Can an emoji be legally recognized as a signature?

In 2024, the Saskatchewan Court of Appeal (“SKCA”) recognized in Achter Land & Cattle Ltd. v. South West Terminal Ltd., 2024 SKCA 115 that a text message with a thumbs-up emoji was a valid signature based on the particular facts of the case, particularly because the parties had a history of informal contracts by text message. The SKCA expressly cautioned that this decision does not mean that every text message constitutes a signature: context matters.

Impact

Although electronic contracts can make the signing process more efficient, parties must protect themselves to avoid being unintentionally bound or relying on uncertain contracts because they are signed using processes that do not comply with relevant electronic document legislation.

Some examples of good practices to implement:

• adopt an internal contract policy that sets out who within your organization has the authority to enter into binding contracts, under what circumstances, the rules for negotiation and prior approval, if any, and impose disciplinary measures on negotiation teams;

• at the start of a negotiation, communicate how you will execute the contract, including in any solicitation of offers, and who has the authority to sign the contract if necessary;

• consistently use a means of signature recognized by the relevant legislation on electronic documents (Most Canadian provinces have adopted laws to ensure that electronic signatures are secure, reliable and legally binding);

• introduce in your contracts a clear clause on recognized signatures aligned with your practices (and follow it) both for the initial contract and for the amendments;

• be clear during the negotiation process that the contracts exchanged are “drafts” for comments and that only the final signed version will have legal force;

• be especially careful in non-binding and pre-contractual documents such as a letter of intent to indicate when the parties will be bound and that they do not intend to be bound until that time.