Thumbs Up to Using Visuals in Contracts: How Visuals in Contracts Will Survive Court

For many legal practitioners, the thought of a visual contract is terrifying. Afterall, without all the flowery legalese, how will a court know how to interpret the contract? Except that the traditional approach to contract drafting is changing as drafters increasingly focus on clarity. Clarity can come in many forms: plain, uncomplicated language, white space and the strategic use of informational design like fonts, underlining, and highlighting to illustrate important elements. The hold-up to greater adoption appears to be based on risk and concern about a court’s interpretation, which often means that contracts are written by lawyers for other lawyers and the interests of the contracting parties become a secondary consideration.

A Dutch company, Visual Contracts, led by its CEO, Lieke Beelen, an Industrial Design Engineer, decided to test the litigation waters to determine whether its visually designed contract would withstand the court’s scrutiny.[1]

About the Visual Contract

Lieke Beelen and her company, Visual Contracts, focuses on the contract design. To do this, Visual Contracts seeks to understand how legal content is perceived by its user. By focusing on the user’s journey, they strategically utilize visual elements in the contract design to create greater clarity.[2]

Tzorg, a homecare company, wanted the language of their employment contracts to match the literacy levels of their employees and retained Visual Contracts to help them achieve their goals. Visual Contracts follows the design thinking steps, which means that before starting the drafting process, it considers the user experience; something that many lawyers forget to do. Since the employee’s experience was not considered when the standard employment agreement was originally drafted, Visual Contracts started with the employee’s journey. It focused on design research to understand the user of the contract prior to engaging in the drafting process.

Together with Tzorg, Visual Contracts determined that the employee demographic was diverse: single or married mothers, independent women in their 40s, middle-aged single men, immigrants and students. Though some of the employees are native Dutch, literacy levels varied from low to average with higher literacy levels noted among students. When literacy levels are low or language barriers exist, it is more likely that individuals will have difficulty understanding, reading or interpreting a contract, and they may rely on friends and relatives as interpreters. When faced with Tzorg’s user-specific issues, Visual Contracts opted to design a largely visual contract.

If the reader looks at the summary page for this contract, while it is not written in English, it’s easy to locate the clauses: where the employee works, what they will make per hour, and the start/end date of the contract. The more “important” and higher risk-related clauses, like termination, are dealt with through more specific language within the contract, but even those clauses are highlighted using illustrations. But could it withstand judicial scrutiny?

Dutch Mock Trial

On April 17, 2024, Visual Contracts hosted a mock trial, which was presided over by a former judge, Dory Reiling. The two trainee lawyers were each assigned a side: one represented the employee and the other represented the employer. In the fictional scenario, the employee, a domestic helper, was terminated by her employer for accepting gifts from a client and for being added as a beneficiary to the client’s Will. The employee’s position was that the gifts were given to her by the client because she excelled at her duties and as a result, termination was not justified. The employer who terminated the contract argued that this was a conflict of interest.

The mock judicial decision considered a factual matrix when assessing the arguments and contractual terms. The court analyzed facts, the law and the parties’ understanding of the employment Agreement. The mock court determined that the contract was clear, “with images and text working together.”[3]

Some Canadian Caselaw on Visual Contracts

When it comes to Canada, the courts haven’t exactly told us what crosses the line of being “too visual”. Generally, we know that clarity is key and that it is important to avoid ambiguity in language. When contractual language leads to a different interpretation of meaning, the contract may be unclear.[4] When contractual language is unclear, courts may refuse to enforce some or all of the contract or extrapolate an interpretation that the parties never intended.

Over the last 10 years, several contract cases heard in the Supreme Court of Canada highlight that decision-makers should not rely solely on language and instead broaden their approach to contract interpretation by reviewing a factual matrix of mixed fact and law.[5] Words are important, but decision-makers should not simply rely on the words on the page. When considering the contract as a whole and giving the words their “ordinary and grammatical meaning,” adjudicators can rely on context, background and what the parties reasonably understood as the meaning of the agreement.[6]

In 2023, a decision from the Saskatchewan Court confirms that a “thumbs up” emoji could be interpreted as agreement or “I approve”.[7] In fact, Justice Keene’s decision acknowledges the shift in societal culture in that images can and do have meaning. Justice Keene highlights the importance of the court tackling these issues:

“Counsel for Achter remonstrates that allowing a simple 👍 emoji to signify identity and acceptance would open up the flood gates to allow all sorts of cases coming forward asking for interpretations as to what various different emojis mean – for example what does a 👊 emoji mean or a 🤝 emoji mean, etc. …I agree that this case is novel (at least in Saskatchewan) but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage – this appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like.”[8]

While this case touches on the acceptance of a contract, there are varying degrees of “visual” elements that can form part of a contract. I have seen contracts that range from being cartoon-based without much language at all, to incorporating simplified language and greater use of white space. Drafters may be hesitant to experiment with visuals because of risk, but as users demand clarity in their contracts, courts will adjust to societal changes and continue to assign visuals legal meaning. While we’ve only addressed a few examples of judges faced with formulating a decision based on visuals in a contract, it seems that in each case discussed above, the decision-makers display an increasing willingness to adapt to social changes. As Justice Keene rightly points out, the courts will have to be ready to meet these challenges.

—

Addendum:

After publication of this article, the Court of Appeal of Saskatchewan released its decision (December 16, 2024) upholding Keene J.s “thumbs up” emoji analysis finding that:

[139] The judge did not err in finding that Mr. Achter’s text message “signed” the contract.

____________

[1] Visual Contracts at Tzorg – Impact Report – November 2024 (Visual Contracts: November 2024) available for download at: https://visualcontracts.eu/blog/download-the-impact-report-visual-contracts-at-tzorg/ .

[2] See Visual Contracts Website: https://visualcontracts.eu/ .

[3] Visual Contracts at Tzorg – Impact Report.

[4] James Knight, Employment Contracts (Lexis: December 12, 2023).

[5] Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 47; Also see, Corner Brook (City) v Bailey, [2021] SCJ No 29.

[6] Ibid Sattva at para. 48.

[7] South West Terminal Ltd. v Achter Land, 2023 SKKB 116 (CanLII).

[8] Ibid at para. 40.