A “thumbs-up” emoji can be a valid signature when it comes to agreeing to a contract, a court of appeals in Canada has ruled.
The decision in the legal battle between farmer Chris Achter and grain buyer Kent Mickleborough, which was handed down this week, could have major implications for e-commerce, going far beyond a dispute that played out in the province of Saskatchewan.
It all started when Mr Mickleborough sent out an appeal to anyone willing to sell him 86 tonnes of flax at 17 Canadian dollars (US$11.80) a bushel. Mr Achter agreed and received, by text, a photo of the contract which said the flax would be delivered by November 2021.
“Please confirm flax contract,” the message from Mr Mickleborough continued. Mr Achter replied by text, sending a thumbs up emoji – and this is where things started to get complicated.
By the time the flax was due to be delivered, it had shot up in price, and Mr Achter refused to go through with the deal, contending that the emoji meant that he had merely received the contract.
But Mr Mickleborough believed the thumbs-up meant that Mr Achter had agreed to the contract and signed up to the deal, entitling him to the grain at the bargain price. Mr Mickleborough sued.
Round one went to Mr Mickleborough and he was awarded about 87,000 Canadian dollars (US$61,000) in damages. Mr Achter gave that ruling a thumbs-down and appealed.
The appeals court debated the significance of the symbol at some length. According to the ruling, both sides had engaged in “a far-flung search for the equivalent of the Rosetta Stone in cases from Israel, New York state and some tribunals in Canada, etc to unearth what a [thumbs up] emoji means”.
The court expanded the original 18-page judgment to 82 pages, with two judges upholding the original ruling and one giving a dissenting opinion. Mr Achter’s argument that the emoji had no legal force whatsoever was dismissed, but the court also rejected Mr Mickleborough’s claim that it was binding in its own right.
Instead, it said that the emoji should be considered alongside what else happened in the negotiations and transactions.
“There is some distance between, on the one hand, saying that a communication – whether it be by word, gesture or symbol – does not bear a universal meaning and, on the other hand, asserting that it is incapable of having a particular meaning ascribed to it in a specific circumstance,” the court ruled
“In this case, the judge’s reasons were limited to examining how an objective reasonable bystander, viewing all of the relevant circumstances, would have understood Mr Achter’s text message.”
The case was watched closely by Syngrafii Inc, a company that has been involved in the more niche aspects of e-commerce, such as how documents are signed remotely, for more than 20 years. It submitted its own evidence as an interested party.
“It is important in the drive for frictionless e-commerce that the value of human consent to a contract in a digital world be retained,” said Scott Nettie, the company’s general counsel.
“This recognition by the court advances e-commerce by drawing a cautionary line at the edges of consent and reminds people that intent will always triumph over form, so it remains critical when executing documents to be able to evidence intent. Form alone may not suffice.”
Where this leaves the future of the thumbs-up emoji is a matter of conjecture, even though it was considered valid in this case.
But the implications are important for companies using e-signature technology, John Gruetzner of Syngrafii told The National.
The biggest significance coming out of this decision is that there needs to be a global recognition that e-signature laws are more than 20 years in force and need to be updated, Mr Gruetzner said, and that it should reflect changes and improvements in technology.
“Preserving human consent in a digital world requires a constant update,” he added.
