It was recently found in a Canadian court that the ubiquitous symbol of a “thumbs-up” emoji can constitute binding contractual acceptance, marking a significant global trend in the interpretation of electronic signatures.

The facts of the relevant case, namely South West Terminal v Achter Land & Cattle (2023) were, briefly, as follows:

• A grain buyer sent a mass text message to potential clients, including a farmer with whom he had a longstanding business relationship, offering to purchase a certain amount of flax at a specified price per bushel.
• Following a telephone conversation between the buyer and the farmer, wherein the terms of the contract were discussed, the buyer sent a picture of the proposed contract with a text message asking the farmer to confirm the flax contract.
• The farmer replied with a “thumbs-up” emoji.
• Subsequently, the farmer failed to deliver the flax as agreed.
• Flax prices surged and the buyer sought to enforce the contract and delivery of the flax at the agreed price.
• The farmer argued that the “thumbs-up” emoji only indicated receipt of the message, not acceptance of the contract terms.

The central issue before the court was therefore whether the “thumbs-up” emoji constituted a valid acceptance of the offer. Judge Keene emphasised the parties’ longstanding business relationship and the context of their communication in previous dealings where similar informal expressions (for example “looks good” or “yup”) had sufficed as acceptance.

He also referred to the Electronic Information and Documents Act, 2000 (Canada’s equivalent to South Africa’s Electronic Communications and Transactions Act, 2002, or “ECTA”) which provides that an offer may be accepted “by an action in an electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter”. In his judgment, Judge Keene emphasised that courts must adapt to the realities of modern communication and the significance of emojis in expressing intention.

Though the South West Terminal case is not binding in South Africa, it marks a notable departure from traditional notions of contract formation and a South African court, faced with the same factual scenario, may well come to the same conclusion. The meaning of “Electronic Signatures” under ECTA has already been interpreted to encompass a broad array of signatures, including “I accept” boxes on websites (Swales The Regulation of Electronic Signatures: Time for Review and Amendment; Spring Forrest Trading CC v Wilberry (Pty) Ltd t/a Ecowash 2015 JOL 32555 (SCA)). Depending on the circumstances of the case, a “thumbs-up” emoji could arguably fall within the auspices of an “Electronic Signature” as contemplated under South Africa’s ECTA as well.

Accordingly, clients should be wary of the impulsive use of emojis such as the “thumbs up” emoji, or conceivably the “fist bump” emoji or “handshake” emoji, when dealing with suppliers or clients as these symbols, once relegated to casual conversations, are now emerging as potential signifiers of binding contractual acceptance.

Margot Basson

Please note that this article is published for information purposes only and does not constitute legal advice.