Can WhatsApp messages be legally binding?

Imagine, for a moment, that a WhatsApp message is sent, offering a friend or family member some item for a specific price, to which a “thumbs up” emoticon is received in response to the offer.

To what extent would such an exchange of messages be binding? Many people believe that contracts are only binding when the agreement is placed on paper and physically signed, but this is not always true.

Sometimes messages over electronic platforms (like WhatsApp) can be more than just personal messages and can be legally binding agreements. This was illustrated in a recent 2024 Ugandan court case (Mugarura v Paramount Hospital Kampala), where a series of WhatsApp messages was found to be written proof of the agreement between the parties.

Here, the court also regarded the WhatsApp messages as a valid contract. The effect of this case is that messages sent via the WhatsApp platform may have legal consequences.

However, the problem with WhatsApp messages does not stop here. Even if a WhatsApp message could be legally binding in certain circumstances, to what extent would such a message be legally binding when emoticons (like in the earlier example) are used?

After all, using emoticons is a common occurrence in WhatsApp messages, but little thought is given to the actual meaning of such emoticons. Still, the actual (or perceived) meaning that is attached to emoticons can become problematic when agreements are concluded via the WhatsApp platform.

Despite the difficulty of attaching a universally accepted meaning to such emoticons, it does not mean that the use of emoticons would necessarily impact the potential binding nature of a WhatsApp message.

Take, for example, in 2023 a Canadian case (Southwest Terminal v Achter) required the court to determine the meaning of a “thumbs - up” emoticon in a WhatsApp response to a proposed contract.

The court found that this emoticon was sufficient to confirm the agreement between the parties and the emoticon was enough to conclude that the parties had agreed to the contract that was sent via the WhatsApp messages.

From a South African perspective, nothing prevents WhatsApp messages from being legally binding contracts. Already in 2019, (Kgopane v Matlala) a South African court was faced with determining the binding nature of a WhatsApp message sent from a man (who had won the Lottery) to his ex-girlfriend.

The message read as follows: “If I get 20m I can give all my children 1m and remain with 13m. I will just stay at home and not driving up and down looking for tenders.

”When the money was not paid, the man was sued. During the trial, it transpired that the man had never intended the message to be a serious and legally binding offer. If such an offer was, infact, intended to be legally binding, it would have been possible for the contract to have been concluded via the WhatsApp platform.

In fact, from a South African perspective, nothing prevents a contract from being concluded via electronic platforms like email, SMS or even WhatsApp. The reason for this is that the Electronic Communications and Transactions Act of 2002 recognises the legal and binding nature of data messages and that of electronic contracts.

This means that if WhatsApp messages are of such a nature that the parties intended the agreement to be binding on themselves, then our courts would likely hold such an agreement as legally binding.

There appears to be a global trend in recognising electronic contracts. Already in countries like Canada and Uganda, the use of WhatsApp and emoticons in such messages has been accepted as legally binding agreements.

WhatsApp messages used in jest or sent only for personal reasons that were never seriously intended to be a contract cannot be considered legally binding. However, those messages where the circumstances surrounding the WhatsApp messages can show the parties intended something more and were seriously considering concluding a contract could be legally binding on people who send and respond to such messages. The message is then: be careful before sending WhatsApp messages.

■ Prof Van Eck is an associate professor and head of the department of private law at the University of Johannesburg. She writes in her personal capacity