While there is a general consensus on what emoticons are, there is much more ambiguity about what emoticons mean. While the distinction between intent and meaning of apparently ambiguous behaviour is a common process in the law, emoticons exacerbate the problem of interpretation in many ways. “A thumbs up` bottle of smiley champagne` dancing `sun` rainbow `heart` or any other emoticon that might give the impression of the positivity of acceptance or consent in the mind of the recipient could lead to the conclusion of a legal contract.” It is in the area of contract negotiations that the use of emoticons is the most problematic. While lay people are used to viewing contracts as written documents signed by both parties, experienced advisers know this better. The courts have imposed “contracts” that are nothing more than an exchange of emails. In the period leading up to the implementation of a “formal” agreement, the use of an emoticon is the greatest risk of legal impact. In the absence of explicit language, it can be difficult to determine whether an exchange constitutes an agreement between the parties. In such cases, adding an emoticon or emoticon may be just enough to reverse the balance towards the formation of a contract. The existence of a contract depends on the “objective intention” of the parties to enter into an agreement. Even if a party`s “subjective” intent was only to be negotiated, a court will find that there is a contract if the “objective intent” – as the situation seems to a reasonable observer – suggests that a party intended to reach an agreement.
Adding an emoticon such as the “thumbs up,” “shake hands” or circled fingers meaning “OK” can create a reasonable expectation that the sender has agreed to a contract. As part of the activity, emoticons often have cases of harassment or a hostile work environment. Although not often included in the “standard” package of emoticons on computers and phones, “adult” or “X-rated” emoticons are easily accessible. These emoticons range from relatively harmless Buxom Smiley faces to more adult subjects. Although the use of these emoticons is conceived as a “joke,” it has considerable potential to be interpreted as an invitation – or pressure – to sexual or romantic activities. In addition to sexual images, there are emoticons that are in themselves denigrations of sexual orientation, race, nationality and disability. Even an image as benign as a flashing smiley face could be interpreted as an inverted reference to sexual activity or an “inner joke” – or misinterpreted. Who thought that sending a smiley face or a thumbs up could put you in legal trouble.
The study […] discussed a case in Israel where a couple was looking for an apartment. They wrote an owner a series of emoticons, including a smiley face, a comet, a bottle of champagne, yellow dancing playboy hares and a chipmunk. The owner believed, in part on the emoticons, that the couple had agreed to rent the apartment. He took the list and sued her when they no longer responded to her messages.