Defamation by Punctuation: Missing Apostrophe Leads to Liability in Australian Case

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.”

 

16 thoughts on “Defamation by Punctuation: Missing Apostrophe Leads to Liability in Australian Case”

  1. Yes, punctuation has long been important, and its misuse can be costly in legal matters. For example, when Ulysses S. Grant was president, the federal government passed a new tariff act. A previously passed tariff act specified that “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation” were exempt from the import tariff. The problem was that a comma was mysteriously inserted into the phrase between the words “fruit” and “plants,” so that the exemption applied to “fruit, plants, tropical and semi-tropical for the purpose of propagation or cultivation.” At the time, imported oranges, lemons, bananas, pineapples, grapes, coconuts, and other fruits were subject to duties of 10% to 20%. But the insertion of the comma between “fruit” and “plants” indicated that fruits were now on the exempt list. William Richardson, then Secretary of the Treasury, argued that the comma was intended to be a hyphen, so that the exemption applied to “fruit-plants” and not “fruit” and “plants.” Nonetheless, two years after the mistake, the government agreed that the tax wouldn’t apply to imported fruit, and even refunded the duties that had been paid since 1872. As a result, fruit importers collectively received $2 million—over $40 million in today’s dollars—back from the government.

  2. MEN DO WHAT THEIR POWERS DO NOT AUTHORIZE, [AND] WHAT [THEIR POWERS] FORBID

    Alexander Hamilton warned of abuse of power, arguing for discipline, and for strict adherence and constraint to fundamental law, lest men of ulterior motives prevail.

    The singular American failure has been and remains the judicial branch, with emphasis on the Supreme Court.
    _______________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “…men…do…what their powers do not authorize, [and] what they forbid.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

  3. And be careful with the use of quotes (“).

    I was sued in small claims court for a review made on Yelp against an MD with a serial record of suing anyone who writes a negative review against him. He claimed defamation and wanted $10k (the max allowed here in CA). While I believed that everything I wrote was factual, the fake judge wasn’t especially interested and didn’t even appear to understand the basics of defamation law (that I had gained reading Nolo and other sources), instead focusing on one statement I had made about the plaintiff, which I had enclosed in quotation marks as a means of emphasizing because Yelp doesn’t support bold or italic. She asked “Did he make the statement you have enclosed in quotes?” I explained that I used the quotes to help the statement stand out, not that it was a verbatim quote. She didn’t accept this explanation.

    A few weeks later I received the judgement. I had to pay $1 and the cost courts of the plaintiff. But at least he didn’t get the $10k he wanted and the negative review remains up on Yelp forever, so I consider that a win on my part.

    This was my first ever experience in any court and I learned that despite months of study on defamation (via Nolo and law blogs across the internet), the legal definitions and rules don’t apply in small claims court.

    What I also found disconcerting was that there wasn’t even any kind of written or recorded transcript of the proceedings to refer back to if I had chosen to appeal the judgement into Superior Court. I understand that I would have had to start over from zero anyway but it would have been helpful to have had a transcript of what was said prior. When I wrote a complaint on this to the head judge of the courts, I was told that they didn’t have enough budget to afford recording and transcription of small claims cases. Sheese.

    So should you find yourself in a small claims court visit, make sure to bring your own recorder!

    1. I have no idea how to weigh the merits of your story.

      But if you are under the impression that Judges and magistrates know or give a damn about the law – you are delusional.

      Further they are even less inclined – as in they will likely completely ignore a pro se litigant trying to argue the law.
      It is irrelevant where you got your information nor whether you are correct on the law or not.

      With specific reference to the details YOU provide of your case – the fact that Yelp does not provide the means to emphasize text does not permit you to do as you please and expect that the result will be read as YOU wish.

      If you quote something and that results in the possibility of reading it as a false defamatory statement of fact rather than an opinion then you have defamed the other party.

      Another parties history of serial litigation is not proof they are wrong.

      Some people are defamed more than others.

      It is the norm atleast in my state that matters before a magistrate have no record.
      In fact all the standards are law – even the lack of focus on the law itself is not unusual at that level.

      It is also common place that an “appeal” to superior court means “starting over” – The magistrate hearing is informal.
      Appeals are not actually appeals they are proper (hopefully) legal proceedings in front of an actual court.
      For the most part that is actually a good thing.

    2. You MIGHT be able to bring a court reporter to a magistrates hearing.

      But it is unlikely you can bring an electronic recorder, and trying to do so might get you charged with something – depending on the state.

  4. But Prof. Turley, a little proofreading would be helpful: “The court ruled that it was not clear whether the law mean [sic???] to exempt the distribution of the three categories that followed.”

    1. Three cheers for the brave and courageous Anny-mouse!

      Hip! Hip! Hooray!

      Please step forward to receive your award for being the only human in history to have never made a mistake.

  5. Seen on my teenage grandson’s tee shirt:

    Let’s eat, Mother.
    Let’s eat Mother.

    PUNCTUATION SAVES LIVES

    1. 🤠

      Welcome back. Hope ya’ll are safe in Texas!
      Texas and Florida are role models for the other 48 states.

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