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The writing system employed by the ancient Egyptians for inscriptions on statues, coffins, sarcophagi, and walls of temples and tombs was called hieroglyphics. Either for the gods or the afterlife, these were made for all eternity. Some are expertly carved, resembling artwork rather than text. Approximately 500 frequent signs are known as hieroglyphics. These were the formal writing system used in ancient Egypt for writing the Egyptian language.

With the advancement in science and technology, particularly the advent of social networking, wordless communication has blossomed with the use of:

Emoticons (keyboard-generated), Emojis (software-generated), GIFs, stickers, memes and pictures.

The use of computerized social networking in court is becoming more and more common, and the variety of case law that is emerging globally suggests that there are countless legal ramifications that could arise from its application.

These have so much similarities with hieroglyphics. It will be safe to say that Emoticons, Emojis and GIFs are modern applications of hieroglyphics.

PROBLEMS SURROUNDING THE INTERPRETATION OF EMOJIS

Effective communication relies on the sender expressing an exact idea to the receiver, which can be problematic when the receiver cannot interpret the message. Emojis, as wordless communication, can have vague or non-existent meanings, depending on the circumstances.

Emoji interpretation is hindered by their lack of universal meaning due to cultural and geographical differences. For example, the hands-up emoji in China means ‘praise’, while the smiley face emoji in China means ‘stay away’.

Emoji interpretation is complicated by cross-platform/OS discrepancies. For instance, the astonished face emoji, which appears in 2016 variations, may not be interpreted as “astonished” by Google, Facebook Messenger, or Samsung. Despite efforts to unify emoji implementations, there are still differences that need to be considered. The best example of this specific issue is the hypothetical emoji representation of the perplexity in the famous PEERLESS CASE. [RAFFLES VS. WICHELHAUS (1864) 2 Hurl. & C. 906].

During contract negotiations, the sender replies to a contract offer using language that could be taken as an acceptance, but he or she also includes an emoji that is meant to convey a sarcastic but contradictory message. But the recipient sees an emoji that doesn’t convey sarcasm in the same way because of how the recipient platform interprets the emoji.

The recipient understandably misinterprets the sender’s intended sarcasm due to the cross-platform disparity, assumes the sender accepted the offer, and negatively adjusts her stance as a result. Is the contract still in effect? Is a “meeting of the minds” possible?

LEGAL IMPLICATIONS OF THE USE OF EMOJI

Emojis have come to stay in the use of our daily communications. They are becoming more and more acknowledged as valid forms of communication, not just as embellishments or supplements to speech.

Emojis are graphic representations of feelings, thoughts, and expressions that people can use to give their messages more depth and significance. They can aid in setting the mood, introducing humor, young energy, or feelings that can be challenging to communicate through words alone.

Recent emoji misinterpretations have resulted in a number of unforeseen consequences, particularly in encounters at work, and some of these problems have begun to make their way into court to be resolved. Emojis are frequently used in both formal and informal conversations, often without the recipient’s context or interpretation in mind. Is it a threat to terrorism, for instance, to use an emoji representing a gun, bomb, or knife? Is sending a coworker a heart emoji a form of sexual harassment?

Can an emoji be defamatory? These are only a handful of the questions that have come up regarding how judges should interpret the use of emojis. The lack of a uniform meaning for emojis makes their interpretation extremely difficult due to different cultural viewpoints. What is considered appropriate by one individual may be extremely offensive to another. For example, the thumbs-up emoji, which typically denotes agreement, acknowledgement, and reciprocal participation in certain contexts, is viewed as impolite and harsh in other contexts, particularly by younger users.

Given that emojis are open to several interpretations, it is obvious that utilizing caution while using them—especially in professional correspondence—cannot be overstated. It’s unlikely that many emoji-related issues will surface in the legal system in the near future, notwithstanding the dearth of judicial decisions that thoroughly analyze emoji interpretations or even outline the methods for doing so. We believe this because, despite the informal nature of their use, emojis are quickly becoming acknowledged as a legitimate means of corporate communication. This is demonstrated by a few recent rulings from international courts, which we will cover in more detail later.

Unfortunately, Emojis in Nigeria are underexplored in law due to lawyers’ lack of consideration for their impact on written communication. There is currently no case law addressing issues arising from emojis or their use in daily transactions, highlighting the need for further investigation.

1. EMOJIS AND CONTRACT FORMATION

Depending on the circumstances, using an emoji can result in the creation of binding relationship between parties. The Court of King’s Bench in Saskatchewan, Canada, SOUTH WEST TERMINAL LTD. V ACHTER LAND 2023 SKKB 116 ruled that the use of a thumbs-up emoji in a text message satisfied both the writing requirement of Saskatchewan’s Sale of Goods Act(S. 6(1) of The Sale of Goods Act) and also constituted acceptance of an offer even though the defendant insisted that his use of the thumbs-up emoji in a text message only served to acknowledge receipt of the draft contract that was shared, but did not signify his acceptance of its provisions. In reaching this decision, the Judge considered the similar nature of past correspondences between both parties and concluded that a reasonable person would understand the emoji as an acceptance of the contract terms offered. The judge, in compelling the farmer to pay $61,442 for breach of the contract, reasoned that the emoji is just as valid as a signature and that courts must adjust to the “new reality” of how people communicate

In other words, casually sending a thumbs-up emoji, a handshake emoji or even a smiley face in response to a message putting forth a proposal or offer to do business may be the same as stating, “I agree to your terms.” Likewise, sending a thumbs-down or a sad or angry-face emoji could be equivalent to a rejection of the terms put forward by the offeror. At the minimum, replying to such a message with an emoji may convey contractual intent.

Also in Israel, the case of DAHAN VS. SHACHAROFF [HERZLIYA SMALL CLAIMS Ct. Feb. 24, 2017] comes to mind wherein Judge Amir Weizebbluth in his judgment stated:

‘The text message sent by the 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 Defendant’s desire to rent his apartment…These symbols which convey to the other side that everything is in order were misleading.’

The positive emojis signaled interest, according to the judge, and the landlord reasonably relied on the defendant’s ‘optimistic language’. The judge awarded the misled landlord damages of over 2,200 dollars.

2. EMOJIS AND DEFAMATION

Emojis may seem harmless, but recent case of BURROWS VS. HOUDA, [(2020) NSWDC 485] suggests that emojis can give rise to an action for defamation because they can convey a defamatory meaning. Here, the defendant tweeted a link to an article about the plaintiff’s disciplinary case with a zipper-mouth face emoji, the judge, referencing an online emoji dictionary, opined that most social media users would have negative impressions of the plaintiff as the tweet conveyed false and defamatory assertions, including that she had been disciplined due to misconduct.

3. EMOJIS AND CRIMINAL INTENT

Some Emojis have been shown to depict criminal intent of the sender. Such emojis as the fist, gun, etc are classified in this category and could be interpreted as expressing the criminal intent to attack you and put you in the hospital. This was the exact message sent by two men taken into custody for stalking charges in South Carolina.

In a Massachusetts murder case, it was successfully argued that the defendant’s use of an emoji with Xs for eyes coupled with the nickname of the victim suggested a premeditated homicide and notaccidental death as the defendant argued.

4. EMOJIS AND THREATS

Perhaps the most troubling use of emoji is where it is unclear whether they connote, modify or amplify a criminal threat. This is the main point of decision in New York City wherein a teenager was arrested for making terrorist threats after posting a Facebook status with a gun emoji pointed at the emoji of a police officer.

This was also the case in New Zealand where a judge considered the role of the emoji in a Facebook message sent by a man to his ex-partner. The man wrote, “you’re going to f***ing get it” along with an airplane emoji. Concluding that the message and emoji generally conveyed that the defendant was “coming to get” his ex-partner, the judge sentenced the accused to 8 months jail on a charge of stalking.

Emojis also feature in cases involving cyber bullying and harassment.

5. EMOJIS AND SEXUAL HARASSMENT

The use of certain emojis in communications can lead to sexual harassment claims or grounds a lawsuit. Sexual harassment is punishable under both Federal and State laws in Nigeria, and the National Industrial Court of Nigeria has been praised for taking the lead in addressing workplace sexual harassment through its judgments and rules of court. Sexual harassment includes unwelcome displays of sexually explicit pictures, objects, jokes, insults, or graphic comments about a person’s body (Section 46 of The Violence Against Persons (Prohibition) Act 2015 states that sexual harassment means “unwanted conduct of a sexual nature or other conduct bases on sex or gender which is persistent, serious and demeans, humiliates or creates a hostile or intimidating environment and this may include physical, verbal or non- verbal conduct.” See similar provision in Section 63 of the Ekiti State Gender – Based Violence (Prohibition) Law 2019).  The court will always consider the surrounding facts and context of use, such as the type of emojis and frequency of incidents, when arriving at a reasonable decision. However, it is unlikely that the use of emojis cannot contribute to the finding of sexual pervasiveness in a modern-day workplace. The court looks at the surrounding facts and analyzes the totality of the circumstances, including the emojis used in denying the defendant’s motion for judgment on the pleadings.

The red lipstick emoji was a topic of controversy in a California case. The red lipstick emoji became an issue in Stewart vs. Durham [3:16-CV-744-CWR-LRA (S.D. Miss. Feb. 9, 2017)], a California claim of sexual harassment where a female potential employee allegedly responded to sexually suggestive texts with a red-lipstick kiss emoji, raising the issue of whether the kiss implied that she welcomed his advances.

6. HOW COURTS ATTEMPT TO INTERPRET THE USE OF EMOJIS

Emojis in daily transactions prompt court interpretation in matters. Courts attempt to understand context, but may only consider emoji meaning in self-explanatory cases. An example is the US case of COMMONWEALTH OF PENNSYLVANIA VS. FOSTER [J-6-2019, (Pa. Aug. 20, 2019)], where a defendant on probation for a drug-related conviction raised the suspicion of his probation officer when he posted photographs depicting guns, drugs and money along with three pill emojis.

Courts often interpret wordless communication, relying on surrounding circumstances and examining emojis like smiles and sad faces. These messages may seem innocent or harmless, but their meaning may vary depending on the context and community used, affecting the sender and recipient’s interpretation. In the 2014 US case of GHANAM VS. DOES, [SC: 148726 (Mich. Dec. 23, 2014)], the court had to analyze the facts and circumstances surrounding a defendant’s use of the sticking out tongue emoticon within a communication in a defamation case. Based on the hyperbole surrounding the emoticon, and the emoticon itself, the court found that the communication was a joke and negated the defamation claim in the defendant’s favor.

On the other hand, in 2019, in COMMONWEALTH VS. DANZEY, [Pa. Super. Ct. 2019], the Superior Court of Pennsylvania upheld the conviction of a defendant for stalking and harassment that was based in part on a social media post whose wording demonstrated the defendant’s state of mind, revealing his criminal intent, despite the words being accompanied by the common smiley face emoji.

7. EMOJI FORENSICS

Emojis are increasingly used in courtrooms due to their widespread use in digital communications. This has led to the need for a specialized field called “emoji forensics,” reflecting societal norms and allowing law to adapt to technological advancements for judicial inquiry.

By: Ifunanya Anyene

In Nigeria, medical negligence cases are not uncommon. Medical practitioners and hospitals face the risk of being sued for medical malpractice, which can lead to heavy financial penalties and damage to their reputations. However, there are several defenses available to medical practitioners and hospitals in such cases.

One of the most common defenses is that of contributory negligence. This defense argues that the patient’s own negligence or actions contributed to their injury or condition. For example, if a patient fails to disclose important medical information to their doctor, and this leads to a misdiagnosis or improper treatment, the doctor may be able to argue that the patient’s own negligence contributed to the outcome.

Another defense available to medical practitioners and hospitals is that of causation. This defense argues that the injury or condition suffered by the patient was not caused by the medical treatment provided, but rather by some other factor. For example, if a patient develops an infection after surgery, the doctor may be able to argue that the infection was caused by factors outside of their control, such as the patient’s own immune system or exposure to bacteria in the environment.

A third defense available to medical practitioners and hospitals is that of informed consent. This defense argues that the patient was fully informed of the risks and potential complications associated with the medical treatment provided and that they gave their informed consent to undergo the treatment despite these risks.

It is important for medical practitioners and hospitals to be aware of these defenses, as well as to take steps to minimize the risk of medical negligence claims. This may include implementing proper protocols and procedures, providing adequate training to staff, and maintaining accurate and thorough medical records. By doing so, medical practitioners and hospitals can help protect themselves from the financial and reputational damage that can result from medical negligence claims.

By: Victory Sarah Opawoye

Trust relationships are formed when a trustee is obligated based on equity, to hold property, whether it is real or personal possessions. The essence of this relationship lies in ensuring that the benefits of the property do not accrue to the trustee, but rather to the beneficiaries or other designated individuals or entities.

Trust law is a powerful legal framework that plays a crucial role in safeguarding wealth. By establishing trusts, individuals and businesses can protect their assets, ensure efficient management and secure financial well-being for future generations.

Within a trust, the trustee assumes a position of confidence and is required to act in good faith, upholding the interests of the beneficiaries and safeguarding the trust property. It is crucial that the trustee refrains from engaging in actions that could jeopardize the beneficiaries’ interests.

Trusts exist in various forms and serve diverse purposes, often reflected in their names. Contrary to popular belief, trusts are not exclusively for the wealthy, but can also be established by individuals with limited means for their own benefits or those of others.

In this article we will delve into the significance of trust law and the roles of a trustee by exploring realistic examples that highlight its personal application and the positive impact.

The Okonjo family, a prominent business dynasty in Nigeria, for decades has built a vast empire spanning industries such as oil, real estates and telecommunications. However, as the family grew in size and complexity, concerns arose about the long-term preservation and succession of their wealth.

The Okonjo family sought the expertise of trust lawyers who crafted a comprehensive trust structure to safeguard their assets. By placing their wealth within trust, they created a legally binding arrangement that separated ownership from control. This not only protected their assets from potential risks and disputes but also ensured continuity and stability.

                                            ROLES OF A TRUSTEE

1. Fiduciary Duties: Trustees owe fiduciary duties to the beneficiaries, which encompass the responsibility to manage the trust in the best interests of the beneficiaries. The trustee must make decisions that prioritize the beneficiaries’ well-being, as they hold an equitable title to the property.

2. Duty to Administer Trust Assets: Trustees have the obligation to administer trust assets in accordance with the terms specified in the trust document.

3. Duty of Loyalty: This duty requires trustees to prioritize the interests of the beneficiaries over their personal interests when managing the trust property.

4. Duty to Act in Good Faith: Trustees are obligated to act with honesty and integrity in fulfilling their responsibilities, while being accountable to the beneficiaries.

5. Duty of Skill and Due Diligence: Trustees must exercise reasonable care, prudence, skill, and diligence in the administration of trust assets.

6. Responsibility for Asset Management: Trustees are responsible for managing trust assets with the same caution that a reasonable person would exercise in managing their own assets.

TYPES OF TRUSTS

1. Private Trust: These trusts are typically established for family members, relatives, or specifically identified individuals. In Knight v. Knight (1840) 49 ER 58, it was established that every trust must satisfy three certainties:

  a. Certainty of Intention: The settlor must demonstrate an intent to create a trust, which can be expressed in the arrangement’s terms.

  b. Certainty of Subject Matter: The property held under the trust must be identifiable and specified.

  c. Certainty of Object: The intended beneficiaries of the trust must be recognizable or ascertainable, or the trust will fail.

2. Public or Charitable Trust: These trusts are created for the benefit of the general public, with the beneficiaries not being selected based on personal relationships with the settlor. To qualify as a charitable trust, it must exhibit an element of public benefit. In RE CROMPTON [1945] ch.299, a trust created for the education of specific individuals’ descendants failed the test of public benefit.

LEGAL FRAMEWORK

The provisions of a trust arrangement can be enforced in any court of law when disputes arise.

1. Trustees Act of 1893: This significant legislation provides clarity and guidance to trustees regarding the administration of trusts. It outlines trustees’ responsibilities in managing trust funds properly and empowers them to invest trust funds, sell assets, and manage the trust affairs in the best interests of the beneficiaries. The act allows trustees to delegate certain functions to professionals or agents and provides protection by granting them discharge from liability when they act in accordance with the act’s provisions and the trust’s terms.

2. Trustee Investment Act: This act provides guidelines for trustees on the investment of trust funds, ensuring that they act prudently and in the best interests of the beneficiaries. It specifies permissible investments and criteria for their selection, emphasizing the need for care, skill, and due diligence in investment decision-making.

BENEFITS OF TRUSTEESHIP

1. Asset Protection: Trusts provide a legal structure that safeguards assets for the intended beneficiaries. Placing property in a trust is a common method of asset protection since trusts are not entities in their own right and are not subject to legal actions like individuals or companies.

2. Estate Planning: Individuals can create trusts to facilitate the orderly transfer of assets to their chosen beneficiaries, ensuring smoother succession and reducing potential disputes.

3. Charitable Purposes: Trustees can establish and manage charitable trusts to support various philanthropic causes, promoting social development and welfare.

4. Continuity: Trusteeship can span multiple generations, with appointed trustees overseeing asset administration and distribution over time, fostering stability and long-term planning.

5. Confidentiality: Trusteeship allows for discreet asset management, preserving individuals’ privacy and shielding their financial affairs from public scrutiny.

One of the key benefits of trust law became evident when the Okonjo family faced a sudden economic downturn. Due to careful planning and diversification of their assets through trust, they were able to weather the storm without jeopardizing their core financial security. The trust structure provided them with a resilient foundation to withstand economic challenges and emerge stronger.

Through the appointment of professional trustees, the family was able to tap into specialized expertise with experience in wealth management, investment and estate planning.

A well-structured trust specifies the conditions and gives instructions on the management of the trust property. It also ensures that the settlor’s asset can be preserved, protected from potential misuse while ensuring it is utilized responsibly.

Conclusion

Trusteeship law in Nigeria establishes a framework for the responsible and equitable management of trust assets. By adhering to fiduciary duties, trustees ensure the protection and benefit of the trust’s beneficiaries. Trusts offer numerous advantages, such as asset protection, estate planning facilitation, support for charitable causes, and continuity across generations, and confidentiality. The legal framework governing trusteeship provides guidance and safeguards for trustees, empowering them to carry out their duties effectively and in the best interests of the beneficiaries.

By harnessing the power of trust law, individuals and businesses in Nigeria cam create a solid foundation for long-term financial security and preserve their wealth for future generations.