Could sending a smiley face get me into legal hot water?

Including seemingly innocent emoticons in an instant message or email could potentially lead to an individual being bound by unwanted contracts and held liable for damages.

This according to Johannes du Plessis, Legal Advisor at RBS (Risk Benefit Solutions Pty Ltd), an authorised financial services provider, who says that consumers who use emoticons in their emails or instant messages risk creating incorrect impressions in certain situations.

“Many individuals negotiate lease agreements with landlords or agents, or make purchase and sale agreements with sellers they found in newspaper or website classifieds. Placing a thumbs up, smiley face, bottle of champagne, dancing figures, sunshine, rainbow, heart, or any other emoticon which creates the impression of positivity, acceptance or agreement in the mind of the receiver, might result in the conclusion of a legal contract.”

Du Plessis explains that this could result in the sender being bound as if he had the will and intention to enter into the contract. “Should you then breach the contract, you may become liable to the other party for possible damages.”

Du Plessis adds that “according to Legal Precedent, a contract is regarded as having been concluded when the offeror is informed of the acceptance. Section 22 of the Electronic Communications and Transactions Act (ECTA) provides that contracts concluded wholly or partly by a data message is valid in law.” Additionally, “if the sender argues that the receiver never even read the acceptance, section 23 of the ECTA even provides that the data message (which created the impression of positivity or acceptance) must be regarded as having been received by the receiver (and therefore concluded) when the complete data message enters the information system used by the receiver and is capable of being retrieved by the receiver” says du Plessis.

He adds that Courts have already seen cases that demonstrate the risks of careless messages. “In one case, during lease negotiations, an instant message user sent a “smiley”, a bottle of champagne, and dancing figures to a landlord who was advertising a property for rent. As a result, the landlord removed his online advertisement. The court stated that these emoticons conveyed to the landlord that everything was in order, and that the message was misleading. The sender was subsequently ordered to compensate the landlord for the landlord’s loss of prospective rental income.”

In another case, the courts have found that an SMS constituted an acceptance of an offer and as such, a valid contract has been concluded. “Therefore, if you are negotiating an employment contract per SMS or instant message, and create the impression of positivity or acceptance, you can be held liable for the employer’s loss of revenue if you then breach that contract,” he says.

To guard against the risk of liability for damages, Du Plessis advises that consumers ensure that they are sufficiently covered by liability insurance. He notes that liability insurance policies differ from insurer to insurer, and consumers need to understand whether their policies cover non-contractual damages and contractual damages or just one or the other.

While an Instant Message Provider has recently announced that it is testing a feature which will delete messages sent erroneously to an individual or in a group chat within five minutes, Du Plessis notes that simply recalling a message after sending may not be enough to avoid the conclusion of a contract and liability therefore, if the impression of positivity, acceptance or agreement had already been created in the mind of the receiver.

“Communicating with the use of emoticons makes it very easy for instant message users to be held liable for damages. The implication of this is clear, so do not put yourself at risk by communicating in any way that could create an incorrect impression or belief in the mind of the receiver that a legal contract has been concluded,” Du Plessis concludes

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