An Israeli landlord places an online ad for an apartment and obtains a response from an interested renter.  According to reports, the renter wrote (original in Hebrew):

Based upon several follow-up communications, the landlord removes his online advertisement. A few days later, the would-be renters disappear. What’s a landlord to do? He’s a businessman so he sues the would-be renters for damages, claiming that he relied upon their express intent to rent the apartment. Apparently, in Israel a plaintiff may claim damages arising out of its reliance upon the defendant’s intention to deal. In this case, the Israeli court found that the positive intent expressed by the would-be renter’s messages signaled to the landlord the renter’s intention to deal upon which the landlord relied. The judge wrote (also in Hebrew):

The…text message sent by Defendant…included a smiley, a bottle of champagne, dancing figures and more. These icons convey great optimism. Although this message did not constitute a binding contract between the parties, [it] naturally led to the Plaintiff’s great reliance on the Defendants’ desire to rent his apartment…These symbols, which convey to the other side that everything is in order, were misleading.”

The court awarded the landlord 8,000 shekels (approximately $2200) to cover damages and legal fees.  Although the court’s decision is not based entirely upon the presence of emoji in the message, the pictographs were still considered symbols of the party’s intent – or optimism.

You may be asking “what the heck,” chipmunks, champagne bottles, and ice cream cones can mean different things in different contexts to different people. You would be correct.  Gabriella Ziccarelli and Eric Goldman who have written about “Emoji Law” have written an interesting analysis of the case.   They admit, however, that because emojis interpretation is so subjective that the true meaning of the would-be renter’s message may be colored by culture and context.  Who knows what significance the ballerina, women with bunny ears (also known as the dancing girls emoji), the victory hand (also known as the peace sign emoji), a comet, a chipmunk, and a champagne bottle have? In Israel, the symbols may have different meanings than they do in the United States.  The authors note that even “sub-communities” may ascribe different meanings to the same symbol.  Was the judge correct about the positive intent conveyed by the string of symbols.  Professor Goldman doesn’t think so.  His study of emoji meaning has demonstrated that the same symbol can convey positive or negative  meanings depending upon who you ask.  Such meanings are unpredictable.  For example, according to Professor Goldman, the “bento box emoji is used in largely negative contexts, while the panda face is associated with less positive emotions than most other animals featured on the emoji keyboard.”  What the lesson here?  Courts are going to evaluate emojis and emoticons as they do any literal evidence but the results will be unpredictable.  Contracting parties should use them with care (or not at all)!

— Adam G. Garson, Esq.