What you say (or don’t say) is critically important in a business setting, especially in the context of contract negotiations. But not for the first time, the courts have recently had to grapple with the use of emojis as a means of entering into a binding contract.

In the Canadian case of South West Terminal Ltd v Achter Land & Cattle Ltd, the proposed buyer South West Terminal Ltd (“SWT”) texted the proposed seller Achter Land and Cattle Ltd (“Achter”) an image of the contract for the purchase of flax. The message accompanying the image read: “Please confirm flax contract”. Achter responded only with the “thumbs-up” emoji. Achter did not subsequently deliver the flax and SWT brought a claim for breach of contract and damages in the amount of $82,200 (approximately £50,000).

Achter denied having entered into any contract, arguing that the thumbs-up emoji simply confirmed receipt of the contract and was not confirmation that it agreed with the terms of the contract. Alternatively, Achter argued that the contract was not enforceable, relying on the statutory defence that there was no note or memorandum of the contract made or signed by the parties.

The judge ruled in favour of SWT in finding that there was a valid contract, and that this was breached by Achter failing to deliver the flax. The judge was referred by the parties to cases from various jurisdictions in an attempt to unearth what a thumbs up emoji meant, but all were held to be distinguishable on the facts and context. The judge preferred a simpler approach, using the dictionary definition of the thumbs up emoji to find for SWT: “It is used to express assent, approval or encouragement in digital communications, especially in western cultures.”

Whilst concerns were expressed by Achter that using an emoji as a form of acceptance (and in this case a valid signature) could “open the floodgates”, the judge held that the court shouldn’t “attempt to stem the tide of technology and common usage” and that the courts “will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”

As ever, context is likely to be key. The courts have long dealt with non-verbal, non-written communication and in some respects the use of emojis is simply business as usual. However, given that the intention behind emoji use can vary hugely by region, group and individual, their ambiguity can make them difficult to interpret objectively. This means that contracting by emoji may well be a trap for the unwary and can lead to unintended consequences. As a rule of thumb, using emojis in a contractual setting should always be done with caution.