Surfer Penned as Ape-ish Faced Sues Surfing Life Magazine
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SHOW NOTES: THIS WEEK WE DISCUSS Otis Carey sues Nathan Meyers and Surfing Life magazine; defamation of character; reaction; Drug Aware at the Margaret River Pro; Josh Kerr, Spartan, the Box, SUPs and why they are or are not despised; do not watch yourself surf on video; style is all you’ll ever have, pick a good one; plus much more.
DEFAMATION OF CHARACTER AUSTRALIAN LAW (from Wikipedia and elsewhere… so it must be true)
Before January 2006, defamation varied from state to state across Australia, but now there are Uniform Defamation Laws which are similar across all states and territories. The uniform laws adopted and adapted a number of statutory provisions from old laws but still retain the basic principles of common law, which traditionally defines defamation as:
The publication of any false imputation concerning a person, or a member of his family, whether living or dead, by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun, avoid, ridicule or despise him.
Publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.
If a person thinks that you have defamed them and takes you to court, they have to prove that three of these things have happened:
That the words were capable of a defamatory meaning as understood by ordinary members of society. Defamatory meaning could be anything which harms the person, in their reputation, their business or in the way other people treat them. The law does not say that the plaintiff must show actual proof of being harmed; it is enough that the false statement could have led to harm.
That the words identify him as the person defamed. It is not necessary that he should have been specifically named. If he can show the court that a reasonable person would take the words to refer to him, he will probably have a good case. Groups of people (such as small companies or not for profit associations) can sue for defamation if they can demonstrate that the words identified them as a group.
That the words or pictures have been published, that is heard or seen by a third person. The first person is the one talking or writing (you), the second person is the person being talked or written about (the plaintiff), the third person is anyone else who may hear or read the offending matter (such as a reader or listener). There is no civil defamation if the words, however bad or untrue, are spoken or written only to the person about whom they are made.
The March Issue of Surfing Life published an article titled “Poetry Night with Mermaid Killer,” written by long-time surf writer and SL contributor Nathan Myers. In the piece, Myers characterized the feature’s subject, Otis Carey, in a way many deemed careless and racist. Shortly thereafter, SL published an unreserved apology. Today we learned that Carey has levied with a lawsuit against SL and Myers for defamation of character and $200,000 for emotional damages. Here, Myers shares his perspective after maintaining a silence on the issue.
Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views and opinions of The Inertia or Down The Line Surf Talk Radio.
Before I say anything, I will once again say I am sorry. I had no idea what a poorly chosen word that was. I think you’re a fine human. And I also think you’re making a mistake.
Are you really asking $200,000 of myself and Surfing Life Magazine for “defamation of character?” Really? Is this you or the lawyers talking? It seems unreasonable.
Did you read the article? Do you realize that the sentence in which “ape-ish” was intended to convey the folly of my own ill-conceived first impression of you (derived for your dark, gritty Kill the Matador film)? Did you notice how the rest of the paragraph, article and photographs existed entirely to cast you in a flattering light? In our recorded Skype interview I flat out gush about how much I like you as a person. There was never a race-related connotation to the word. Most of us don’t think that way. The very idea makes me feel ill.
When the magazine and myself realized how the word was being misconstrued (ugh!), we all rushed to apologize for the unintended offense. But you wouldn’t talk to us. Instead, you let tabloids do the talking. And now your lawyers.
You realize the amount associated with this lawsuit will put Surfing Life magazine out of business. A 30-year-old labor of pure surfing stoke, shut down because you refuse to forgive a mistake. The editor is mixed race himself, with black and aboriginal blood. The staff is composed of career world travelers. Open minded people. The word went unnoticed because there was no malice or “ism” associated with it. Most of us don’t think like that. It was an honest and very awkward mistake. These aren’t oil-tycoons or corrupt politicians whose jobs you threaten to erase. These are fellow surfers. We all drop in on each other from time to time…what’s important is how you act afterwards. There’s always another wave. And no, we can’t buy you a new golden-finned surfboard.
And, you do realize of course, that surf magazines are how freesurfers like you make your living, right? If the magazine that publishes your photos and writes stories from your travels is put out of business by your sense of vendetta… well, what then? Talk about biting the hand that feeds. I guess if you win the suit you’ll be dining well upon those bloodied knuckles. If you don’t win your suit, you’ll be gnawing fingernails. Neither result sounds very nourishing.
I’m guessing your lawyers don’t surf. You should teach them. It is fun.
The word was a mistake of zero malicious intent. The magazine and the writer apologized profusely. What more do you want besides our jobs, our lives and our history? Is this how you want to be remembered by surfing? The man who killed the magazine?
Have you never been forgiven?
Wouldn’t you rather just go surfing?
The choice is yours.
The Seppo Surfer Who Wrote The Word (And Apologized)– NATHAN MEYERS