A Canadian judge has ordered a farmer pay CAD$82,000 (AUD$92,000) after ruling a “thumbs up emoji” he used in a text message exchange was just as valid as a signature, declaring that courts should “be ready” for these new digital challenges.
The bizarre case was heard in June 2023 in the Court of King’s Bench in the Canadian province of Saskatchewan. It has now attracted international attention and established a unique precedent for the “internet age”.
“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,” Justice T.J Keene said in his summary judgment.
According to court documents, Kent Mickleborough, a grant buyer for crop inputs company South West Terminal (SWT), took Achter Land and Cattle (a farming corporation and one of the businesses’ long-term clients) to court for breach of contract.
In March 2021, Mickleborough sent a bulk text message to his suppliers, including Chris Achter (the owner for Achter Land and Cattle), seeking to buy flax for delivery in October, November or December of that year.
Following the text, Mickleborough had a phone call with Achter, which the judge later found must have included a verbal agreement. Mickleborough then drafted a contract for Achter to sell SWT 86 metric tonnes of flax at a price of CAD$17 per bushel (which amounts to CAD$669.26 or AUD$753 per tonne) with a delivery period listed as “nov”.
Mickleborough signed the contract, took a photo on his phone, and sent it to Achter along with the text message “Please confirm flax contract”. Achter texted back a “thumbs up” emoji
But according to the summary judgement, Achter never delivered the flax in November. By that time, prices for the crop had increased.
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.
Justice T.J Keene
Court documents reveal Mickleborough had done “at least four” other contracts with Achter via text, but usually Achter responded with an “ok”, “yup” or “looks good”.
In his affidavit, Achter said the “thumbs up” emoji was simply a confirmation that he had received it.
“The thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax Contract. The full terms and conditions of the Flax 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,” Achter said.
“I did not have time to review the Flax Contract and merely wanted to indicate that I did receive his text message.”
Counsel for Achter argued in court that by allowing “a simple thumbs up 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”.
The Counsel argued that courts would be “inundated with all kinds of cases” if the court established the thumbs up emoji could take the place of a signature.
The judge, who at one stage used a dictionary.com definiton of a “thumbs up emoji”, dismissed the Counsel’s assertions.
“It appears that Chris [Achter] does not accept SWT’s contention that a thumbs up emoji means something to the effect ‘I agree’ or ‘I accept’ or some sort of positive affirmation … This has led the parties to a far-flung search for the equivalent of the Rosetta Stone in cases from Israel, New York State and some tribunals in Canada, etc. to unearth what a thumbs up emoji means,” he said.
“This court readily acknowledges that a 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’.”
The judge ruled Achter owed SWT $82,000 plus interests and costs for failing to deliver the flax.
“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 thumbs up emoji,” he said.
“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.”