October 11, 2021
A missing apostrophe could cost a real estate agent tens of thousands of dollars after an Australian court ruled a defamation case against him could proceed over a Facebook post.
The agent, Anthony Zadravic, who is based on the Central Coast in New South Wales, posted the message on Oct. 22, accusing his former workplace and a man named Stuart Gan of not paying retirement funds to all its workers.
Less than 12 hours later, he deleted the post. But it was too late. Mr. Gan became aware of the message and filed a defamation claim against Mr. Zadravic, setting off a tussle over a punctuation mark no larger than a pinhead in a country that has earned a reputation as the defamation capital of the world.
In matters of punctation, social media is the Wild West. In some corners of the internet, careless grammar is highly tolerated — even a badge of honor. In legal matters, however, disputed punctuation can cost millions.
One recent case in Portland, Me., on overtime for truck drivers hinged on the lack of an Oxford comma in state law. The case, settled in 2018 for $5 million, gained international notoriety when the United States Court of Appeals for the First Circuit ruled that the missing comma created enough uncertainty to side with the drivers. It gave grammar obsessives and those who adore the Oxford comma a chance to revel in the victory.
Legal experts say the case of the missing apostrophe is far from surprising in Australia, which has a complex web of defamation laws and a history of rewarding plaintiffs large sums of money. In 2019, for example, the Oscar-winning actor Geoffrey Rush was awarded more than $2 million in his defamation case against Rupert Murdoch’s Nationwide News, the largest such payout at the time to a single person in Australian history. That same year, a billionaire businessman won a defamation case against a news organization that he claimed had wrongly linked him to a bribery case.
In Mr. Zadravic’s case, the court scrutinized the word “employees” in his post criticizing the company: “Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation,” the post read. “Shame on you Stuart!!! 2 yrs and still waiting!!!”
According to court documents, in his defense, Mr. Zadravic appeared to imply that he had meant to add an apostrophe. After all, who hasn’t mangled grammar in firing off a social media post in a fit of pique?
But a judge in New South Wales shot down his attempts to have the case throttled on the grounds that it was trivial, stating that the absent apostrophe could have been read to suggest 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,” the district court judge, Judith Gibson, said in her statement. “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.”
Judge Gibson noted that the trial could cost Mr. Zadravic more than $180,000, and cited similar cases, including that of an Australian vet who was awarded more than $18,000 after a former client posted defamatory reviews online. In the latest case, it was not immediately clear what kind of recourse Mr. Gan has requested from the court.
Neither Mr. Zadravic’s lawyers nor Mr. Gan immediately responded to requests for comment.
High-profile defamation cases represent only a small fraction of the claims brought before the court each year.
“The courts are awash with claims,” said Barrie Goldsmith, a special counsel with Rostron Carlyle Rojas Lawyers. A Sydney-based lawyer who has been working on defamation cases for more than three decades, he added that such claims would not be feasible in the United States, where the First Amendment protects freedom of speech.
Australia’s notoriously strict defamation laws have raised fears of censorship of the news media. A 2018 survey by the Australian journalists’ union found that almost a quarter of respondents said they’d had a news article spiked that year because of fears of defamation claims.
The union has called for an overhaul of what it called the country’s “outdated” defamation laws. The need has become all the more urgent, advocates say, in the wake of a High Court ruling last month that news sites could be held liable for defamation because of replies posted to their articles on Facebook — even if the articles themselves were not defamatory. Shortly afterward, CNN stopped publishing its articles on the country’s Facebook pages.
In the latest case, Mr. Goldsmith said, the two men were highly likely to reach a settlement rather than go to trial.
“The defendant’s intention is irrelevant,” he said, because a lay person reading the post wouldn’t know what was intended. “On paper, it’s just a really minuscule difference, but in reality,” Mr. Goldsmith said, it’s “major.”
Though the dispute turns on a missing apostrophe, for others, misusing the punctuation is, in fact, tantamount to a crime.
According to Lynne Truss in her book “Eats, Shoots & Leaves”: “No matter that you have a Ph.D and have read all of Henry James twice. If you still persist in writing, ‘Good food at it’s best’, you deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”