As technology has evolved, so too have our methods of communication. In 1999, Japan introduced the first emoji – a simple image, symbol, or icon intended to convey emotion. These symbols quickly became wildly popular worldwide and, over the past 26 years, have become a regular feature in our digital lexicon. This shift in communication does however raise a critical question: do these modern forms of communication influence our legal framework?
The British Columbia Supreme Court in Ross v Garvey, 2025 BCSC 705 (“Ross”), was not persuaded that modern methods of communication, such as emojis, have altered the legal requirements for concluding contracts, particularly those involving the sale of immovable property. The case concerned a residential property being sold by two brothers (the “sellers”) to a real estate developer (the prospective “purchaser”). During negotiations, the prospective purchaser emailed a signed offer to the sellers, which was subsequently rejected. The sellers then emailed a modified counteroffer, which the purchaser accepted by signing and returning the offer, requesting the sellers’ signatures. Although neither of the sellers physically signed the document, one of them responded to the email thread with a thumbs-up emoji. The sellers later accepted an offer from a third party, prompting the previous prospective purchaser to approach the court, arguing that a valid agreement had been formed based on the emoji response and that the original sale should proceed. The court, however, disagreed.
In contrast to the precedent established by the Saskatchewan Court of Appeal in Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115 (“Achter Land”), the court in Ross held that, in the context of the sale of immovable property, a thumbs-up emoji does not constitute a valid signature, nor does it demonstrate the requisite intention to conclude a binding agreement. This outcome underscores the differing approaches to contractual formation depending on the nature of the transaction. While in Achter Land the use of an emoji was deemed sufficient to indicate consent and contractual intent within the context of commercial bargaining and the sale of goods, the court in Ross reaffirmed the stricter formal requirements applicable to contracts for the sale of immovable property.
The question of whether an emoji response could satisfy the requirements for concluding a valid contract in South African law would typically be met with the familiar “It depends”. First, one has to consider whether an emoji would constitute a valid signature in terms of South African law. The Electronic Communication and Transactions Act 25 of 2002 (“ECTA”) applies to electronic transactions and data messages, and provides guidance on the use of electronic signatures (see our previous article on this topic here). In terms of Section 13(3) of ECTA, even if the parties to a contract have not agreed to the type of electronic signature to be used, such a signature will be valid if:
- A method is used to identify the person and to indicate the person’s approval of the information communicated; and
- Having regards to all the relevant circumstances at the time the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated.
Furthermore, section 38(1) of the ECTA sets out additional criteria for the accreditation of an advanced electronic signature, with these criteria also serving as useful indicators for assessing the validity and reliability of such a signature:
- Is uniquely linked to the user;
- Is capable of identifying the user;
- Is created using the means that can be maintained under the sole control of the user; and
- Will be linked to the data or data message to which it relates in such a manner that any subsequent change of the data or data message is detectable;
- Is based on the face-to-face identification of the user.
The requirements as set out in ECTA highlight the unlikelihood that an emoji will be considered a signature, as one cannot uniquely identify/establish a direct link to the identity of the user, nor is the process of selecting and sending an emoji one that is maintained solely under the control of the user.
However, South African courts have yet to grapple with this specific issue, and it is not unlikely that, should such a case arise, guidance may be drawn from Canadian decisions, given its widespread influence on the development of South African legal principles. In Achter Land, the court held that given the history between the parties of concluding contracts over WhatsApp, the fact that this form of contract negotiations was not uncommon in the particular industry, and that the emoji was a direct response to a text message containing a contractual offer, were factors indicating that there was sufficient intent to support valid contract formation. It is therefore not unreasonable to argue that the door to emoji-based contract formation in South Africa is not entirely closed; with a sufficiently broad interpretation of ECTA, and a hint of Canadian inspiration, there may still be room for a well-placed thumbs-up to seal the deal.
Secondly, one would need to consider the specific scenario and type of contract being formed. Could a scenario similar to Ross ever result in the use of an emoji being accepted as a valid means of concluding a sale of immovable property under South African law? The answer to the second question is far more clear-cut: no, one cannot alienate a property with a mere thumbs-up emoji. Section 4 of ECTA clearly states that the Act does not apply to any law which requires writing or signatures, particularly in respect of an agreement for the alienation of immovable property as provided for in the Alienation of Land Act 68 of 1981 (“ALA”). This is further reinforced in Section 2(1) of ALA:
- No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.
The above section therefore requires strict adherence to the statutory formalities, notably that the agreement must be reduced to writing, and that such an agreement must be signed in wet ink by the parties or their duly authorised agents. An emoji sent via electronic communication therefore cannot constitute a valid signature, nor can it convey the requisite intent to conclude an enforceable contact. The scenario that took place in Ross is thus one that we are unlikely to witness due to the explicit exclusion in ECTA as well as the prescribed formalities in ALA.
While emojis have increasingly found their way into modern communication – and as is evidenced by Achter Land, even contractual dealings – their legal standing in terms of South African contract law remains limited. For “low-risk” contracts, an emoji may, in the right context, slip through the digital cracks of ECTA and be treated as sufficient proof of intent to contract. After all, an emoji is not an ordinary symbol or a mark, but one capable of conveying emotion. From an interpretative perspective, a thumbs-up or smiley face may suggest enthusiasm, affirmation, or a willingness to proceed. However, where statutory formalities apply, notably with regards to the sale of immovable property, it remains unlikely that the law will evolve with the technological and digital communication landscape. Thus, when it comes to the alienation of land, the pen remains mightier than the emoji.
For more information or legal advice please contact our Intellectual Property, Data & Privacy Protection department.
Written by: Karli Scholtz
IT/IP Department – Tyger Valley