Court’s use of Emojis

The Court is being asked to interpret the use of emojis as part of a breach of contract claim between Phones 4U Limited (in administration) and EE Limited.

EE’s counterclaim cited use of a sad face emoji by Phones 4 U on its website in a statement to explain why it was offline. Phones 4 U’s statement was said to contain unauthorised, false or misleading statements in breach of a trading agreement between the 2 companies. The statement was signed off with a sad face emoji.

The Commercial Court will have to interpret the use of a sad face emoji and provide a ruling on whether its use breached the terms of the companies’ trading agreement. Was the sad face emoji being used to signify Phones 4 U upset at being offline, or was something more sinister and underhand being said about EE’s accountability for Phones 4 U being offline.

Its likely that excluding the emoji and restricting the statement to the use of words may have provided a much clearer understanding of intent. Words can be interpreted in different manners, but at least the Courts have great experience and existing case law to rely upon when interpreting contracts:

1. Considering the whole contract.
2. Applying commercial/business sense.
3. Avoiding an unreasonable result.
4. To save the contact.
5. To correct minor mistakes.
6. The contra proferentem principle.
7. The ejusdem generis principle.
8. Express terms negating implied terms.
9. Weighing the evidence.

In addition, the Courts have adopted the parol evidence rule to generally restrict use of extrinsic evidence. That could be relevant to whether custom and usage dictated the use of emojis, or whether emojis were used subsequently.

Lord Hoffman set out five principles in Investors Compensation Scheme v West Bromwich Building Society:

1. The objective test.
2. Background knowledge and matrix of fact.
3. Exclusion of previous negotiations and subjective intent.
4. The meaning of words.
5. Natural and ordinary meaning.

It remains to be seen which of these principles, if any, will be applied to the sad face emoji. Is it a sad world that we live in, when use of emojis is being restricted? 🙁

For advice relating to any dispute resolution, debt recovery or litigation matters please contact Inderjit Gill or another member of our Dispute Resolution team.

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