Can a thumbs up emoji be as valid as a signature and bind you into a contract? Sending a heart emoji from a senior employee to his junior constitute sexual harassment at work- place? Or, sending a gun or knife emoji be construed as a threat to life ? Well, interpretation matters. From US to UK, New Zealand, France and back home in India — different interpretations of the small illustrated characters, used to express emotions, activities or objects — are ending up in legal battles, with some countries using it as evidence. The latest to join the list was the court ruling in Canada where the Judge observed that a ‘thumbs up’ emoji is as valid as a signature and ordered a farmer to pay over 61,000 USD for an unfulfilled contract! He argued that courts need to adapt to the “new reality” of how people communicate.
THE EMOJI DILEMMA
In the absence of any Indian precedent or legislation on this matter, says Supreme Court advocate Kushank Sindhu, it has become crucial for individuals and businesses to exercise caution during commercial negotiations. “It would be wise to be more thoughtful in our digital interactions and adopt a more measured approach when using emojis in contractual discussions,” he cautions. As communication patterns evolve, it is only natural course of progression that emojis also find their way into the legal system, he feels.
EMOJI WOES
If the thumbs-up emoji has triggered a debate for being offensive or vulgar in the Middle East, a smiley face emoji is taken as sarcasm in China. Back home in India, the middle finger emoji was seen as obscene. It led a Delhi based lawyer Gurmeet Singh to send a legal notice to mobile messaging app WhatsApp, asking it to remove the “middle finger” emoji within 15 days. He argued that showing the middle finger is not only illegal but an obscene, invasive and lewd gesture, which is an offence in India. In the realm of etiquette, maintaining professionalism in business and formal communication is essential, despite the prevalence of social media and messaging platforms, feels Sonia Dubey Dewan, AICI CIP and founder of Indian School of Image Management.
CONTRACT FORMATION
In Indian jurisprudence, contract formation requires a clear offer and unequivocal acceptance, with the intention to create legal relations. The Indian Contract Act, 1872 does not explicitly address the use of emojis or electronic communication in contract formation. However, courts in India have recognized the validity of contracts formed through electronic communication such as emails and instant messaging. Indian courts through their judgements and rules of procedure have largely tried to keep up with the updated means of communication and also have recognised Whatsapp to be a valid mode of service of summons, in certain circumstances. “It is, therefore, important for the people entering into commercial negotiations, to be careful about how they communicate and what they put in oral and written communications including Whatsapp conversations and emails,” says Kushank. He says the parties must be aware of the potential legal consequences associated with the use of emojis and be mindful of the clarity of their intentions to avoid disputes and ensure e n f o r c e a b i l i t y. “One alternative for parties entering into commercial negotiations is to execute a document in advance which should outline the terms and procedure on the basis of which negotiations before entering the contract are to be carried out. This should avoid confusion and ambiguity in respect of issues such as communication of a valid acceptance,” says Kushank.
EMOJI SHOWS UP IN MADRAS HC
Prior to the said Canadian ruling, the High Court of Madras was seized with a matter where a complaint was filed against certain individuals for posting the emoji ‘smiling face with tears’ on a whatsapp group for offence under Tamil Nadu Prohibition of Harassment of Women Act in 2018. The High Court, in this case went into the interpretation of the emoji and observed that emojis are posted to convey numerous feelings. Emoji is used when something is funny or laughable. The court also observed that when it is accepted that an emoji is sent to express ones feeling about something, it cannot be treated as an overt act on others. With these observations, the High Court dismissed the Complaint with a caveat that while use of the emoji may not make out a case for harassment, it indeed has offended the complainant and condemned such an act. “The court’s ruling in this case provided valuable insights into the legal interpretation of emojis and their implications in online communication. It emphasised that the mere use of an emoji, such as a laughing face with tears, in a conversation on the WhatsApp group does not automatically constitute an offence. It emphasized the need for a balanced approach in analyzing online communication after considering the context, intent, and potential harm caused,” points out Kushank. However, when the same is discussed in the realm of civil and commercial law jurisprudence, the interpretation and the impact of use of emojis may vary.
ADMISSIBILITY
Offering her perspective, senior IPS officer Shikha Goel doesn’t think emojis alone can be a cause for legal action. “The contents of electronic messages and emojis are not admissible in a court of law as primary evidence, if they are produced without: a) the device (phone, computer etc, which originally recorded such content) or B) with the certificate under Section 65B of the Evidence Act required for admission of electronic evidence. Further, says Shikha, even if such electronic messages are admissible as evidence, the contents must be proved during the trial by evidence in chief and cross-examination. “Thereafter, the contents will be read and understood cumulatively to decipher whether there was a concluded contract or not,” points out Shikha, an Additional DGP rank officer, who presently heads the Women Safety Wing of the Telangana state police. Citing a judgment (in Ambalal Sarabhai Enterprise Ltd. v KS Infraspace LLP Limited and another, dated 6 January 2020), Shikha says the Supreme Court held that WhatsApp m e s s a g e s , which are virtual verbal communications are a matter of evidence with regard to their meaning and its content to be proved during the trial by evidence in chief and cross- examination. “The e-mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not,” says the police officer, referring to the judgment.
DETERMINABLE EVIDENCE
Indian Courts and Investigating Authorities have also accepted use of emojis as valid and determinable evidence for deciphering the intention of the user, more particularly in cases of sexual abuse and other criminal cases, informs Shraddha Gupta, advocate and co- founder of Accord Juris. “Considering the wide use of emojis, globally forensic linguists are called on to offer expert testimony on use of emojis as evidence. However, are we ready yet? I would say No,” she says. Elaborating further, she says the predicament surrounding this is lack of uniform interpretation in our multicultural society. “The interpretation varies from person to person, it can also vary by culture, region, generation, profession etc. I may send a ‘thumps up’ as acknowledgement of receipt of a document or acknowledging the effort of the person in sending me the document and it may be construed as an acceptance under the India Contract Act. This will open floodgates of litigation,” points out Shraddha, senior associate, The Law Chambers. While she feels it is necessary that we give credence to these wordless mode of communication, in her opinion, until the interpretational guidance on these are streamlined, wordless mode of communication should only be taken into consideration as secondary evidences, i.e. corroborative of intent instead of primary evidences.
MISUNDERSTANDINGS
“Emojis can easily create misunderstandings as everyone interprets them very differently. Regardless of the channel used, all business communication should adhere to a consistent standard of professionalism, ensuring clarity and minimizing confusion,” says Sonia. By following these basic etiquettes, effective communication can be fostered in both business and formal settings. She says it is a good practice to consider the context to guide our approach, adapting the tone and style to match the nature of the interaction, especially when communicating with people in authority or a business or formal communication. “To navigate the emoji dilemma, a basic rule of thumb is to ask yourself, would you include them if you were writing to this person over an email or a formal letter? If the answer is no, please don’t use emojis in similar contexts, even WhatsApp, chats, and messenger services,” she suggests.
