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Think before you use certain Emojis during contract negotiations

Online contracting comes with its own set of risks.  One of the potential risks is the use of emojis, such as the Thumb’s Up Emoji or the shaking hands during the engagement between the contracting parties.  In a recent Canadian case: South West Terminal Ltd and Achter Land & Cattle Ltd, the judge has ruled that the “thumbs-up” emoji is just as valid as a signature.

Emojis are often used to convey emotions and reactions in digital communication, but they can create ambiguity and uncertainty when it comes to contract formation. Sending or receiving emojis, like the Thumb’s Up Emoji can be risky as it may give the impression that the sender agrees with the content of the contract and fall 100% within section 13 (5) of the Electronic Communications and Transactions Act 25 of 2002, which states:

Where an electronic signature is not required by the parties to an electronic transaction, an expression of intent or other statement is not without legal force and effect merely on the grounds that (a) it is in the form of a data message; or (b) it is not evidenced by an electronic signature but is evidenced by other means from which such person’s intent or other statement can be inferred.”

How can an organisation mitigate the risk?

Organisations should consider incorporating specific measures in their online contracting processes. In their email / online legal notice or on their website’s Terms of Service, they can include explicit provisions clarifying that the use of emojis, including the Thumb’s Up Emoji, is not considered as a valid form of consent for contract formation or confirm that an online contract will only be formed subject to specific actions and/or conditions, for example, they can emphasize the need for users to provide explicit written or electronic signatures, or to engage in specific affirmative actions, such as clicking a designated “Accept” button or checking a box indicating agreement. By clearly outlining these requirements, clients can reduce the likelihood of disputes arising from the interpretation of emojis and establish a more robust framework for contract formation in their online transactions.

DKVG makes available the Website Compliance services to its clients to mitigate the above-mentioned risks.  If you are interested, then email us on: websitecompliance@dkvg.co.za or phone us on 021 914 4020 and speak to Claire Gibson-Pienaar or Gerrie van Gaalen.