TALK IS CHEAP, BUT TEXTING MIGHT COST YOU MORE THAN YOUR PHONE BILL

A Canadian judge made headlines on June 8, 2023 when he ruled a thumbs-up emoji was a sufficient acceptance in a contract between a farmer and a grain processing cooperative. A cooperative employee texted the farmer a picture of a proposed contract and asked him to confirm the agreement. The farmer texted back with a thumbs-up emoji. The Canadian judge opined the emoji was just as valid as a signature and courts must adapt to modern realities.

U.S. Courts are also not shy to the emojis’ impact on everyday life and business. In August of 2022, the New York Supreme Court, Kings County, considered whether a thumbs-up emoji was a sufficient acceptance. In this case, Lightstone RE LLC v Zinntex LLC, the plaintiff texted a payment schedule proposal and the defendant sent a thumbs-up emoji in response. In refusing to grant a motion for summary judgment, the Kings County Court stated, “there are questions whether text messages and emojis in particular satisfy the statute of frauds. This is particularly true concerning a thumbs up emoji which may convey different meanings.”[1] In finding that there were issues of fact that need to be determined, the Court noted that a text message with a thumbs-up emoji did not suggest a clear intent to be bound, but required consideration of all of the text messages exchanged between the parties.

In February of 2023, the Southern District of New York U.S. Federal District Court, ventured far into the world of emojis and the meanings they convey in an NFT’s (non-fungible tokens) promotional messages. In Friel v. Dapper Labs, Inc., the District Court concluded that Dapper Lab’s use of certain emojis has an objective meaning. The Court stated, “although the literal word ‘profit’ is not included in any of the Tweets, the ‘rocket ship’ emoji, ‘stock chart’ emoji, and ‘money bags’ emoji objectively mean one thing: a financial return on investment.”[2] In this case, Dapper Labs’ NFT was declared a security was fined, and forced to register with the SEC.

Emojis have made their mark on the global legal system and that impact does not seem to be going anywhere. Farmers and securities-investors alike are faced with this reality. Using emojis in any form of communication has consequences, maybe even the contractual kind. The recent Canadian ruling is a reminder to Americans that regardless of your social or professional standings and sophistication, no one is immune to the wrath of emojis.

[1]  Lightstone RE LLC v Zinntex LLC, 2022 N.Y. Misc. LEXIS 5925 (N.Y. Supreme Ct. Aug. 25, 2022).

[2] Friel v. Dapper Labs, Inc., 2023 U.S. Dist. LEXIS 29176.