Understanding emoji meanings in WhatsApp messages
In the course of business transactions, the communication between contracting parties is increasingly taking place via digital messaging services, such as, for example the probably universally well-known app ‘WhatsApp’. Recently, the Higher Regional Court (Oberlandesgericht, OLG) of Munich stated its opinion on the issue of the extent to which such messages and the emojis that are frequently used in them can have a legal effect.
Issue:
delayed delivery
In the case in question, at the end of 2020, the claimant had ordered a new Ferrari from a car dealer for more than €600k and had already paid a deposit of around €60k. A non-binding delivery deadline of 2nd/3rd quarter of 2021 was agreed with the possibility of sending reminders only from April 2022. The delivery was delayed and in reply to a WhatsApp message from the dealer stating that the delivery date could not be met and “unfortunately would slip into the 1st half-year 2022”, the claimant responded with “Oops” and a “grimacing face” emoji.
The claimant’s patience finally ran out when, even in May 2022, the vehicle had still not been delivered. He set a three-week grace period and, once it had elapsed, he withdrew from the agreement and demanded a refund of the deposit that had been paid. The dealer refused this and pointed out that, on the basis of their chat communications, an extension of the delivery deadline to 30.6.2022 had been agreed by mutual consent. Moreover, he demanded compensation of more than €100k from the buyer because the dealer had only been able to sell the Ferrari - which, at last, was parked on his forecourt - to a third party at such a discount.
Ruling:
binding effect of a WhatsApp message ...
While the regional court had, surprisingly, still ruled in favour of the car dealer, the OLG in Munich, in its ruling of 11.11.2024 (case reference: 19 - U 200/24 e) decided in favour of the claimant.
The court nonetheless took the view that, in principle, telecommunications via WhatsApp satisfied the written form requirement that was agreed here, since a text is received that can be permanently retained or printed out (a different view was taken by the OLG of Frankfurt in its ruling of 21.12.2023). A text transmitted in this way needs to be interpreted in accordance with general principles in order to determine whether or not a declaration of intent with an intention to be legally bound is reflected therein. This will also apply to any pictograms/emojis that are contained therein.
... with an emoji expressing disquiet
However, in this case, the court did not regard the emoji that was used as consent to the delay in the delivery that had been announced and, moreover, the court made reference to the commonly used emoji lexicons Emojipedia und Emojiterra. According to these, the emoji that was used expresses negative or tense emotions (disquiet, embarrassment) and definitely not consent, such as, for example the ‘thumbs up’ emoji.
Generally recorded forms of telecommunications ...
The principles set out above apply for all types of telecommunications, including for text messages. A legally effective reminder for a justified claim for payment can thus also be sent via a text message. This should not be judged any differently than, for example, the receipt of an e-mail (OLG in Hamm, ruling of 7.5.2024, case reference: I 4 U 252/22).
... with the exception of voice messages or attachments
The written form would however not be maintained if the communication took place via voice messages or audio/video files that were attached. Here, there is simply a lack of the requisite text.
