The next time you text an angry friend a curse-laced rant and several middle finger emojis- think twice before you and your finger(s) land up in a court of law.
I know what you are thinking-Emojis are accepted as evidence in courts?!??!?!?!?? And well the answer would be-Yesn’t.
Now as a struggling (broke) law college student myself, I will try my best to make this as digestible as possible and will make sure I steer clear of any confusing legal jargon to not confuse the reader (you) and the author (me *insert the cool emoji*)
Section 65 of the Indian Evidence Act states the admissibility of electronic evidence, including e-mails, chats, and social media posts. Such electronic evidence is considered “secondary evidence”- unless the device itself is produced before the concerned court.
Moreover, Section 65B (1) of the Evidence Act differentiates between the original information contained in the “computer” itself and copies made from it- the actual device being primary evidence and the “copies” of the same being secondary evidence.
In the Arjun Panditrao Khotkar case [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1] passed on July 17, 2020- the Supreme Court clarified that a “certificate” is mandatory from the “authority” that has control or ownership of the device during the time when the electronic communication was created and without such a certificate, electronic communication is not admissible as evidence.
In a recent order (Rakesh Kumar Singla v. Union of India), the Punjab & Haryana High Court had referred to Arjun v. Kailash to conclude that WhatsApp chats shall have no evidentiary value until a certificate is produced under Section 65B(4).
Now, that the evidence part is out of the way- on to the emojis.
A rather intriguing matter [South West Terminal (SWT) v. Achter Land & Cattle Ltd., 2023 SKKB 116, decided on 08-06-2023] came up before a Canadian court early in the year involving a contract wherein the court had to determine whether the thumbs-up emoji constituted a signature for the purposes of acceptance. The court readily acknowledged that a thumbs-up emoji is a non-traditional means to sign a document, but nevertheless under the circumstances of the case- it was a valid way to convey the two purposes of a signature- to identify the signatory and to convey acceptance of the contract. The court was also of the view that a signature in classic presentation does denote identity and confirmation of an agreement, however, that does not prevent the use of a modern-day emoji. The defendant’s counsel raised concerns that by allowing the emoji to signify acceptance- it would open floodgates for the court to then investigate the meaning and interpretation of all sorts of emojis further. The court took note of this very concern and said that it could not attempt to impede technological advancements and common usage. The court also established that email and electronic non-wet ink signatures have been accepted as means of identification and approval of document contents to bring contract law up to speed with the developments of today.
Indian courts and authorities have accepted the use of emojis as valid and determinable evidence for deciphering the intention of the user- mostly used in criminal cases. The predicament surrounding this is the lack of uniform interpretation in a multi-cultural society. The meaning of a particular emoji for one person might not be the same for another.
Having stated that, Indian courts have also recognized the validity of contracts formed through electronic communication such as e-mails and instant messaging.
In the absence of any Indian precedent or legislation on this matter, it is now crucial for both individuals and businesses to exercise caution during negotiations. Emojis can very easily create misunderstandings as everyone interprets them differently. The High Court of Madras dealt with a matter where a complaint was filed against certain individuals for posting the emoji ‘smiling face with tears’ on a WhatsApp group for an offence under the Tamil Nadu Prohibition of Harassment of Women Act in 2018. (I. Linga Bhaskar v. State, 2018 SCC OnLine Mad 1866) The High Court, in this case, went into the interpretation of the emoji and observed that emojis are posted to convey numerous feelings. It is used when something is funny or laughable, the court also stated that when it is accepted that an emoji is sent to express one’s feelings about something, it cannot be treated as an overt act on others. Keeping in mind these observations, the High Court dismissed the complaint with a caveat that while the use of the emoji may not make out a case for harassment- it has indeed offended the complainant and condemned such an act.
It is important to exercise caution when using emojis, whether in conversations with a prospective landlord, a supplier, a service provider, or an employee, as they could be interpreted as a form of binding communication. Therefore, it is advisable to be mindful of the implications of emojis and consider the impact they may have. However, given that entering a written contract is an exercise aimed at the reduction of ambiguity, emojis would continue to rank lower than other conventional methods of executing contracts.
It is important for us to recognize the impact emojis have in today’s day and age where a skull emoji is used to convey laughter (I DIED LAUGHING) and the crying emoji is used for literally everything. Your dog died? Crying emoji. You passed with flying colours? Crying emoji. You need money? I do too.
Emojis are admissible in a court of law provided it follows the procedure given under the Indian Evidence Act and the principles laid down in cases dealing with electronic evidence. However, it is recommended that people refrain from using emojis when it comes to business dealings but when it comes to your friends- fire away (*insert gun emoji*)
This article has been written by Dhruv Khanduri (3rd Year).
