In an ongoing UK case a defendant has alleged that the posting of a sad emoji face as part of an update to customers was a breach of contract.

Phones 4U Limited (in administration) v EE1 Limited concerns a dispute involving the termination of a contract between mobile phone retailer, Phones 4U Limited ("Phones 4U") and mobile network operator, EE Limited ("EE"). As part of EE's counterclaim, it is alleging that the posting of a sad emoji face by Phones 4U as part of its service update to customers was a breach of contract.

Administrators were appointed to Phones 4U following confirmation that EE would not be renewing or replacing the trading agreement that was due to expire between the parties. The decision by EE followed other mobile network operators who had either not renewed or terminated their individual trading agreements already. Following the appointment of administrators to Phones 4U, EE terminated the trading agreement in advance of its expiration. Phones 4U subsequently issued proceedings against EE claiming for unpaid commission fees pursuant to the trading agreement and EE counterclaimed for damages resulting from the loss of bargain arising from the termination of the contract. Phones 4U was successful in its preliminary application for summary judgment dismissing the loss of bargain claim. As part of its judgment, the Commercial Court noted that EE are also pleading a breach of contract counterclaim alleging that Phones 4U made unauthorised, false or misleading representations when it posted a statement online explaining why Phones 4U were offline and concluding with a sad face emoji.

If this claim continues to be maintained by EE until the trial, this could be the first case that provides the UK courts with an opportunity to consider whether the use of an emoji constituted a breach of contract. Given the now prolific use of emojis in all aspects of life, it is likely that the legal effect of emojis will be ventilated before the Irish Courts in the not too distant future. The outcome of this case may have persuasive authority in Ireland and in any event could be illustrative of the approach the Irish Courts might take to such an issue.