In a precedent-setting decision, a Canadian court determined that the common "thumbs-up" emoji (or emoticon) carries the same weight as a signature, demonstrating the courts' necessity to adjust to the "new reality" of modern communication methods. The ruling arose from a case in which a farmer was ordered to settle a R1.1million debt for a contract that wasn't delivered.
This judgement was delivered by the Court in Saskatchewan, which heard the case involving a grain buyer and a farmer. The grain buyer broadcasted a text message to clients in March 2021, expressing his interest in acquiring 86 tons of flax for a certain price. He exchanged phone calls with the farmer, and forwarded him an image of the contract for the flax delivery scheduled for November, asking the farmer to "please confirm flax contract" in the text. The farmer responded with a thumbs-up emoji, but failed to deliver the flax by November of that year – and by that time, prices for the crop had increased.
The ruling has prompted some curiosity regarding whether the thumbs-up emoji would carry the same weight under South African contract law. Presently, South African law has no specific case law addressing the use of emojis to indicate agreement or the intention to be bound by a contract, nor is there a clear definition of emojis under the country's laws.
However, South Africa's Electronic Communications and Transactions Act (25 of 2002) (ECTA) may shed some light on this issue. Under the ECTA, an emoji can be classified as "data", which refers to any electronic representation of information, and a "data message" is defined as data produced, sent, received, or stored electronically.
According to Section 22 (1) of the ECTA, an agreement is not devoid of legal validity merely because it has been established between parties through data messages. Further, Section 24 suggests that a data message's declaration of intent or other statement isn't void of legal substance simply because it is in the form of a data message or isn't endorsed by an electronic signature, but by other means from which the person's intention or other statement can be deduced.
While South African courts have yet to scrutinize the use of emojis as a means to express intent, the ECTA provisions and the courts' duty to apply international law to their verdicts suggest that South African courts could follow the Canadian court's lead should a similar case arise.
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