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Authors: Wasim Beg, Founder & Managing Partner, Lectio Law (Advocates & Solicitors) and Aayushi Choudhary, a fifth year student of Gujarat National Law University, Gandhinagar.
A couple of friends were planning a lunch outing. 👨 WhatsApp(ed) “Let’s meet at the new Italian place at 2pm”. 👩 replied 👍. While the acceptance was not expressed by way of the conventional ‘Yes’, but the use of an emoji ‘👍” left no doubt in the mind of the modern-day man. The plan was on and they had a hearty meal. In today’s digital world, expressive emojis have increasingly become a common language. From setting lunch plans to conversations with friends, a simple thumbs-up emoji suffices to convey messages seamlessly.
In 2015, the 😊 emoji was held to be Oxford Dictionaries’ ‘Word of the Year’, highlighting emojis’ growing use and undeniable importance. While emojis comfortably express our moods and emotions, can these light-hearted pictograms also form legally binding contracts?
Contract law requires an offer, acceptance and consideration – so can a 👍 or ❤️emoji imply acceptance to create a valid agreement? Although arguably ambiguous, emojis convey meaning. Indian Courts have recognized that emojis express various emotions. Therefore, it is imperative to determine when they hold legal weight or indicate intent/acceptance or the lack of it.
ACCEPTANCE UNDER INDIAN CONTRACT ACT
As per Section 2(b) of the Indian Contract Act, ‘acceptance’ occurs when the offeree signifies assent to the offer communicated to the offeror, based on the principle of consensus ad idem or ‘mirror rule’. The Act does not prescribe a mode of acceptance but if the offer specifies one, that mode must be followed as per Section 7. Acceptance must be expressed in a usual and reasonable manner. Section 8 considers performing conditions or accepting consideration as acceptance. The essentials of a valid acceptance are:
1. Acceptance must be communicated to the offeror.
2. It must be absolute and unqualified.
3. The acceptance must be made in a usual and reasonable manner, unless specified.
4. Acceptance must be expressed while the offer is still open.
Section 9 of the Contract Act deals with implied acceptance which is inferred from facts and circumstances. When terms are ambiguous, Courts adopt an objective interpretation based on language and context. Supreme Court in Trimex International FZE Ltd. v. Vedanta Aluminium Ltd. held that an acceptance through email exchanges formed a binding contract even without a signed document. Delhi High Court in Lets Engineering & Technology Services v. Manoj Das also confirmed that an arbitration clause in an unsigned agreement could be valid based on email correspondence between parties.
EMOJIS AND CONTRACTS: CROSS-JURISDICTIONAL PERSPECTIVE
Indian Courts have not directly dealt with the use of emojis as acceptance of Contracts. However, Canadian and New York Courts have addressed this issue. In the Canadian case of South West Terminal Ltd. v. Achter Land, the Court addressed whether a thumbs-up emoji (👍) could signify acceptance of a contract. The case involved a grain contract where South West Terminal Ltd. sent a deferred delivery production contract to Achter Land & Cattle Ltd. The defendant responded with a thumbs-up emoji. The Court examined the context, including the parties’ longstanding business relationship and their history of using electronic communications for contracts. Considering the modern use of emojis and the dictionary definition indicating that the thumbs-up emoji expresses assent, approval, or encouragement, the Court ruled that the emoji constituted valid acceptance of the contract.
In Lightstone RE LLC v Zinntex LLC, the New York Court also addressed this question. The Court noted the ambiguous legal standing of emojis but found factual disputes about the Defendant’s intent, especially given the Defendant’s earlier refusal to sign. The Court concluded that this issue couldn’t be summarily decided on the emoji alone but found that separate email communications with precise terms confirmed by the Defendant did create a binding contract. So, while not definitively ruling that an emoji could potentially constitute a signature/acceptance in some cases, the Court determined, that based on, the specific facts, there were triable issues as to whether the thumbs-up emoji manifested an intent to be bound by an accord.
In Blom v. Blom, the British Columbian Court whether an emoji could signify acceptance of a contract amid a duress claim, considering the context and contemporaneous evidence to interpret the parties’ intentions. This demonstrates the Court’s recognition of emojis as potentially indicative of acceptance or insight into a contract’s validity. Similarly, in an Israeli case, a landlord sued prospective tenants for backing out of lease negotiations after their texts with emojis like smileys and dancing women led him to believe they were committed. The court ruled that while the emojis did not form a binding contract, they conveyed “great optimism,” leading to the landlord’s reasonable belief in the tenants’ interest, thus constituting bad faith negotiations.
In these cases, Courts have not decided the acceptance of contracts solely based on emoji use. They have assessed whether the contract meets essential criteria, considering the surrounding circumstances, such as prior transaction history in the South West Terminal case and email communications in the New York case. Indian Courts similarly determine case validity based on context. In Food Corporation of India V Abhijit Paul, the Supreme Court emphasized interpreting contract terms according to the parties’ true intentions, discerned from the entire agreement and surrounding circumstances. This case could potentially be relevant in interpreting the use of emojis in contractual communication, as it emphasizes the importance of considering the context and surrounding circumstances in interpreting contract terms.
NAVIGATING EMOJI’S INTERPRETATION: INDIAN PERSPECTIVE
Indian Courts have discussed the meaning and use of emojis in various legal contexts. In Director General Railway Protection Force v. Narender Chauhan, an Indian constable was initially dismissed for using a “thumbs up” emoji in response to a message about a superior officer’s murder in an official WhatsApp group. The Madras High Court, on appeal, examined whether the emoji signified mere acknowledgment or endorsement of the murder. The constable, claiming unfamiliarity with WhatsApp and a clean disciplinary record, argued it was an accidental acknowledgment. The Court ruled in his favor, highlighting the importance of context and the sender’s plausible explanation, thereby demonstrating serious consideration of emojis based on specific case facts.
In another case, regarding the use of a laughing emoji with tears by BSNL employees in a WhatsApp group, the Madras High court held that posting emojis cannot be considered a criminal offense. The Court stated that emojis express feelings and that the laughing emoji indicated disapproval or ridicule, not an intent to harm, defame, or humiliate the complainant. The Court emphasized that people have the right to express their feelings and that emojis alone, without obscene or harassing content, do not constitute a criminal act. This case highlights the Court’s view of emojis as emotional communication without legal binding implications.
Therefore, the seriousness and the legal impact of using emojis have already been given due credence by Courts in India, even if there may not be emphatic pronouncements on the impact these emojis can have on obligations under the Contract Law.
CONCLUSION
Emojis as acceptance of Contracts have not yet been directly examined by Indian Courts. Nevertheless, Courts have already shown some intent to consider interpreting emojis and have not dismissed them as flippantly as one might have expected a few years ago. The Courts have underlined the context when reviewing emoji-related disputes, indicating that emoticons can facilitate the understanding of Contracts and intent. Emojis could potentially be considered implied acceptance under Section 9 if they establish clear assent to contractual terms based on the overall context and parties’ intentions.
To address the potential challenges and complexities of emoji use in contract law, Indian courts could consider adopting a multi-faceted approach. This approach would begin with a contextual analysis, where courts examine the entire communication history between parties, not just isolated emoji usage. This would include considering prior business relationships, industry norms, and the specific circumstances surrounding the contract. Intent assessment would be another crucial aspect, with judges evaluating the sender’s intended meaning behind the emoji, taking into account factors such as technological literacy, cultural background, and any explanations provided by the parties. Courts could also apply an objective interpretation standard to determine how a reasonable person would interpret the emoji in the given context, similar to the approach taken in interpreting traditional contract language. Finally, the judiciary could work towards establishing clear guidelines by developing specific criteria for determining when emoji use constitutes valid acceptance under contract law.
While one may be tempted to conclude that a simple thumbs-up emoji accompanied by associated circumstances can simply signify a clear intent, one needs to be wary of WhatsApp features like editing of message or disappearing messages, as they can create a lot of complications moving forward. If messages or emojis expressing acceptance are subsequently edited, it may invalidate/have a huge impact on any implied acceptance or consent that may have been originally conveyed. To address this challenges, technological considerations would be necessary, potentially requiring parties to provide additional evidence of agreement, such as follow-up communications or actions taken in reliance on the perceived agreement.
In conclusion, as we navigate this new frontier of digital communication in contract law, it is essential for courts, legal professionals, and contracting parties to remain flexible and open to evolving interpretations while also maintaining the fundamental principles of contract formation and interpretation. The emoji conundrum presents both challenges and opportunities for modernizing our approach to contract law in the digital age.
