The ease at which we now communicate is evidence of the expansion of the information technology in the digital age. In recent years, there has been a trend towards instant messaging over making telephone calls, and sending emails in preferred to sending letters.
In the recent case of Phones 4u Ltd v EE Ltd, an interesting legal point arose regarding the use of a sad face emoji in a public statement. In 2014, Phones 4u found themselves in financial difficulty as a result of losing a number of contracts with mobile networks, including EE.
When EE decided not to renew on 12 September 2014, Phones 4u appointed an administrator. On 15 September 2014, Phones 4u ceased trading both on the high street and online.
Phones 4u and EE brought various claims against each other. OPe of EE’s claims against Phones 4u was that Phones 4u was in breach of contract by using the sad face emoji (L) in a statement regarding its financial difficulties which referred to both EE and Vodafone: specifically that the breach was an “unauthorised, false or misleading representation” relating to the agreement between the parties. It is likely that EE considered that the use of the sad face emoji coupled with Phones 4u’s statement may cast EE in a bad light and that it may have caused some reputational damage.
Phones 4u felt that the claim had no merit and requested summary judgment against EE. However the judge disagreed and held that the claim would “offer the court at trial an opportunity to consider the use of the sad face emoji as creating or involving a breach of contract”.
Parties should be aware that the use of emojis could hold some weight in interpreting their actions.
Could thumbs up or smiley face emojis be deemed to be agreement or confirmation? What about if a party used the ‘cry laughing’ face during negotiations – could that be deemed as unreasonable behaviour?
The best advice would be to stick to not using emojis in any statements and correspondence until the court reaches a final decision in the Phones 4u case.