Emojis: thumbs up for efficient communication; thumbs down for misinterpreted meaning

Business relationships can be conducted through many different communication channels in today's world. Most of Gen Z don't know what a fax machine looks like and increasingly the use of text, WhatsApp and social media platforms are becoming the norm to make and develop relationships. Whilst this certainly makes communication almost instant, it's not without risk.

Informal communication styles can put employers at risk

Many businesses are familiar with the need to upskill and train their employees, particularly those in sales and procurement roles, so that staff understand the possible risk of inadvertently committing their organisation to purchase a product or agree to contractual terms either verbally, in a meeting or over the phone, or via an email exchange.

This risk often arises when businesses exchange copies of their standard terms, either on the back of a purchase order or via a link in an email, in order to confirm the terms sitting behind a particular order.

A similar risk arises when negotiating more complex contracts, but it's less prevalent in such circumstances because the applicable terms are usually set out in a stand-alone document, often a formal legal contract, which has a clear signature block to signify acceptance of the terms.

What are the legal implications of emoji use in business communications?

Alongside considering how the applicable terms are presented, organisations should also be mindful of the communication styles their staff use when selling or procuring products and services.

There is emerging case law in the USA and Canada which indicates that the more informal the style, the higher the risk of inadvertently committing to a binding contract. In the present world of speedy communication, this may go beyond one-line emails to familiar abbreviations in texts and now even emojis.

The latter caught out Achter Land and Cattle Limited (Achter), a Canadian company that had to pay damages to its customer, South West Terminal Limited (SWT), for failing to honour a contract to supply a significant volume of flax.

Despite a member of Achter's staff seeking to merely acknowledge receipt of a message by sending a thumbs up text, the court held that a more informal style of communication was well established between the two companies, and therefore it was not unreasonable for SWT to assume that Achter were in fact committing to deliver the order through their sales rep's use of an emoji. When Achter failed to deliver the load, SWT successfully sued them for breach of contract and damages.

Similar circumstances have come under scrutiny in American courts where the use of the smiling face, the grinning face and the clapping hands have all been identified as potentially having an equivalent effect in contract negotiations to the thumbs up communication for Achter.

The position is yet to be tested in the UK courts, but in our view, they are likely to adopt a similar approach, particularly where businesses have a long-standing relationship using an informal communication style.  

Best practice guidelines for business communications

This is a timely reminder of some best practice guidelines around business communications, particularly for sales and procurement activity:

• Implement regular training sessions to ensure staff are aware of the potential impact of abbreviated text language and emojis.
• Emphasise the importance of clear communication skills.
• Put in place clear policies for business use of social media e.g. WhatsApp for business.
• Where informal acceptance is received from a counterparty, request they clearly confirm the position in writing to avoid any misunderstanding.

For support in implementing best practices that protect your business interests and foster clear, professional communication, please get in touch.