Otis Carey seeks his day in court
Yesterday the surfing world was embroiled in a race furore following news that professional freesurfer Otis Carey has lodged a court case against Surfing Life magazine and one of its contributors.
To understand the issue some background is required: In the last issue of Surfing Life Bali-based contributor, Nathan Myers, wrote a short article titled “Poetry Night with Mermaid Killer" about Aboriginal surfer Otis Carey. In the article Myers clumsily portrayed Carey as being "ape-ish", a term Carey and many readers took offence to because of its racist connotations. Shortly thereafter, Surfing Life published an unreserved apology. Despite the apology Otis Carey now intends to sue Surfing Life and Nathan Myers for defamation seeking $200,000 in damages.
Adding to the imbroglio Myers has spoken out against the lawsuit in Tracks magazine and The Inertia, apologising once more, admitting his ignorance, and laying himself at the mercy of Carey.
The issue has thrown a hot coal on race issues currently simmering in Australia, largely in part to the Federal Government's proposed watering down of the Racial Discrimination Act. That Australia's 2014 Person of the Year, Indigenous AFL player Adam Goodes, is involved - Carey sought counsel in Goodes after the original article - is also adding to the exposure.
Yet despite the racial connotations Carey is not using the Racial Discrimination Act to seek redress, but a civil lawsuit of defamation, a more generic charge not specific to racism. The Racial Discrimination Act is controlled by the Human Rights and Equal Opportunity Commission and mediation is a compulsory part of the process. In fact, only 3% of all complaints lodged even make it to court, the vast majority being resolved by concilliation.
If Carey were to pursue that course of action the charge against Surfing Life and Myers has a far higher chance of being reduced. Due to the context - use of irony in a written piece - the charge would almost certainly be considered low level vilification and an apology or statement in the public arena be considered appropriate compensation.
All Myers would have to do is show he was ignorant of the cultural connotations and meant no malice.
In contrast, defamation is a civil lawsuit between two parties and is different in nature than racial vilification laws. It's a charge that would concentrate the question on whether the statement was harmful to Carey's reputation in the eyes of an ordinary person and, importantly, not on any racially motivated issue. Which makes Myer's open letter futile: the court doesn't have to prove Surfing Life or Myers were driven by race.
It's also a charge that, if succesful, is more likely to result in an award for damages. All the plaintiff has to prove is that the defamation brought their reputation into disrepute. Carey doesn't have to show Myers and Surfing Life tried to hurt him, just that they did hurt him, irrespective of their intention.
Lastly, the fact that it's a defamation case and not racial vilification would imply that Otis is intending to follow through with the lawsuit. Some commenters, Myers included, have speculated that Carey's actions were more public statement than course of justice. The implication being that Carey wouldn't follow through. The fact Carey has chosen the route of defamation - less controversial but more likely to succeed - would appear to prove this false.