Browse: Home » 2023 » July » A Thumbs-Up Emoji Costs a Canadian Seller $82,000–

South West Terminal v. Achter Land

A Thumbs-Up Emoji Costs a Canadian

SUBSCRIBE TO BLOG VIA
Seller $82,000–South West Terminal v. EMAIL
Achter Land
Enter your email address to
subscribe to this blog and
July 2, 2023 · by Eric Goldman · in E-Commerce, Emojis, Licensing/Contracts
receive notifications of new
posts by email.

🍁
[A special post for my Canadian friends as a belated celebration of Canada Day.
]
Email Address
This case involves a Canadian transaction for flax. The court summarizes:

Subscribe
Mr. Mickleborough had a contract drafted for Achter to sell SWT
86 metric tonnes of flax to SWT at a price of $17.00 per bushel
(which amounts to $669.26 per tonne) with a delivery period
listed as “Nov”. Mr. Mickleborough applied his ink signature to
the contract, then took a photo of the contract using his cell Search this site...
phone. Mr. Mickleborough then texted the photo of the contract
to Chris Achter at 306-264-XXXX, along with the text message:
“Please confirm flax contract”. Chris Achter texted back from 306- CATEGORIES
264-XXXX a “thumbs-up” emoji. [Eric’s note: I took out the last
four digits of Achter’s phone number, though it’s in the opinion.] Adware/Spyware (191)

Content Regulation (1,275)

The parties had a course of dealing that included Achter apparently approving
orders by text message in one-word replies. Achter didn’t deliver the flax, and Copyright (807)
prices went up. SWT claims damages of $82k Canadian.
Derivative Liability (1,390)

Achter offered this explanation of his use of the thumbs-up emoji: Domain Names (167)

E-Commerce (559)
the thumbs-up emoji simply confirmed that I received the Flax
Emojis (52)
contract. It was not a confirmation that I agreed with the terms of
the Flax Contract. The full terms and conditions of the Flax Evidence/Discovery (163)
Contract were not sent to me, and I understood that the complete
contract would follow by fax or email for me to review and sign General (164)

Internet History (233)

***
Licensing/Contracts (681)

The judge initially turns to the Dictionary.com definition of the thumbs-up Marketing (706)
emoji: “it is used to express assent, approval or encouragement in digital Patents (92)
communications, especially in western cultures.” The judge then says that
definition “comport[s] with my understanding from my everyday use – even as Privacy/Security (646)
a late comer to the world of technology.” I can understand why the judge Publicity/Privacy Rights (266)
wanted to sanity-check an online dictionary, but I would have gotten worried if
the judge had let his first-hand intuition override the dictionary. Search Engines (593)
[FWIW, Dictionary.com doesn’t Spam (212)
attempt to define all emojis, but it’s
one of the most authoritative Trade Secrets (88)
sources for the emojis it does Trademark (741)
define.]
Trespass to Chattels (123)
The court then says the course of Virtual Worlds (55)
dealing is decisive:

I am satisfied on the
balance of probabilities
that Chris okayed or
approved the contract just
like he had done before

👍
except this time he used a
emoji. In my opinion,
when considering all of
the circumstances that
meant approval of the
flax contract and not
simply that he had
received the contract and
was going to think about
it. In my view a
reasonable bystander
knowing all of the
background would come
to the objective
understanding that the
parties had reached
consensus ad item – a
meeting of the minds –
just like they had done on
numerous other
occasions.

The court then confirms that the thumbs-up emoji constitutes an electronic
signature under Canadian law:

Counsel for Achter remonstrates that allowing a simple 👍 emoji

to signify identity and acceptance would open up the flood gates
to allow all sorts of cases coming forward asking for

👊 🤝
interpretations as to what various different emojis mean – for
example what does a emoji mean or a emoji mean, etc.
Counsel argues the courts will be inundated with all kinds of
👍
cases if this court finds that the emoji can take the place of a
signature. This appears to be a sort of public policy argument. I
agree that this case is novel (at least in Saskatchewan) but
nevertheless this Court cannot (nor should it) attempt to stem the
tide of technology and common usage – this appears to be the
new reality in Canadian society and courts will have to be ready
to meet the new challenges that may arise from the use of emojis
and the like….

This court readily acknowledges that a 👍emoji is a non-

traditional means to “sign” a document but nevertheless under
 these circumstances this was a valid way to convey the two
purposes of a “signature” – to identify the signator (Chris using
his unique cell phone number) and as I have found above – to
convey Achter’s acceptance of the flax contract.

The court awarded the buyer’s request of $82k of damages.

***

I’ve previously blogged two U.S. cases interpreting the thumb’s-up emoji:

In Lightstone v. Zinnex, the court denied summary judgment about whether a

texted thumbs-up emoji created a contract because the prior text messages
hadn’t clearly signaled a meeting of the minds. The Achtel case is different
because the surrounding messages didn’t signal any unresolved issues, and the
parties had a past course of dealing consistent with contract formation.

In Bardales v. Lamothe, the court held that the use of a thumbs-up between
estranged parents didn’t mean the parent acceded to the other parent moving
out of the country. This result makes sense both because of the irresolute
nature of the text message stream and the high stakes of the question.

In my post on the Lightstone case, I enumerated 37 U.S. opinions referencing

the thumbs-up emoji as of October 2022. The number is up to 45 now.

***

One way of restating this case is that a thumbs-up emoji cost the seller $82k.
Use your thumbs-up wisely…but that’s good hygiene for all emojis, not just the
thumbs-up. Plus, remember that the thumbs-up gesture can have offensive
connotations in some countries, and GenZ thinks thumbs-up emoji usage is
passive-aggressive.

The court did a nice job interpreting the emoji, and did an even better job by
showing emojis in the opinion (though the judge did not necessarily confirm
that the emoji depicted in the opinion was identical to the one that the sender

👍
or recipient saw). Shoutout to Judge Timothy Keene on the King’s Bench in
Swift Current, Saskatchewan. Overall, I give this ruling a !

Case Citation: South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII)
(June 8, 2023)

Share this:

 Email  Print  Facebook  LinkedIn  Twitter

 Tumblr  Pinterest  Pocket  Reddit

1 Comment 
1 Login

Join the discussion…

LOG IN WITH

OR SIGN UP WITH DISQUS ?

Name

 1 Share Best Newest Oldest

John Gregory − ⚑
16 days ago

The decision seems clearly right to me. The law does not require a
signature, so the emoji just had to show assent - though it could have
been a signature if intended to be, and it would have been
reasonable to understand it as one if needed.

The course of dealings allowed the court to know that the parties
knew the terms of the contract, even though not sent in full this
time.

0 0 Reply • Share ›

Subscribe Privacy Do Not Sell My Data

← Why I Oppose the California Journalism Protection Act (the Short Version)
European IP Office Denies Trademark Registration for “I Love You” Emoji 🤟→

Copyright © 2023 Technology & Marketing Law Blog