A real estate agent has been sued for damages for defamation after failing to use an apostrophe in a Facebook post, which could ultimately cost him more than $180,000. During a time when defamation cases are ubiquitous, this serves as a stark reminder to be careful what you say or write online, explains Attwood Marshall Lawyers Commercial Litigation Senior Associate Jade Carlson.
Background
On 22 October 2020, Anthony Zadravic posted on social media that another real estate agent was “selling multi-million $ (sic) homes in Pearl Beach but can’t pay his employees superannuation”.
“Shame on you Stuart!!! 2 yrs and still waiting!!!” the post allegedly read.
Since the word ’employees’ did not have an apostrophe, the post implied that he was referring to several employees, rather than himself.
Though Mr Zadravic removed the post within 12 hours, the agency he had previously worked for was made aware of it and subsequently commenced proceedings against the former employee seeking damages under the Defamation Act 2005 (NSW).
Mr Zadravic pleaded to the court to dismiss the petition, saying the failure to punctuate social media posts was trivial. Nevertheless, the court allowed the case to proceed, citing the seriousness of the claim in it.
Judge Judith Gibson ruled that the lack of an apostrophe on the word “employees” could suggest a “systematic pattern of conduct” by Mr Gan’s agency rather than an accusation involving an individual.
Judge Gibson indicated that the trial could cost Mr Zadravic more than $180,000.
The court referred to two recent Queensland decisions in which Facebook posts cost their authors dearly.
In 2020, a Brisbane veterinarian was awarded $25,000 after a former client repeatedly claimed on Facebook and other websites that the veterinarian had grossly overcharged her.
In 2019, the court awarded $15,000 over claims on Facebook that an aged care nurse was sacked for alcohol use.
Meanwhile, in August 2021, the federal court found in favour of basketballer Ben Simmons’s half-brother over baseless child abuse claims about him.
In the same court, the defence minister, Peter Dutton, sued a refugee activist over a tweet labelling him a “rape apologist”.
Social media platforms propagate information easily, widely, and quickly by their very nature.
Identifying defamation
Defamation is the publication of material, either orally or in writing, which harms a person’s reputation. The material can be in written form, pictures, or spoken statements. This includes social media posts and messages.
To succeed in an action for defamation, the plaintiff must prove that:
- the material has been published to a third party;
- the material clearly identifies and is about the plaintiff; and
- the material had defamatory imputations about the plaintiff.
If the above elements are proven in court, and there is no arguable defence, then the court may make an award of damages. In the case of general damages, the court will seek to award damages proportionate to the harm caused to the plaintiff’s reputation.
What is the limitation period for bringing defamation proceedings?
The time limit for action in a defamation claim is 12 months following the publication of the defamatory material. If a person fails to commence court proceedings within this period, they will not be able to bring an action in defamation, without leave of the court.
A court can potentially extend the limitation period to three years after publication, however, the plaintiff must prove that it would have been unreasonable of the plaintiff to sue within 12 months from publication. An extension will only be granted in extenuating circumstances. If you think that a limitation date to your potential claim is approaching, you should obtain urgent legal advice to find out where you stand.
Compensation if defamation is proven
The amount of compensation awarded for defamation is vastly dependent on the circumstances of each case. There is no fixed formula or way that the courts calculate defamation damages.
Damages can be a minor amount in Australia or sometimes millions of dollars.
A more considerable amount of compensation is likely to be awarded where the defamed person has suffered severe and significant harm, usually resulting in financial and personal hardship.
If you are considering commencing a claim for defamation or you are required to defend a claim, you should take into account that court proceedings are usually expensive. Therefore, you must seek legal advice about the likely legal costs before proceeding with a defamation claim.
Can a company sue for defamation?
Small businesses and not-for-profit companies can sue for defamation, but larger companies are barred.
Under the relevant defamation legislation in each State, a corporation is not permitted to sue for defamation unless it is an “excluded corporation”. An excluded corporation is a not-for-profit or a company that employs fewer than ten people.
Even if a corporation is prohibited from suing for defamation, it may still be able to sue for injurious falsehood. Injurious falsehood is an incorrect statement concerning a business that is published to a third party. For example, an online review site or social media platform that members of the public read, is made maliciously and precipitates actual damage to the business.
It is typically harder to prove an injurious falsehood than defamation for two reasons. First, the plaintiff must prove that the defendant made the statement maliciously, i.e. intending to harm the plaintiff. Second, the plaintiff must prove that the statement caused actual damage, such as an increase in customers seeking refunds or a loss of sales. These thresholds can be challenging to satisfy, depending on the facts of the case.
How to avoid publishing defamatory content
As part of a risk management strategy, organisations should have appropriate policies in place and, depending on the nature of the organisation, consider training employees and volunteers. In addition, organisations that post blogs use social media, podcasts, broadcast and publish information to the public need to be mindful of imputations conveyed in these publications.
It’s a common misconception that defamation claims can be avoided by not mentioning someone’s name. If the imputation of defamation conveys concerns of an aggrieved person (regardless of whether their name is mentioned), and a reasonable person could identify that, the material can be defamatory.
This proved to be the case in the high-profile defamation trial between Johnny Depp and Amber Heard. Mr Depp sued Ms Heard for defamation after she had penned an opinion piece in December 2018 that was featured in The Washington Post which made a statement about domestic abuse. Although the article did not mention Johnny Depp by name, it was clear that the article was referring to him and the couple’s tumultuous relationship. After a six-week trial, the jury found in favour of Mr Depp on all elements of his claim, including whether the statement made was defamatory and that Ms Heard had defamed Mr Depp with actual malice.
What if someone claims you have defamed them?
Having a defamation claim made against you or your organisation can be extremely stressful. If you have been served with a ‘Concerns Notice’, take note of the timeframes outlined for an offer to make amends, and seek advice from an experienced defamation lawyer. Non-litigious options may be available to a publisher accused of publishing defamatory material, but the timeframe for accessing these options is short.
Attwood Marshall Lawyers – helping you navigate the complex nature of defamation and litigation
Defamation is a complex legal matter. At Attwood Marshall Lawyers, we have lawyers experienced in representing plaintiffs and defendants in defamation disputes.
Our proficient defamation lawyers can assist in all defamation matters to help you protect your personal and professional reputation. If something has been written, said, or published about you that you believe has damaged your reputation, contact our team to find out where you stand.
We are available on our 24/7 phone line on 1800 621 071, or by contacting Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au
You can visit our experienced team at our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney or Melbourne.
Read more:
Is it defamation if it is true? Understanding the consequences of making statements about someone else publicly
Peter Dutton loses financially on his defamation “win” as he is ordered to pay a portion of refugee activist’s legal bill: was it all worth it?
Man sues Google for Defamation and wins
