Over the ages, as the mode of communication evolved with technological advancements, so did the symbols of communication which serve as visual representations to express or convey information, emotions, or ideas. From ancient pictograms and hieroglyphs to modern digital emojis, the gamut of expression in facilitating the understanding of ideas has become highly advanced.
In the digital age of instant messaging and mixed reality, emojis are a versatile and evolving form of digital expression that enhances textual communication by adding emotional and contextual nuances. While it is understood that emojis are a universal language which helps in breaking language barriers, this may not be the case as emojis have relative meanings, depending on culture and location. For example, the ‘👍’ is considered offensive and obscene in the Middle East and Greece, whereas it is meant to signify assent in Western countries; the ‘🙂’ emoji generally denotes friendly sentiments while it is meant to be sarcasm in China.
In the legal context, the meaning of emojis can be subject to interpretation based on different contexts or their past usage in communication. An emoji can potentially convey intent or emotion that might be crucial in ascertaining the understanding or agreements between the parties. Across various countries, like the US, UK, New Zealand, Australia, France, and India, emojis have led to legal disputes and have had to be interpreted based on their varied interpretations in different jurisdictions.
Recent ruling in Canada – Emoji is a non-traditional means to sign a contract
In a recent ruling, South West Terminal Ltd v. Achter Land & Cattle Ltd; the Saskatchewan Court of the King's Bench in Canada recognized the ‘👍’ emoji as a non-traditional means to sign a document as it originated from the seller’s unique cell phone and it satisfied the two purposes of signature - identification and the conveyance of the acceptance of the contract. The court was concerned with the question of whether there was any valid contract between the buyer and seller to deliver 87 metric tonnes of flax for a price of $669 per metric tonne in 2021. In the said case, the buyer, subsequent to a conversation on mobile, signed the contract and then took a photo of it using his cell phone and sent it to the seller with the message “Please confirm flax contract." The seller texted back a ‘👍’.
It was contended on behalf of the seller that the emoji meant a sort of acknowledgement of receiving the message while the purchaser said it was meant to be an affirmation of the contract.
While adjudicating the case, Justice Keene looked into the meaning of 👍 in dictionary.com, which stated that it ‘is used to express assent, approval, or engagement in digital communications, especially in western countries.' The court, therefore found that there was consensus ad idem between the purchaser and seller and observed that the contract was enforceable. Therefore, the court ordered the seller to pay damages for breach of the contract, in spite of the iteration by one of the counsel for the seller that this mode of acceptance would open up floodgates to allow all sorts of cases going forward asking for interpretation as to what different emojis imply.
USA - Emojis used as evidence in criminal cases
Emojis are increasingly appearing in criminal cases and their use can significantly impact how evidence is interpreted and understood. In the United States, during the 2015 trial of Ross Ulbricht, the founder of the Silk Road online marketplace was convicted of money laundering, computer hacking, and conspiracy. Initially, the prosecution focused on emails and chat logs, excluding emojis. However, Judge Katherine Forrest of the Manhattan District Court later instructed that all internet communications, including emojis, should be considered by the jury while deliberating the intention of the accused. Emojis can be submitted as evidence in the court, with their admissibility contingent on their relevance to the case and the accuracy of their interpretation within the communication's context.
France - Death threat through Emoji
Emojis can be scrutinized to determine intent (mens rea), especially in cases involving threats or harassment. For instance, in France, in 2016, a young man Ajoghag Bilal was convicted for making criminal threats, for sending a gun-shaped character to his ex-girlfriend through a text message sent from his mobile number. The court found that the message constituted a death threat in the form of an image and he was charged under Article 222-17 of the French Penal Code, for making a death threat and the accused was sentenced to 6 months of imprisonment and a 1,000 euro fine.
Israel - Emojis in rental agreements
In Israel, in the case of Dahan v. Shakaroff, the Tel Aviv Small Claims Court ruled that a string of positive emojis sent in text messages between a couple and a landlord formed a part of the contract showing the intention to rent an apartment. Relying upon the positive messages, the landlord believed the tenant would rent the apartment and took it off the market. The prospective tenants later disappeared. Hence, the landlord sued the couple for almost $3000 when they did not hold up their end of the bargain. Judge Amir Weizebbluth observed that the positive emojis which included a smiley face, a bottle of champagne, dancing figures and more between the parties, indicated an intent to do business and awarded damages to the landlord.
Australia - Defamation and Emojis
In the landmark case of Burrows v Houda, Houda, a lawyer, reposted a tweet about another lawyer, Burrow, the plaintiff who was facing disciplinary action from the law society due to alleged misconduct. Although Houda's comment contained no text, the inclusion of a ‘🤐’ i.e. zipper mouth emoji was held to be defamatory. The plaintiff claimed that these tweets suggested that she had acted improperly and was unfit as an attorney. In the New South Wales District Court, Justice Gibson referred to the online dictionary ‘Emojipedia’ and said that '🤐' means ‘a secret’ or ‘stop talking’. The Court observed that the post was easily accessible to Twitter users globally, resulting in considerable harm to Burrow's reputation and affecting her career as a lawyer.
In India, the use of emojis in legal settings is relatively novel and less frequent as compared to countries like the USA, France, or Australia. Nonetheless, with the rise of digital communication, Indian courts are beginning to acknowledge that emojis play a vital role in understanding the intent of the parties.
The thumbs up ‘👍’ emoji was put to test before the Madras High Court in Director General, Railway Protection Force vs. Narendra Chauhan. An employee of the Central Railway Protection Special Force was dismissed from service for putting a thumbs up ‘👍’ symbol as a reply to a message in a WhatsApp group where a video of a constable murdering the Assistant Commandant was shared. This was construed by the Railway Force that the employee/petitioner was in moral support of the accused and was celebrating the murder. Disciplinary proceedings were conducted, and he was removed from service over his emoji remark. The Division Bench of the Madurai Bench of Madras High Court considered the ‘👍’ emoji and observed that thumbs up ‘👍’ could also be construed to be an alternative for the word “OK”. Thus, the Hon'ble Court in this case held that sharing of the said emoji symbol did not amount to celebrating the murder, but an acknowledgement of the fact that he had seen the message and thus, directed the reinstatement of his service without back wages.
In another case, the Hon’ble Madurai Bench of the Madras High Court in I. Linga Bhaskar v. State of Tamil Nadu adopted a completely different stance from that taken by France in the case of Ajoghag Bilal discussed above. An official WhatsApp group was created to share complaints and grievances in the deficiency of services in BSNL and to rectify them. A video was posted by the complainant (an outdoor staff of BSNL) containing 3 customers complaining about the services of BSNL. The accused (indoor staff) assumed the video was taken to degrade them and in response, all the indoor staff posted ‘😂’ emoji as retaliation for the humiliation. The complainant (outdoor staff) stated that she was put to mental agony and was crying all night and could not sleep. The complaint was registered under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and Section 67 of the Information Technology Act. Challenging the FIR, a quash petition was filed before the Hon’ble Madras High Court. The Hon’ble Madras High Court observed that an emoji is sent to express ones feelings about something and cannot be treated as an overt act on others, and thus, quashed the complaint.
Emojis, per se are not criminal nor defamatory. They do not by themselves constitute or communicate acceptance, approval, execution or understanding of a contract. Rather, their significance depends on the contextual use of such emojis in the facts of each case. While there are some similarities in how emojis are addressed in legal cases across varied jurisdictions, differences have also been noticed due to varying legal frameworks, cultural contexts and judicial attitudes. Indian judiciary is gradually adapting to the digital age with increasing awareness of online communication’s nuances. Hence, the Indian courts are still developing precedents for interpreting emojis by often looking at broader communication patterns rather than standalone symbolic meanings.
About the authors: Aditya Ganju is the Lead at AG Chambers and Counsel at Rise Legal. Honeyshya Raj R V is an Associate at AG Chambers.