Can a thumbs-up emoji 👍amount to assent or acceptance of an offer?
By Wee Qianliang
What is an Emoji
In one of our local judgments, the Court defined an emoji as a “digital picture of or pictorial symbol that represents a thing, feeling, concept, etc., used in text messages and other electronic communications”.[1]
The Prevalent Use of Emojis in Modern Society
Emojis are a global phenomenon and are prevalent in our daily communications with our friends, colleagues, employees, stakeholders and even clients. Over ten billion emojis are sent each day by ninety-five per cent of the online population.[2] These emojis are commonly used in our communications via messaging apps, including but not limited to, WeChat, Apple Inc’s ‘Messages’.
So commonly are emojis used in our communications nowadays that they are not confined to social settings. Many of us now use emojis in our conversations which can extend to business settings.[3] Therefore, it is unsurprising that Singapore judgments now contain references to the use of emojis which may be contained in the communications of parties or witnesses in relation to the legal proceedings.[4]
Having said that, it is not a prudent practice to use emojis in contractual settings. In an article by Timothy Murray, a lawyer in Pittsburgh, Pennsylvania, he suggests that the legal landscape of contracting by emoji is littered with traps for the unwary.[5] The interpretation and understanding of certain emojis varies in different countries and cultures. For example, in countries such as Italy, Greece, Iran and Afghanistan, people interpret the “thumbs up” emoji (👍) as a sign of disrespect[6]. In the eyes of Gen Z, the thumbs-up emoji is seen as passive-aggressive, hostile and a low-effort response[7]. Having said that, in Western Cultures, the thumbs-up emoji is generally taken to mean assent, approval, or encouragement in digital communications[8].
Therefore, would the Singapore Courts similarly hold that a “thumbs up” emoji could amount to an acceptance of a contract? As much as I would like to give an equivocal “yes” or “no” answer, it really depends! Before I set out my views, it would be helpful to look at the relevant legislation and case law in relation to this subject.
Electronic Transactions Act
In the context of Singapore, section 11 of the Electronic Transactions Act 2010 (“ETA”) provide, inter alia, that an offer and acceptance may be expressed by means of electronic communications. In other words, the ETA allows the use of electronic or digital signatures save for certain documents, including: -
a. The creation or execution of a Will;
b. The creation, performance, or enforcement of an indenture, declaration of trust or power of attorney, with the exception of implied, constructive and resulting trusts and a lasting power of attorney (which can now be done by way of digital submission);
c. Contract for the sale of disposition of immovable property; and
d. Conveyance of immovable property.
As such, it is not unfathomable that an emoji can constitute an acceptance of the contract in lieu of an electronic or digital signature, so long as the contract is not one of the ‘excluded’ contracts stated in the ETA.
Emojis form part of evidence and can be used to corroborate the version of facts by a party
To date, to the best of my knowledge, there are no locally reported judgments similar to the facts in the Canadian decision of South West Terminal.
As mentioned in the first paragraph of this article, the learned District Court Judge Ng Tee Tze Allen in Yang Nan v Li Shukai [2022] SGDC 215 (“Yang”) had set out its definition of an emoji.
In Yang, which is now on appeal, the plaintiff sued the defendant under tort, alleging that the defendant had confined her in his house and raped her. In summary, without going into the facts of the case in detail, the Court held that the various smiling and affectionate emojis used by the plaintiff in her communications with the defendant contradicted her version of events that she was raped by the defendant. Having regard to the absence of any objective direct evidence of the alleged rape and the contemporaneous evidence, amongst other reasons, the Court dismissed the plaintiff’s claim.
In my view, it is clear that emojis, which may form part of our communications between parties, constitute evidence which can be used to corroborate the version of facts by one party against another.
Foreign judgments on whether emojis can amount to acceptance of a contract
South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116
In a recent Canadian decision, South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116 (“South West Terminal”), the Court held, inter alia, that the “thumbs up” emoji, having regard to all the circumstances of the case, constituted an acceptance of the contract and found that the parties entered into a binding legal contract.
The facts of the Canadian decision of South West Terminal are rather straightforward and concern a summary judgment application brought by the plaintiff against the defendant arising out of a deferred delivery purchase contract. The plaintiff had agreed to buy and the defendant agreed to deliver a flax[9] at a certain contract price.
In South West Terminal, the plaintiff and the defendant had a previous course of dealing prior to the subject contract in question. Notably, when the plaintiff had, on prior occasions, sent the contracts to the defendant by text message, the defendant conveyed its acceptance by using words such as “ok”, “yup” or “looks good”. In the present case, the plaintiff signed the contract in question and sent it to the defendant. The defendant had, in his text message to the plaintiff, replied with the 👍 emoji (“thumbs-up emoji”).
The defendant argued that the thumbs-up emoji simply confirmed that he received the contract and not that he agreed with the terms of the contract. The defendant further argued that allowing a simple thumbs-up emoji to “signify identity and acceptance would open up the floodgates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean – for example, what does a fist (👊) emoji mean or a handshake (🤝) emoji mean, etc.”[10]
The Court accordingly held that the defendant’s representative had “okayed or approved the contract just like he had done before except this time he used a 👍emoji”.[11]
In contrast, without going into the facts in too much detail, the Court in the New York decision of Lightstone RE LLC v Zinntex LLC[12] held that the thumbs-up emoji from the defendant did not constitute an acceptance of the contract, in light of the text messages from the defendant prior to the issuance of the thumbs up emoji wherein the defendant categorically asserted he would not sign any document.
Whilst the Court eventually allowed the plaintiff’s application for summary judgment for other reasons, the Court held that there were questions of fact whether the defendant ever intended to be bound by a written text message in the form of the thumbs-up emoji.
My two cents’ worth
So, would the argument that a thumbs-up emoji amount to an acceptance of a contract stand up in the Singapore Courts?
I am assuming that the contract in question is in writing. For the purposes of brevity, I will not go into the Courts’ approach for determining the existence of an oral agreement.
The principles of contractual interpretation in Singapore are well-established. The Courts’ starting point would be to look at the text of the contract and have regard to the relevant context if it is clear, obvious and known to both parties. Examples of the relevant context include the entirety of the contract[13] In South West Terminal, the facts are rather straightforward because the plaintiff sent the entire contract to the defendant, leaving only the defendant’s impending signature to be made.
On the assumption that (1) the contract in question is not one of the excluded documents stated in the ETA and (2) the terms of the contract are contained in the text messages between the parties, based on the principles of contractual interpretation above, we need to first examine the previous course of dealing between the parties (if any) as well as the series of messages between the parties, both prior to and after the alleged acceptance of the contract.
Firstly, one of my observations is that the messages by one party (A) to another (B), in recent years, can be disjointed and broken down into parts. It can be quite difficult to understand what A is saying to B, without looking at the entire message history between parties. This can lead to some difficulties in contractual interpretation as to what are the terms of the offer and acceptance.
Second, it can be unclear which message from A that B’s emoji is responding to. B could argue that his 👍emoji was responding to an earlier message by A and therefore did not amount to an acceptance of A’s offer. Again, we need to look at the entire message history to discern the terms of the contract, assuming that there was indeed a contract in the first place. This problem may somewhat be ameliorated by one of the functions of instant messaging platforms to allow one party to reply directly to a specific message. This allows both parties to see the message from A that B is responding to:-
In WhatsApp, one can also reply directly to another party’s message with an emoji by double tapping on the message and it looks like this:-
Conclusion
Based on first principles, I would argue that a “thumbs up” emoji may constitute an acceptance of an offer and therefore give rise to a valid contract between the parties which is enforceable in the Singapore Courts.
Footnotes:
[1] Yang Nan v Li Shukai [2022] SGDC 215 (“Yang”) at [35].
[2] Leslie Y. Garfield Tenzer & Ashley Cangro, An Emoji Legal Dictionary, 83 U. Pitt. L. Rev. Online 1 (2022).
[3] Timothy Murray, ‘Contracting by Emoji’, <https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/contracting-by-emoji> 27 April 2023
[4] For example, see Kelington Engineering (S) Pte Ltd v Gan Cheng Chuan [2022] SGHC 90 in which one of the parties used a “thumbs up” emoji in communications. Also see Yeow Khim Seng Mark v Phan Ying Sheng [2021] SGHC 145, in which the Honourable Ang Cheng Hock J held at [33] that he did not accept that the use of the laughing face emoji can somehow be a salve to remove the sting of the defamatory allegation.
[5] Timothy Murray, ‘Contracting by Emoji’, <https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/contracting-by-emoji> 27 April 2023
[6] Ibid.
[7] Brooke Steinberg, ‘Gen Z wants you to stop using this popular emoji’ <https://nypost.com/2022/10/26/gen-z-has-hidden-meanings-for-emojis-beyond-rude-thumbs-up/amp/> 26 October 2022
[8] <www.dictionary.com/e/emoji/thumbs-up-emoji> 17 May 2023
[9] Flax is a flowering plant and is more commonly known for the use of its fibres to manufacture textiles such as linen which is accordingly used for clothes, bed sheets, clothes and table linen amongst others.
[10] South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116 at [40].
[11] Ibid at [36].
[12] Lightstone RE LLC v Zinntex LLC [2022] N.Y. Slip Op 32931 (U) (Kings Cty. 2022)
[13] PT Bayan Resources TBK and another v. BCBC Singapore Pte Ltd [2018] SGCA (I) 6
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