The use of ’emojis’ has become common with the increased use of smartphones, smart tablets, and social media platforms. As a result, emojis have become part and parcel of the way a lot of people communicate online, either replacing words in communication or simply enhancing the written words used.

WHAT EXACTLY ARE EMOJIS ❓

An emoji (from Japanese, meaning ‘picture character’) is a small digital image or icon used to show an idea or emotion in electronic communication. This can be in text messages, on social media, or other digital communications. Emojis help convey tone, emotion, or meaning that might not be clear from text alone. They include facial expressions, common objects, places, symbols, and gestures.

Despite their animated, sometimes funny and sometimes cute appearance; could emojis be used and interpreted to create legal obligations or attract legal consequences?

DEFAMATION 🤬

Words are considered defamatory if they imply something about a person that damages their reputation among reasonable community members, or if they cause the person to be ridiculed, shunned, or disliked by the general public.

To be liable for the publication of defamatory material, one of the conditions is that the publication must convey a defamatory meaning to its recipients by any means. This meaning must reach someone capable of understanding its content, regardless of whether they interpreted it as defamatory. If there is no proof that any recipient comprehended the publication, then there has been no communication of a defamatory meaning and, therefore, no publication.

In Burrows v Houda [2020], Zali Burrows, an Australian solicitor, sued Adam Houda, another Australian solicitor, for defamation over tweets that criticized her legal conduct.

The Sydney Morning Herald published an article about a judge criticizing the plaintiff’s behaviour in a legal case, and suggesting it be reported to the Law Society for possible disciplinary action.

Houda was sued by Burrows in respect of two Twitter (as it was then called) posts made regarding links to the Herald article on 27 May 2020 and 28 July 2019.

One third party replied to a tweet with the following ʹJuly 2019 story. But what has happened to her since? ʹ. In one tweet after this, Houda tweeted a ‘zipper-mouth face’ emoji in response.

Burrows claimed the tweets, including the ‘zipper-mouth face’ emoji defamed her, as they carried the imputation that she had faced professional disciplinary action, had been recommended for a life ban by ASIC, and/or had engaged in criminal conduct. An application was heard to determine if the emojis were capable of conveying the alleged meanings – not whether they actually did so, or were defamatory.

Gibson DCJ considered whether a Judge could interpret the meaning of an emoji without expert evidence or jury input. Her Honour decided expert testimony was unnecessary because neither party suggested it, and Australia already had precedents for interpreting emojis and non-verbal symbols in legal contexts without needing experts.

Her Honour then examined the meaning an average and reasonable Twitter user would attribute to the emoji. As part of this, she referred to an online dictionary called Emojipedia. She came to the conclusion that “ʹzipper-mouth faceʹ emoji has a meaning to denote ʹa secretʹ or ʹstop talkingʹ, in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer”.

The court determined that the defendant’s ‘tweets’, when considered in context, could be understood to imply that the Burrows was undergoing disciplinary action by a professional body, and could therefore convey the imputations alleged.

CONTRACT 🤝

A contract is a legally binding agreement between people who promise to do something for each other. For a contract to be legally binding, it needs:

• An offer: One party proposes an agreement.
• Consideration: Something of value is exchanged.
• Acceptance: The other party agrees to the terms of the offer.

These elements usually involve some form of communication between the parties.

Australian courts haven’t yet decided whether an emoji can show acceptance (or an offer for that matter) of a contract. However, the recent Canadian case South West Terminal Ltd. v Achter Land 2023 provides a possible insight.

South West Terminal (SWT), a grain and crop inputs company, had a history of making offers to Achter, a farming business owned by Mr. Chris Achter. These offers were typically accepted by Achter, as evidenced by various methods, including the delivery of goods.

In March 2021, SWT drafted a contract to purchase flax at $17 per bushel, signed it, and sent a photo of the contract to Mr. Achter, along with the request, “Please confirm flax contract.” Achter responded with a “thumbs-up” emoji.

However, Achter did not deliver the flax, and by November 2021, flax was trading at $41 per bushel. SWT sued for breach of contract, seeking $82,200.21 plus interest and costs. SWT argued that the emoji indicated acceptance of the terms. Achter claimed he used the emoji only to acknowledge receipt of the contract.

Justice Keene, in the King’s Bench Division for Saskatchewan, considered what an informed bystander would understand the thumbs-up emoji to mean. He referred to the dictionary definition, which indicates it expresses agreement or approval, and examined evidence from a Google search bar suggesting it means “I approve.”

Justice Keene also took into account the history of dealings between the parties, where similar confirmations were followed by the delivery of goods. Given these facts, the judge concluded that the parties had intended to enter into a contract.

These decisions show that courts are willing to treat emojis as expressions of intent or agreement. The meaning given to an emoji may depend on the context, past usage, and the relationship between the parties – and as with the spoken and written word, may be interpreted by a Court as carrying a meaning different to what the party (subsequently claimed to) intend.

The take away in a commercial context is to avoid the use of ambiguous language wherever possible – and to remember that language can include symbols and pictures. While emojis can add personality and to messages, use them carefully, and be aware of their possible impact in business and legal contexts.