Courts around the world are considering promises made via text message as legally-binding contracts.
Text messsages depict a reneged deal. (Illustration by News Decoder)
This article was produced exclusively for News Decoder’s global news service. It is through articles like this that News Decoder strives to provide context to complex global events and issues and teach global awareness through the lens of journalism. Learn how you can incorporate our resources and services into your classroom or educational program.
Keeping your word on an agreement is fundamental. But just in case one side tries to renege, you want proof on paper that will hold up in court.
But does a casual social media chat count as a contract? That’s the question being debated around the world. The Ugandan High Court recently ruled that a promise texted via WhatsApp is a contract.
A court in Canada ruled that a thumbs up emoji could count as well. But over in South Africa, a woman who sought a share of lotto winnings she thought was promised in a WhatsApp message came away empty-handed.
The implications go beyond national boundaries, influencing legal discussions on an international scale.
The case the Uganda High Court decided in January revolved around the question of whether contracts made through WhatsApp messages could be considered legally binding.
The case, initiated by Dr. Rodney Mugarura against Paramount Hospital Kampala Limited and its director, Dr. Simon Begumisa, set a precedent for the evolving nature of contracts in the digital era.
Holding someone to a texted promise
Mugarura’s claim stemmed from unpaid professional fees totaling UGX 41.5 million (about USD $10,600) earned from surgeries he performed under an agreement made via WhatsApp.
According to the surgeon, Begumisa approached him on WhatsApp in 2019, outlining the hospital’s need for his expertise.
“The hospital runs many departments, including orthopedic surgery,” the director informed Mugarura, “and we work with many surgeons who are given operating rights and the rights to charge their professional fees.” It was then agreed that Mugarura would work under similar terms.
Under this agreement, Mugarura would invoice “for his professional fees, surgical implants used in the surgeries or other services [he] would provide in the process of attending to the patients.”
But despite his repeated requests, Mugarura said the hospital and its director failed to pay him.
Legal statutes and text messages
Justice Patricia Kahigi Asiimwe delved into legal statutes governing electronic communications and contract validity.
She cited a section of Uganda’s Contracts Act, which says: “A contract is in writing where it is namely; in the form of a data message; accessible in a manner usable for subsequent reference; and otherwise in words.”
She further noted that under a section of a Ugandan law concerning electronic transactions, “data” meant electronic representations of information in any form and a “data message” is data “generated, sent, received or stored by computer means, and includes (a) voice, where the voice is used in an automated transaction; and (b) a stored record.”
So is a smartphone — used for WhatsApp — a computer?
Under the Electronic Transactions Act, Justice Asiimwe found that computer was “an ‘electronic, magnetic, optical, electrochemical or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic or storage functions.”
So that seemed pretty clear.
“In my opinion, the above definition includes mobile phones,” she ruled. “The Court finds that there was a valid contract between the Plaintiff and the Defendants.”
A contract in few words
Paramount Hospital was ordered to pay the outstanding fees to Mugarura, with 20% interest from the initiation of the lawsuit in 2021.
Legal experts hailed the decision, saying it ensured the law remained relevant in today’s evolving digital landscape.
Pheona Nabasa Wall of the Ugandan legal firm Nabasa & Company Advocates said it reflected the realities of modern life.
“WhatsApp has become a widely used platform for business and personal communication, making it a common medium for negotiations and agreements,” Wall said. “Recognising contracts formed through WhatsApp messages aligns with the way people conduct business and interact in contemporary society.”
However, Wall sounded a note of caution. “It’s important for individuals and businesses to maintain clear records of their conversations and agreements,” she said. “This may require implementing proper documentation and record-keeping practices to avoid misunderstandings or disputes later on.”
Esther Akol, who works full-time as a virtual assistant in Uganda, agreed.
“Ensuring all parties fully understand and consent to the terms communicated through WhatsApp may become a potential challenge,” Akol said. “Also, businesses may face difficulties in proving the authenticity of messages in case of disputes.”
The law of contracts has evolved over time.
Akol reminded us of the history of contract formation. “At first, there was word of mouth which, surprisingly, still finds its place,” she said. But realising that oral agreements needed the backup of concrete evidence, people soon started making things more tangible.
Someone, probably a local leader, would witness the agreement. “This would involve writing on paper for proper documentation, and obtaining physical signatures,” she said. “Now lawyers play a pivotal role, offering guidance in contract drafting, facilitating legal compliance and fostering an understanding of rights and obligations.”
Wall said that clear documentation of contracts still matters for Ugandans. She noted that huge sums of money are tied up in corporate dispute cases every year.
Akol advises clients entering contracts to bear in mind five key points: “Clear communication, documentary evidence, legal consultation, privacy considerations and adaptation of policies.”
The importance of clear intent and mutual assent was underlined in a 2019 case from South Africa, also involving an exchange on WhatsApp.
The promise has to be clear.
In South Africa, Ntsieni Morris Kgopana won a substantial sum in the National Lottery and sent a message to Mohlaki Rosina Matlala, the mother of one of his children, discussing the hypothetical distribution of his winnings.
Kgopana texted: “If I get 20m, I can give all my children 1m and remain with 13m. I will just stay at home and not drive up and down looking for tenders.”
But the South African Court of Appeal dismissed the case on the grounds that the message outlined potential future actions rather than present intentions, and lacked the necessary clarity and certainty required for a legally binding agreement. Moreover, the court said, Matlala had failed to respond to the message.
Last year in Canada, meanwhile, a judge ruled that the “thumbs-up” emoji carries the same weight as a signature.
There, a farmer found himself liable for damages after using the emoji to acknowledge a WhatsApp agreement but subsequently failed to uphold the terms of the business deal with the other party.
The judge argued that courts should adapt to the evolving modes of communication in contemporary society.
So with any agreement, the devil might be in the details, but it’s what’s in the chat that might make it binding.
Questions to consider:
- Why did the Ugandan court decide a text message is a legal contract?
- Why in South Africa did a court dismiss a case concerning a WhatsApp message?
- Do you think that people should be held to promises they dash off in a text message? Why?
Enock Wanderema graduated in 2022 from Uganda’s Christian University, with a first class degree in Mass Communication and Journalism. He is a regular contributor to Uganda’s Daily Monitor newspaper and has been an intern in the Kampala office of UN Global Pulse. He loves writing and bringing complex stories to life in the simplest ways.
Read more News Decoder stories about digital technology: