Is a “Like” or 👍 Legal Acceptance?

It Was in This Case

In a decision that may be a warning sign of ones to come in the States and abroad, a Canadian court has ruled that a “like” reaction or emoji reply (as in 👍) could reasonably be considered a legally binding contract acceptance.

While the decision does not establish Canadian legal precedence and there were other considerations – such as the historically short and informal communications between the two parties – it certainly serves yet another cautionary tale about choosing clarity over assumptions where legal matters are concerned. 

This decision shouldn’t surprise anyone paying attention to trends. After all…  

There IS precedent establishing text messages as binding in US real estate transactions.  

“But” I hear all the real estate lawyers out there objecting, “real estate contracts aren’t enforceable unless they’re in writing.” Well, they’re not wrong… but what does “in writing” mean.  

Let’s answer some questions:  

1. In what context was the precedent set on texting and real estate contracts? 

2. How should we expect our evolving tech and language to impact laws?  

3. Last but most importantly, what can you do to protect yourself and your clients? 

1. Text Messages + Real Estate Law (Context): 

On behalf of their respective clients, a listing and seller’s agent agreed to a price via text. The listing agent asked for the seller to sign first, which the seller’s agent agreed to and set a date for. Before that mutually agreed upon meeting date arrived, the seller received and accepted a better offer. The original buyers sued — and won!  

The court found that the text exchanges between the realtors indicating offer and acceptance qualified as a legally binding real estate contract. 

2. Evolution of Language and Methods: 

Ever-changing tech, language and common practices are at the very heart of all this. Contracts were once all handwritten, then along came that absolute, never to be outdone, pinnacle of all human inventions – the typewriter. Except then there were printers… fax machines… emails… you get where this train is going. Our technology demands new standards. There were no laws on turn signal usage before cars.  

The Candian court’s decision on a mere 👍 may be less a reflection of our tech though, as it is of our cultural and norms. Our courts are adapting not merely to evolutions in our methods of communications, but our styles. You know the old expression on interpersonal exchanges, “it’s not what you say, but how you say it.” In our woods, it’s best to be mindful of both what and how.  

Not long ago, casual acronyms and symbols were referred to as “leet speak” – a language reserved for, and understood only by, early adopters and those who lived in the tech space, either for work or play.  

Fast forward a relatively fleeting time to today and those LOLs and more have since become so ubiquitous IRL that they’re not even distinguished with a “leet” (itself short for “elite”) designation. Instead, our use of symbols, imagery and acronyms have evolved into an increasingly universal language both used and understood across diverse audiences, generations, cultures, nations, and even regional and cultural vernaculars.  

Until recently, even acceptance via email wouldn’t have been considered binding. Now, it’s not just “arguable” but established customary practice. 

3. Protecting Ourselves and Clients: 

So, what should we do when accepting via text or email? In email, include a disclaimer. You can do this in text too, or at least add a phrase to “accepted” akin to “pending signatures of both parties”.  

In short (unironically) – be clear and do not assume implied understanding.  

Unlike the precedent-setting real state / texting case, it’s relevant to remember the “thumbs up” ruling was outside the US and only applies to specific situations where a contract is involved. While not the established law here yet, nor applicable to every instance of a Like or comment on social media, there is a valuable relatable lesson to take away… 

We – and our teams – should not assume an image or symbol expresses to others what it does to us, especially where legal matters are concerned. 

Looking Ahead (and Behind): 

In our growing desire for brevity and two-second headlines – and our decreasing attention spans – we can sacrifice clarity and comprehensive understanding. This case is yet another “heads up” notice to be mindful that culture informs more than our norms, but our laws.  

It’s also an acute and timely reminder of an important long-standing legal axiom…  

A lack of clarity is often held against the party that created it.  

Contact us to speak with one of our contract and real estate attorneys today.