Consent through Gif’s, Emoticons and Emojis : Yes?

[By Shashwat Lohia & Shreya Saswati]

The authors are students of National University of Study and Research in Law, Ranchi & National Law University, Odisha.

 

Introduction

Rapid technological advancements haven’t always made it easy for the law to keep up. A recent judgement of the Canadian Courts (“Canadian Judgement”) has determined that the ‘thumbs-up’ Emoji can be utilised to create a legally binding contract. Allowing this action to be a method of deemed acceptance to a proposal has terrifying implications in the long run. Ambiguity is a result of a multiplicity of meanings followed by misunderstandings arising from such discrepancy strikes at the heart of Contract Law.

The presence of consensus ad idem or the ‘meeting of minds’ being an essential element governing the validity of a contract, may inevitably be overlooked with this new mode of acceptance. Of all the essentials of a contract, the intent to accept a proposal through adequate communication via the use of Emojis, Emoticons, and GIFs(“EEG”) is under scrutiny. This lacuna can be resolved through a better study of the intent of parties and their subsequent conduct revolving around consent in their digital contractual agreements.

Multiplicity of Meaning

Pictorial representations for communication are not new to the world. Ancient Egyptians had mastered communicating via cuneiform using hieroglyphics. In the past decade, due to the growth of technology and the parallel development of social media, there has been an upsurge in non-linguistic communication through the medium of EEGs. The problem arises when language and interpretation come to play. It is in this gap of intention that Emojis carry a multiplicity in the interpretation. The connotation they signify is greatly dependent on the culture of the parties in the conversation, as well as the common parlance and overall tone of a conversation.

It is interesting to note the discrepancy arising out of cross-platform and cross-device use of Emojis which inevitably renders many Emojis to be misidentified or show up as ‘unknown’ which leaves the conversation disputed. The Canadian Judgement is not the first (see here and here) development towards a ‘Law on Emojis’. However, it is one of the first to establish that a commonly denoted meaning behind an Emoji would suffice to prove the intent of the parties.

Essentials of a Contract, Intent, and the Modern Dilemma

The Courts of India have not adequately discussed the law of contracts taking place over mobile phones in the manner it has so evolved. This modern contract is formed with elements of contracts made by fax as well as telephonic conversation being galvanised due to instantaneous communication conducted over text messages. Of the essentials of a modern contract, the formative element which concludes the existence of a contract is acceptance. The courts have derived in multiple cases that so long as a contract is not vague, unreasonable and/or against public policy, it is held valid while considering the illustrative situations under Section 8 of the Contracts Act, 1872. However, a unique type of contract that does not explicitly direct one is the unilateral contract.

The communication of assent or acceptance for a contract may mislead either party. However, EEGs used sarcastically or otherwise may not directly imply acceptance, which therefore leads to no consensus ad idem. Thus, the modern dilemma is understanding when there is intent present. The ‘core’ of a contract[i] is formed by the basic, most fundamental aspect of the agreement and is generally then bound by caveats and exceptions to form a commercial contract as we may imagine it to be. These caveats are rendered irrelevant when considering whether the contract was formed or not. When there is an intention, this ‘core’ of the contract is agreed upon and therefore held valid.

Implied contracts in the Indian Contract Act, 1872 have been well discussed by the Law Commission of India[ii]. The Commission has emphasized that a contract would also be binding by the beginning of the performance of the offeree, which creates unilateral contracts. The Canadian Judgment and the facts of the case therein support this. Therefore, it would be best to conclude that a contract so formed by EEGs would be a unilateral contract subject to performance with a pre-existing relationship between the individuals. A judgement of the Israeli Courts has followed this rule without directly averring to it.

Analysis

The Canadian Court’s reasoning behind allowing acceptance by way of the thumbs-up Emoji was based on the premise that consensus ad idem has been reasonably reached from a bystander’s viewpoint upon examining the entire conversation. Thus, implying a requirement for a pre-existing relationship between the parties to form an essential aspect of this modern contract. A contract is deemed voidable if either of the parties hasn’t given free consent or has misinterpreted the terms of the contract.

Such informally acknowledged contracts, although convenient, are quite unreasonable in the long run due to a higher chance of misinterpretation by either party and a lack of commercial certainty. A GIF sent by one party with the intention of rejecting the other party’s offer might easily be misinterpreted as acceptance on the other end, rendering the entire contract voidable.

Beyond the Law of Contracts

Accepting this new form of consent to be valid would open new channels of litigation, both civil and criminal. The provisions of the penal laws (e.g. Criminal Conspiracy) could greatly be misused against people. Any sarcastic use of EEGs can easily be misinterpreted as an agreement to conspire. The essentials of an agreement and that of Criminal Conspiracy are similar, as they both require agreement to do an act or omit a thing via a meeting of minds and an object. The point of distinction is whether the object is lawful or not.

Common intention could be easily established in such cases, wrongfully implicating innocent parties who simply replied or reacted to the text, not knowing that they implied assent. At the same time, entirely limiting the laws from accepting such agreements would be wrong, as genuine agreements to conspiring might be cloaked under the use of such visual aids. Therefore, it would be essential to consider the facts and circumstances of each case.

Conclusion

While it may be prudential to create well-written and express agreements, the potential of contracts over modern means of communication are not null. This directly implies that the law would better function in addressing ex-post effects of contracts so deemed valid via EEG-consent. It is possible to reduce miscommunication to aid in understanding communication clearly laid out rules and regulations, however, due to the nature of human language , it is not possible to eliminate them completely. Thus, it becomes prudential to consider not only intention but also the facts surrounding it which play an important role in the creation of a contract. This test of reasonability based on the principles of just, fair and equity creates a preliminary yardstick for a more flexible contract regime which safeguards the rights of both parties.

 

[i] A. Singh, Contract and Specific Relief 215(EBC, 12th edn.2017).

[ii] Law Commission of India, “13th Report on Indian Contract Act, 1872” 17 (September, 1958).

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