contract formation, using an emoji in text or email conversation may also induce or contribute to such reliance—therefore establishing the basis of a claim for promissory estoppel. A court likely will consider whether parties reasonably relied on an emoji to their detriment when determining contractual liability.
Statute of frauds
Another important consideration is whether the contract in question falls under and satisfies the statute of frauds. Under the statute of frauds, certain contracts need to be in writing to be considered valid, and many have questioned whether a text or email containing an emoji satisfies the statute’s requirements—especially that of signature.[21] Internet guru Professor Eric Goldman has stated that emojis can satisfy the statute of frauds, believing that these communications are governed by the Uniform Electronic Transactions Act and E-sign rules.[22] Under the UETA, “an electronic signature can be any electronic sound, symbol, or process that is both attached to or associated with a record or contract and executed or adopted with the intent to sign the record.”[23] The Uniform Commercial Code also supports this position, with the definition of “signed” including “using any symbol executed or adopted with present intention to adopt or accept a writing.”[24]
While not an emoji, the Supreme Court of Mississippi has held that the automatic “Sent from my iPhone” line on the bottom of emails sent from Apple iPhones “’may satisfy a trier of fact that the user had the requisite intent to adopt the closing as his or her signature for mobile emails.”[25] Then, some would argue that an emoji—which is added affirmatively to a conversation by a sender as opposed to being automatically added to every message—is an even greater claim to signature status and thus satisfies statute of frauds requirements.[26]
The future of emojis in contract law
Does this mean that courts will now be spending time and resources trying to decipher what an emoji means? Yes, most likely.
With the popularity of not only emoji use, but also text and email as a means of business communication, this topic was bound to find itself in the court system. Once wordless communications are entered into a court record, the courts must look at all surrounding circumstances of the emoji in conversation to interpret meaning.[27]
The analysis will include scrutiny of all accompanying messages and whether the use of the emoji “materially alters” the intended meaning of the text sent by the sender.[28] There are many factors analyzed in situations such as these, including how the messages were received by the recipients, and a senders’ alleged intent behind their messages, as well as other factors such as the ones mentioned above. Emojis are not a universal language, and courts now will be tasked with deciphering meaning amongst “language” that can be interpreted differently to people of various cultures, countries, age groups, and users of different platforms.
In the meantime, if you want to protect yourself, don’t assume that the casual nature of emojis in digital communications hold no contractual significance. Moving forward, education on the legal significance of emojis will be critical, as will be modifying new and existing contractual language to avoid liability of informal communication bearing any weight on the meaning of contracts.[29]
Time for dads to get a new emoji.
[1] Kaya Yurieff. Sorry millennials, The 😂 emoji isn’t cool anymore. CNN Business, Feb. 15, 2021.
[2] Taylor Lorenz. What Is ‘Cheugy’? You Know It When You See It. The New York Times, May 3, 2021.
[3] Gina Tonic. Why Do Dads Communicate Exclusively via Thumbs Up Emojis? Vice, Aug. 25, 2022.
[4] Jennifer Henderson, Farmer Owes $82,000 in contract dispute over use of a ‘thumbs-up’ emoji, judge says. CNN Business, July 7, 2023.
[5] Ibid.
[6] Lightstone RE LLC v. Zinntex LLC, 2022 N.Y. Slip Op. 32931(U) (Kings Cty. 2022).
[7] Ibid.
[8] Meeting of the Minds. Legal Information Institute: Cornell Law School (last visited Sept. 19, 2023).
[9] Ibid.
[10] Olga V. Mack. Emojis and Visual Literacy: A Guide for Lawyers. Bloomberg Law, June 21, 2021.
[11] Jack Hobbs and Alex Mitchell. Gen Z canceled the ‘hostile’ thumbs-up emoji and wants to ban these 9 others. New York Post, Oct. 14, 2022.
[12] Mack, supra note 10.
[13] Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227, 1250 (2018).
[14] Ibid. at 1264.
[15] Ibid.
[16] Ibid. at 1270.
[17] Heather King. Emojis and Emoticons: How Courts and Litigators are Dealing with Interpretation of Digital Wordless Communications. American Bar Association, Jan. 01, 2022.
[18] Mack, supra note 10.
[19] Reliance. Legal Information Institute: Cornell Law School (last visited Sept. 19, 2023).
[20] Ibid.
[21] Timothy Murray, Contracting by Emoji. LexisNexis Practical Guidance Journal, April 28, 2023.
[22] Ibid.
[23] Ibid.
[24] U.C.C. § 1-201(b)(37).
[25] Murray, supra note 21.
[26] Ibid.
[27] King, supra note 17.
[28] Ibid.
[29] Murray, supra note 21.
Danielle Caswell, Esq.
Danielle Caswell joined PIA Northeast as associate counsel in the Government & Industry Affairs Department in 2023. She earned her bachelor’s degree from New York University and her law degree from Brooklyn Law School with a particular focus on intellectual property, information, and media law. Prior to joining PIA, Danielle was an associate at a law firm in New York City where she focused primarily on intellectual property and entertainment-related transactional and litigation matters.
