Brainiac On Banjo: The Law and The Emoji

Smiley face showin’ teeth. It ain’t nothing wrong. Strong among emoji ‘cause you know we growing strong. Heart eyes to my friends. I won’t bother ya. “Emoji,” written by Brooklyn Queen.

Our friends up in Canada have weighed in on an issue impacting every computer user in the known universe: can emojis be legally binding? This begs the question “should they?”

According to the Apple Insider newsletter a couple days ago, the King’s Bench for Saskatchewan stated/ruled they are. Yes, this was published in an Apple newsletter but, no, it affects people who deploy emojis on all sundry platforms.

“I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract,” the victim’s attorney told the court. “I did not have time to review the … contract and merely wanted to indicate that I did receive his text message.” Justice Timothy Keene ruled the thumbs-up 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.”

Not that I have a vote in this, but I agree with the attorney. His argument makes complete sense to me. He would have had to know in advance that the thumb’s-up emoji was likely to be determined as acquiesce to the terms expressed in a text message. Even in 2023 that’s still a leap and, in this case, it seems quite clear that the lawyer was responding to the receipt of the text and not to the terms of an incomplete contract. This was a rush to judgment that, literally, was made on virgin turf.

The idea of a “non-traditional means” of signing a contract is quite interesting. We allow, at least here in the States, a properly faxed signature to be accepted as consent. However, that is a facsimile of a real signature on or attached to a real contract. This was an emoji, one of hundreds, that was a response to a text about an incomplete contract.

The emoji got its start in 1982 when computer scientist Scott Fahlman figured out that text-based symbols such as “:-)” and “:- (” could be used as linguistic shortcuts when typing on a computer keyboard. This, of course, was a less formal process 40 years ago. In 1999 when Shigetaka Kurita created the first emoji as we now know them, his symbols measured a mere 12 by 12 pixels. You really can’t convey much in 144 dots, but since then their definition increased significantly and, I gather, the capacity for wanton inference increased along with it.

If the lawyer’s client was in court and farted before the judge, would he be held in contempt? After all, emojis merely represent thought and concept and farting is a progressive action. If we can infer that a thumb’s-up icon connotes contractual acceptance, can’t we also infer the in-court fart to be a rather rude commentary on the judge’s behavior. As King Arthur was told in Monty Python and the Holy Grail, “I fart in your general direction. You mother was a hamster and your father smelt of elderberries!” and Arthur wasn’t merely a judge, he was the bloody king of the Britains!

Does this mean that, if I were given a contract and I wrote “go fuck yourself” all over it, that would be perceived as a rejection of the contract? I ask because I think I may have done that… perhaps a couple times on the backs of checks. But I’ve never done that in Canada.

As I eagerly await an updated English-to-Emoji dictionary, I am concerned about the continuous growth of new emojis and what the various courts will perceive as their meaning and the intent behind such use. Apple’s new operating system updates often include brand new emojis, and the Windows platform does the same. Occasionally, I have a hard time discerning their meaning but, like the rest of our language, context is critical to understanding.

I can’t help but wonder if this means that happy poop emoji indicates rejection of a contract. After all, poop is shit and shit is generally perceived as a bad thing — outside of Germany, of course. However, this poop is smiling and that generally indicates approval.

I guess the courts are going to have to rule on this shit. I wonder what the Christian Nationalists who overwhelm America’s Supreme Court are going to do.