We often add an emoji to our emails and text messages to bring a bit of levity to otherwise dull communications, but beware – icons such as the thumbs up, smiley face or gun could land you in trouble with the law.
Legal impact of using emojis
An emoji is an image used in texting and other online communications. They are now accepted as a part of written language. Their general purpose is to add a comment or shade of meaning to what we write.
But a growing number of cases involving emojis have landed in courts, some with costly consequences.
"Thumbs up" and "smiley face" emojis have been accepted in some courts as approval for a contract or agreement, while a bomb, gun and knife emoji have been presented as evidence of a threat in criminal cases.
In a NSW court, a man pleaded guilty to using a carriage service to menace after police showed he sent an emoji to his former partner of a gun pointed at a head.
Also in NSW, a judge in a defamation case consulted Emojipedia to determine the meaning of a zipper face emoji. The judge ruled the icon meant a secret, or "stop talking", and in the circumstances could contain a defamatory meaning. (Please see Burrows v Houda [2020] NSWDC 485.)
"Thumbs up" emoji interpreted as acceptance of contract
Some overseas courts have ruled emojis can be taken as legal approvals in contracts or business agreements.
The sender of a "thumbs up" emoji might try to say they were just joking and they didn't really mean it as a formal acceptance of a contract, but there is a growing trend for courts to accept the icon as legal acceptance of a deal.
A Canadian court ruled a "thumbs up" emoji sent by a farmer in response to an emailed contract for grain was a legally binding contract. The farmer said the emoji was just to signify he had received the message. (Please see Judge orders Canadian farmer to pay $92k over thumbs-up emoji, news.com.au, 8 July 2023.)
Emojis as threats
Emojis have also been ruled as real threats of physical violence. In the US a student who posted an emoji of a gun, bomb and knife on Instagram, along with the words "killing" and "library" was charged with threatening her school.
In France a man was sentenced to three months in jail after sending a gun emoji to his ex-girlfriend. It was ruled to be evidence of a death threat. (Emojis like thumbs-up or a full moon are tiny icons, but they can have big legal implications, ABC News, 7 September 2023.)
Exercise caution when using emojis
Emojis have become widespread and are mostly just good fun. But be careful when communicating with someone in a sensitive relationship. Certainly, avoid anything threatening such as symbols depicting weapons.
In business, be very clear about your meaning, particularly when discussing contracts or deals. It's best to avoid the thumbs up. After all, in ancient Rome thumbs up at the arena actually meant death for a gladiator, not life.
For more information please see Emojis adding new dimension of unpredictability and ambiguity to electronic communications.
Anne-Marie Fahey
Commercial contracts
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
