On this National Dictionary Day, a defamation case should remind everyone not to forget their proper punctuation with their proper spelling (particularly those of us who are recidivists). In Australia, a court found that a real estate agent committed defamation due to the lack of an apostrophe.
On Oct. 22, 2020, he posted the message accusing his former workplace and boss Stuart Gan of not paying retirement funds to all its workers: “Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation. Shame on you Stuart!!! 2 yrs and still waiting!!!”
You will notice the posting says “employees superannuation” rather than “employee’s superannuation.” That led Judge Judith Gibson to conclude that the message suggested a “systematic pattern of conduct” by Mr. Gan’s agency:
“The difficulty for the plaintiff is the use of the word ‘employees’ in the plural. To fail to pay one employee’s superannuation entitlement might be seen as unfortunate; to fail to pay some or all of them looks deliberate.”
We have previously discussed the defamation laws in Australia, which can chill free speech. The costs can include use of the “English rule” or “Losers pay” rule. That means that you can end up paying the costs of the other party if you lose. I have been a long critic of the English rule as a barrier for many to the courts. Few people can risk suing a company and bearing its costs if the lawsuit is unsuccessful. The result is that credible cases are often not brought out of fear of crippling costs. We have increasing state and federal rules imposing such costs in the United States.
In this case, Judge Gibson noted that the trial could cost Mr. Zadravic more than $180,000.
Notably, this is not the first litigation over punctuation. In Maine, three truck drivers sued a dairy for overtime pay based on a law requiring time-and-a-half pay for each hour worked after 40 hours, but it carved out exemptions for:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
The problem was “packing for shipment or distribution of.” The court ruled that it was not clear whether the law meant to exempt the distribution of the three categories that followed. Alternatively, it could just mean an exemption for packing for the shipment or distribution of them. The missing “Oxford comma” was the crux of the issue. If there were an Oxford comma after shipment, it would have been clear. The case settled.
So if you want to avoid major damages just remember the advice of author Mary Norris, “Commas, like nuns, often travel in pairs.”