Category: Technology

Your Emoji Use Just Formed a Contract

Or, did it?

As confirmed in a very recent Wall Street Journal article, the legal impacts and effects of using emojis and emoticons in business and workplace communications and dealings are growing. For attorneys, contract professionals, and business executives and teams discussing, negotiating, and communicating about technology, business, deals, and transactions, the use of emojis (pictographs) and emoticons (punctuation marks, letters, and numbers) should be a concern.

Depending on the circumstances, using an emoji or emoticon to respond to another party’s email or message may have the same effect as if precisely crafted words had been used. Unless the author of the email or message is careful, casually sending a 👍, :-), 👌, or ☺ in response to an email putting forth a proposal or offer to do business may be the same as stating, “I agree to your terms.” At a minimum, replying to a message with an emoji may convey contractual intent. Bottom line, before using emojis or emoticons in emails and other communications, it is critical to consider how they may be received or interpreted.

The use of emojis clearly is on the rise. In its November 2016 report, Emogi reported that 2.3 trillion messages incorporating an emoji would be sent in 2016 – and the report did not include the use of emojis in emails. In addition, the Unicode Consortium recently announced that 157 new emojis have been added in 2018, bringing the total number of standard emojis to 2,823. As more of the business world adopts technology to communicate, it becomes more important for business leaders, procurement and purchasing professionals, and others to be mindful of their use of emojis and emoticons in emails, texts, and other message formats. To those businesses and companies that have “careful communications” policies, has your policy been updated to address the use of emojis?

Aside from general contract concerns, the use of emojis has and will increasingly impact parties’ legal rights and obligations. This includes in the areas of labor and employment, promissory estoppel, jury instructions, and criminal cases. According to research by Santa Clara University law professor Eric Goldman, for the set of reported cases that he was able to identify as mentioning “emoji” or “emoticon” over the 2004-2016 period, over 30% of the cases were from 2016, and nearly 50 were from 2015 and 2016.

And, if you needed another reason to be overly cautious when using emojis and emoticons in correspondence and communications, be aware that the true meaning attributed to any particular emoji may be vague, at best, or non-existent, at worst. Moreover, the form and appearance of the emoji you send may not be the same as the form and appearance seen by the recipient. In addition, different cultures, generations, and geographic regions interpret emojis differently. (The most confusing emoji? It’s 🤗.)

The reality is that emojis are easy to use and can be fun and communicative. They are, and will continue to be, used in emails, texts, and communications between and among business parties, their advisors, and others. Just be sure to 👀 before you 🏃.

How to Negotiate Your IT/Tech NDA Faster (or, Living with a Suboptimal NDA)

Recently I found myself watching a past episode of HBO’s award-winning tech comedy series, Silicon Valley. If you’ve never watched it, it’s about a Silicon Valley tech start-up and its struggles, successes, and missteps. Although at times the show can be a bit gratuitous, part of its interest derives from the proximity – at least on some conceptual level – of many of its plot lines to reality.

Because I routinely help clients with non-disclosure agreements (NDAs) and related issues, I cringed watching the “Runaway Devaluation” episode from the second season. In this episode, the start-up (a data compression company called Pied Piper) is invited to an initial meeting with a potential funding source (Branscomb Ventures), which has already invested in a competing compression company, Endframe. Shortly after the meeting begins, the Pied Piper team begins sharing critical details of how its data compression technology is built and works. Later, realizing that Branscomb’s intention for the meeting was only to gather these details for the improvement of Endframe’s products, Pied Piper storms out of the meeting.

While it appears there was no NDA between Pied Piper and Branscomb Ventures covering the meeting’s discussions, in reality it is routine for parties to potential IT and technology transactions to put an NDA in place. Vendors, customers, and others in the IT/technology industry generally understand the need to protect their trade secrets and other valuable information when sharing them to evaluate potential relationships with vendors who provide software, hosting, outsourcing, professional technology services, and data breach investigation and remediation services. Among typical participating parties, the need to put in place an NDA is rarely disputed, and many NDA terms and conditions are quite common.

That said, NDA negotiations can nonetheless become time-consuming or contentious. Whether based on a party’s bad experience in a previous situation, defensive or offensive tendencies, or need to avoid deviations from company policies, otherwise common NDA terms can lead to uncommonly protracted negotiations. For a vendor looking to sell to a new customer, lengthy or difficult NDA negotiations can cause the potential customer to view the vendor as being difficult to deal with, or, worse, to drop the vendor from consideration entirely. For a customer wanting to urgently find a vendor to provide services to address a data breach, time to negotiate an NDA is not a luxury.

Even with NDAs, though, there are ways to speed up the negotiations – which, additionally or alternatively, can also provide mitigations to living with a less-than-desirable NDA. The following steps are a few that may allow an NDA party to get comfortable with otherwise problematic NDA terms in a specific case. (Importantly, these measures should not be implemented if contrary to a contractual obligation or law, nor should they replace sound judgment and risk management.)

For a disclosing party that:

(1) After discussions start, is concerned that the receiving party may not handle or treat its confidential information in way that is satisfactory (or that the NDA’s confidentiality terms are not optimal), the disclosing party can do as Pied Piper did and cease providing any more information. (Though, this may stifle productive business discussions, and the party should attempt to put a retroactive NDA in place.)

(2) Believes that the confidentiality terms are not ideal or has concerns about the receiving party’s handling or treatment of its confidential information, the disclosing party can proactively intentionally limit disclosure to only its least sensitive information. (This step, too, may hamper meaningful discussions between the parties.)

(3) Is concerned that the duration of the NDA may cover discussions too far in the future to be appropriately covered under the NDA, the disclosing party can terminate the NDA after the then-presently contemplated discussions.

(4) Has concerns about the information protections provided by the NDA or the receiving party, the disclosing party can conspicuously mark all information disclosed as “CONFIDENTIAL” – that is, even if the NDA doesn’t require it. And, after disclosing confidential information orally, the disclosing party can follow each such disclosure with a written notice expressly identifying the orally disclosed information as “CONFIDENTIAL.”)

For a receiving party that:

(1) Has concerns about its ability to fully adhere to the NDA’s limitations on use and disclosure of the disclosing party’s information, the receiving party can actively limit the number of its personnel who see or have access to the information.

(2) Is concerned about its risk of non-compliance with the NDA’s confidentiality terms, the receiving party can consciously limit the number of copies it makes of the disclosing party’s information (including copies in the form of email attachments). (This assumes copying is permitted.)

(3) Has concerns that it may struggle to meet the NDA’s limitations on disclosure and use of the disclosing party’s information, the receiving party can immediately destroy (or return) the information once it is no longer needed.

As for Pied Piper, it turns out that Endframe did indeed improve its products using Pied Piper’s technology. However, whether due to the lack of an NDA – or, more likely, the constraints of a ten-episode television season for Silicon Valley – Pied Piper was forced to take other, non-legal actions to advance its interests.