Ben Coogan and Ray Marshall

Use of emojis lands potential tenant in contractual hot water

Ben Coogan and Ray Marshall

Jun 15 2017

IT Legislation Updates New Media Uncategorized

With emojis now an inseparable part of modern communication, it was inevitable that they would be used by a person in the course of contractual negotiations. As recently found by an Israeli court, the use of certain emojis could, in context, evidence intention to enter into contractual relations, as a consequence of which a prospective tenant of a property was found liable to the landlord from ultimately not entering into a proposed lease.

In their original and most basic form, emojis consisted of a series of characters typed on a computer or typewriter to create certain expressions. For example, the sequence of a colon, hyphen and right-hand bracket created the ubiquitous smiley :-). As technology advanced (particularly widespread use of instant messaging software, and improvements the graphics capabilities of mobile devices), these symbols became more advanced graphics and became more widely adopted.

Today, a wide number of graphical emojis have been added and are directly available within the Unicode standard for computer character encoding, while even more emojis are available through vendor-specific implementations (eg Android, Apple, Samsung, etc).

Emoji's

A sample of traditional and advanced emojis by EmojiOne.
Released under the Creative Commons Attribution Share-Alike 4.0 License

Cut to the suburbs of Tel Aviv in June 2016, with property owner Yaniv Dahan listing his house for rent on an Israeli classifieds website. Shortly afterwards, Yarden Rosen sends Dahan the following text message (originally in Hebrew):

Text message 1

Thereafter, Dahan and Rosen entered into a series of messages in which Rosen continued to use “positive” emojis (such as the smiley). On the basis that Rosen had agreed to lease the property, Dahan took down the classified advertisement.

Subsequently and without any apparent warning, Rosen ceased communication and Dahan was required to re-advertise the property and find new tenants. Dahan subsequently took action against Rosen in the Herzliya Magistrates Court (small claims) for misleading him that they would enter into a lease.

At trial, Rosen claimed that there were problems with the property which made it unacceptable. Judge Amir Weizebbluth found that Rosen’s use of “positive” emojis contradicted the existence of any concerns regarding the property as Rosen alleged existed. In effect, Rosen’s use of emojis indicated an intention to proceed, which Dahan was entitled to (and did) rely on.

“The [emoji laden] text message sent by Defendant 2 on June 5, 2016, was accompanied by quite a few symbols, as mentioned. These included a “smiley”, a bottle of champagne, dancing figures and more. These icons convey great optimism … this message naturally led to the Plaintiff’s great reliance on the defendants’ desire to rent his apartment. As a result, the Plaintiff removed his online ad about renting his apartment. These symbols, which convey to the other side that everything is in order, were misleadingThe combination of these [symbols] support the conclusion that the defendants acted in bad faith in the negotiations.” (translated, emphasis added)

Judge Weizebbluth found in favour of the landlord Dahan and awarded partial damages and costs of 8,000 shekels (about AUD $3,000).

This is not the first time where the question of whether use of particular emojis indicates a particular emotive state or mental intent, has been before a Court. For example, in 2015 alone:

  • 17 year old Brooklyn resident Osiris Aristy made Facebook posts including statements criticizing New York police and including the emojis sequence 2. Aristy was subsequently charged by prosecutors for making a terroristic threat (this charge was dismissed by a grand jury).
  • during the trial of Ross Ulbricht (the operator of the online black market “Silk Road”) in the US District Court for the Southern District of New York, Judge Katherine Forrest directed that “the jury should note the punctuation and emoticons” in the evidence submitted by prosecutors (Ulbricht has since been convicted to life imprisonment without parole). [1]
  • on the question of whether certain statements made by a (male) student at the University of Michigan to another (female) student constituted stalking or harassment, the (male) student argued that as his statements were accompanied by an emoticon of a wide-mouth smile (-D), they should not have been taken seriously. Judge Robert Cleland (District Court for the Eastern District of Michigan) disagreed, finding that the emoticon “[did] not materially alter the meaning of the text message”. [2]

The key takeaway from these cases are that the question of the meaning behind emojis is unsettled and contextual at best, and should be avoided where there is any prospect that their use may inadvertently evidence an intention to enter into legal relations.

[1] United States v Ulbricht, No. 14-CR-68 KBF (S.D.N.Y).

[2] Enjaian v Schlissel, No. 14-CV-13297 RHC (E.D. Mich., May 27, 2015).