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Following the recent decision of a Magistrate Court in Uganda to order a WhatsApp group Administrator (Admin) to reinstate an unceremoniously ejected member, it should be understood that digital technologies and their nuances are not as casual as we might think and could spell serious consequences in our affairs if not taken seriously.
A Whatsapp group could be like any other conventional group or association entitling its members to enforceable rights as though it were in a traditional sense.
In another novel case highlighting this deference by the Courts to the digital culture, a Court in Canada has ruled that a thumbs-up emoji could constitute a valid and enforceable acceptance of a Contract.
Justice Timothy Keene found that a seller had breached a contract to deliver 87 metric tonnes of a grain crop called flax valued at $667 by not delivering it to a buyer who had sent him a signed contract document in a text message with the words: “ Please confirm flax contract.” To which the seller responded with a thumbs-up emoji.
Fobbing off the buyer’s suit for breach of contract, the seller identified as “Achter Land & Cattle Ltd ” argued that his emoji text did not constitute acceptance of the terms of the contract.
“ The thumbs-up emoji simply confirmed that I received the Flax contract. It was not a confirmation that I agreed with the terms of the Flax contract. The full terms and conditions of the Flax contract were not sent to me and I understood that the complete contract would follow by fax or email for me to review and sign.”Mr. Chris Achter of Achter Land and Cattle Ltd told the Court, according to Legal Cheek.
Legally, for a contract to be valid, there has to be a consensus – “a meeting of minds” otherwise known as “consensus ad idem” between the parties to the contract if at all they are to be bound by its terms.
The decision as to whether there was acceptance of the contract or not is determined not by what the individual parties to the contract think but by what a reasonable independent observer looking at the contract would think. This is the position of the law in Uganda as well.
Justice Timothy Keene rejected the defense, putting into context the relationship between the two. The Judge established that the two had had a long-standing business relationship and had previously concluded similar contracts in a similar fashion where the buyer would text a photo of a contract and the seller would accept it via text message with positive phrases such as: “Looks good,” “OK,” and “Yup.”
Quoting the meaning of the thumbs-up emoji on dictionary.com as an emoji used to express assent, approval, or encouragement in digital communications especially in Western cultures, Justice Keene said the definition of the emoji “comports with my understanding from my everyday use – even as a latecomer to the world of technology” and that ” Courts cannot and should not attempt to stem the tide of technology and common usage and should be ready to meet the new challenges that may arise from the use of emojis and the like.”
“ I am satisfied on the balance of probabilities that [Achter] okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji.
” In my opinion, when considering all of the circumstances that meant the approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached a consensus ad idem – a meeting of the minds- just like they had done on numerous other occasions.”The Judge said
Benjamin Ahikiiriza is a Legal Writer And Digital Communications & Marketing Specialist majoring in Lawyers, Law Firms And the larger Legal Sector.
Benjamin currently Works as the Director of Content and Business Development At LegalReports.