What is the legal meaning of an emoji?

Emojis come across as innocent and amusing pictures until you litigate with them.

Most documents are still signed with wet signatures. Others adopt a more technical approach using online signing platforms. The more enterprising are using emojis to sign their documents.

Legislation prescribes that certain documents need to be evidenced in writing. Other agreements are signed as deeds or as witness statements with an appropriate statement of truth. Each of these is signed by the maker giving their consent to the document contents. The courts have manoeuvred themselves into ‘cut and paste’ signings and email footers as signatures. Cases are now turning to pixelated emojis, for example Vardy v Rooney [2022] EWHC 2017 (QB) and GKE v Gunning [2023] EWHC 332 (KB).

Such cases examine the use of emojis as consenting signatures. What is seemingly omitted is the pixel construction of the emoji. As with any developing area of law, the use of emojis now requires a more detailed examination.

Wet signatures

Forged signatures, such as the love letter to Malvolio in Shakespeare’s Twelfth Night, show the ease with which deception arises. Maria’s fake letter tricks Malvolio into thinking Olivia is in love with him. Section 1 of the Forgery Act 1981 says: ‘A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.’ The guilt of Maria may be questioned, but the forging of a device or signature to deceive is not.

Detecting forged signatures involves examining the signature’s construction, checks for letter inconsistencies, its written fluidity and irregularity in stroke pressure. As yet, legal cases have not investigated the pixelated make-up of emojis. The courts seemingly accept an emoji’s appearance without investigating the construction. Wet signature investigation aims to confirm the signature’s validity. This verification process has yet to be applied to emojis.

Electronic signatures

An electronic signature links someone to the document’s contents and shows an intention to be bound by, and consent to, the contents. This electronic signature is recreated as a distinctive pixel pattern or attached as a picture. The 2019 Law Commission report Electronic execution of documents says: ‘An electronic signature is something associated with an electronic document that performs similar functions to a manual signature.’

The courts have determined electronic signatures to be pictorial representations of someone’s signature or their email footer. In Njord Partners SMA-Seal LP v Astir Maritime Ltd [2020] EWHC 3474 (Comm) the court held that electronic signatures are a ‘picture or image… inserted into the document’. Investigating these pictures involves, as with wet signatures, examining the original signature or picture to detect a forgery. It is not, as Emirates NBD Bank PJSC v Saadat-Yazdi [2023] EWHC 747 reminds us, just accepting the image which is presented. The wet signature in forgery cases is never unequivocally accepted until it undergoes forensic analysis. The same applies to the electronic signature, the email footer and now to the emoji.

AI images

With the advent of artificial intelligence, images are now easily manipulated. Detecting an AI-altered image against the original requires forensic analysis. The analysis aims to determine if a deceit has been perpetrated. An emoji is another pixelated image now usable to sign documents. Using AI, the original emoji image may be adapted by the fraudster seeking an advantage.

Deeds

Deeds are witnessed documents showing an event or set of terms. Creating an electronic signature connects two pieces of data together and is theoretically not something possible of being witnessed. It is the signatory’s actions or behaviour in making that connection which forms the deed and subsequent witnessing. For example, the image of a typed name or email footer amounts to a signature, the action of attaching the image to the document satisfies the electronic signature rules. The Law Commission report said such an electronic communication is capable of being a signature. What amounts to an electronic signature was tested in the Canadian case of South West Terminal Ltd v Achter Land & Cattle Ltd [2023] SKKB 116, where the 👍 emoji amounted to the intention of confirming the contract.

Emojis in action

What was the individual’s intention of using this particular emoji? Signing using the 😀 emoji might signify acceptance, although depending on the emoji features and context there is no guarantee of this. If receiving the 😡 emoji, is this acceptance or does it mean something else, such as ‘It’s kind of OK but there are bits I hate’? Emojis as signatures are open to interpretation.

Harrison v Cameron [2024] EWHC 1377 (KB) shows how the courts will recognise the use of online texting apps and how these can shape the interpretation of an emoji. South West Terminal Ltd demonstrates this complexity. One of the parties habitually used 👍 to represent an agreement. The reply to a significant email to the contractual offer contained the thumbs-up emoji, so was the party accepting? This became the argued point. The court held that it was, because 👍 was based on previous acceptances using the same emoji. The judge held that the ‘courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like’.

In Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte Ltd [2024] EWHC 255 a 👍 emoji was confirmed by the court as acceptance of contractual terms. However, context remains important. Leander CB Consultants Ltd v Bogside Investments Ltd and Alan McLeish CA4/22 [2024] CSOH 9 examined the use of different emojis, including a laughing/crying emoji (😂) and its context.

Following the courts determining that 👍 denotes acceptance, there is still the ‘depending on context’ to manage.

What is clear is that 👍 is an accepted legal form of language signifying acceptance. Does, therefore, a smiley face (😃) also denote acceptance, while a broken heart (💔) signifies disapproval of contractual obligations? Is 👎 saying ‘I do not agree’?

Emoji fraud

Just as wet signatures are unique, so are emojis. However, depending upon the platform used (Android, iOS, MacOS, Windows, Linux or ChromeOS) emoji pixelisation varies. This is most likely to do with potential copyright violation. And therein lies a problem. As the Law Commission report said, ‘electronic signatures are more susceptible to fraud than handwritten signatures’.

Most people have a unique email address which gives the presumption that it must have come from them. This is a slim presumption.

Linking a computer to the internet provides a unique address called an Internet Protocol (IP) address consisting of numbers and/or letters. This enables a trace to be made of who sent the email. Using readily available software, an IP address can be masked. The computer could have been hacked or otherwise manipulated. This can give the impression an email originated from a person when it did not. The use of a generic emoji adds to the risk of fraud. While there is some emoji variation depending upon the operating platform used, they are pretty similar.

If concerns arose with a wet signature it would undergo forensics analysis determining whose signature it is. But using a generic emoji is tantamount to using a rubber stamp sitting on an open desk to sign a contract. A personalised emoji would be more appropriate.

Personalised emojis

It is possible to create an individual emoji not dissimilar to an individual’s signature. Legally, it is the ‘action’ of using the emoji which remains important – did they intend to use this pixelated pattern by way of consent? As signatures are personal, ideally the emoji should also be personal to the signer. If concerns arise, the emoji can be checked to see if it was this person who consented and not someone else using a generic emoji. This would also give clarity as to whether this is the pixelated emoji pattern they would usually use and is this the same as the one in question? For example, if using this emoji  which is the fake? A or B?

De-pixelising emojis

To say an emoji means one thing would frustrate half the world’s texters. The other half would say ‘of course it means this’. But what’s the legal meaning?

Unlike a wet signature which has limited interpretations, an emoji can create in the mind of the recipient a different interpretation than that envisaged by the sender. Equally, just because an emoji is used does not necessarily mean it came from one particular person. As signatures are unique to individuals, legal advisers may wish to advise clients on the use of individualised emojis unique to them to demonstrate that acceptance came from one individual and not someone else.

The availability of generic emojis places contractual offers and acceptances at risk. The more personalised emoji removes an element of doubt as to a party’s identity. It would equally assist the court with future cases when determining the identity of the emoji sender.

Generic or personalised emoji?

In most instances a generic emoji should suffice. However, there are circumstances where a personalised emoji would be more appropriate, such as significant contracts, divorce cases, deeds, lasting powers of attorney, wills or witness statements.

Legal advisers may wish to consider the following when advising on emoji use and potential challenges.

• If the document is being challenged, which software or computing platform was used to insert the emoji? How has this been confirmed to show that it was a particular computer with the correct IP address which sent the emoji?
• What previous use has this person made of this particular emoji and why?
• Is the person using this emoji in a generic or specific fashion in this given context to send a certain type of message?
• What is the interpretation that person places on this emoji at this time and has this changed over time using this particular emoji? During the course of negotiations where this emoji has been used, has it been used to give an alternative impression?
• Was a generic or personalised emoji used? Why was a personalised emoji not used?
• If a personalised emoji was used, what is the intended meaning? Was this the intended meaning of the person sending this particular personalised emoji? Are there other interpretations which could be given or drawn from this emoji and what are they?

 

Craig Ward is a solicitor at Linley James Solicitors, London