The Oxford dictionary defines an emoji as a small digital image or icon used to express an idea or an emotion. Emojis are arguably the fastest growing language used on WhatsApp, text messages, emails and multiple social media sites as a form of communication. The creation of the first emojis is attributed to the graphic designer, Shigetaka Kurita in 1999.

As much as emojis are used to give expression to the written text, emojis can certainly also be used to alter the meaning of the accompanying text. In case law around the world, forensic linguists are called on to offer expert testimonies as evidence on emojis presented in data messages. There are multiple cases in the United Kingdom and in the United States addressing the interpretation and the meaning of emojis used in communication between parties. According to Eric Goldman, a Santa Clara University law professor who monitors court opinions that are made public, the number of reported cases dealing with emojis as evidence in the United States increased from 33 in 2017, to 53 in 2018, and at the date of his report, was already at 50 cases for the first half of 2019. As with various other electronic communication, emojis serve as valuable evidence in interpreting communications between parties.

The interpretation of emojis has not been tested in South African courts. In terms of South African law, emojis and unicode fall under the definition of a ‘data message’ in terms of Section 1 of Electronic Communications and Transactions Act (ECT Act). Data message is defined as “data generated, sent, received or stored by electronic means”. We have seen an increase in the use of data messages being presented as evidence in courts. As a contract may be concluded by way of data messages, the question must then be posed whether the use of emojis can lead to you being bound by a contract.

The use of a smiley face, a thumbs up, dancing figure or similar emojis may be interpreted as an acceptance of the contract terms and ultimately result in a valid and legally enforceable agreement as Section 22 of the ECT Act provides that contracts concluded wholly or partly by way of data messages are valid in law.

Emojis are here to stay. So be careful when using an emoji as a form of expressing acceptance or acknowledgment because you can be held liable for damages if the receiver thereof believes that a contract has been concluded. In conclusion, be wary, the thumbs-up sign might just land you in some legal hot water #fireemoji #wateremoji.

For more information on ECT Act or electronic agreements contact SonicaW@kisch-ip.com