VIA DECCAN CHRONICLE:
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.
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