Why Elon Musk’s “Victory” In Recent Defamation Suit Was A Joke
I am pretty appalled at the outcome of the recent defamation suit launched against Elon Musk in retaliation to his statements that the plaintiff, Vernon Unsworth, was a “pedo”.
Now if you’ve just joined us down here in the peanut-gallery of this *particular* Musk-incepted three ring circus, a little background material is probably going to be helpful.
As you may remember, mid-way through 2018, a soccer team of Thai youths and their coach went missing amidst rising waters in a labyrinthine cave-complex, sparking a massive international rescue effort that raced against the clock to try to get them out alive. Unsworth was one of the key figures in this campaign, having significant local knowledge (including of the cave-system, which he’d been working to map) as well as diving experience. Indeed, so salient was his importance to the successful outcome of the operation, that he’s been personally honoured by both the Thai and English monarchs for it (the latter with an MBE).
In the aftermath of the rescue, he made a statement in the course of an interview about a submarine which Elon Musk had sent to the site in order to assist, noting that it was rather ill-fit for purpose and seemed to be more of a “PR stunt” than a serious effort to help. And also suggesting a perhaps superior location for it to have its maiden spelunking voyage.
Musk, it seems, did not respond well to such criticism – and took to Twitter to call Unsworth a “pedo guy” and “sus[picous]”.
Now, this is a pretty grave thing to say, I think many would agree. It did not take the arrest of Jeffrey Epstein a little over a year later to make people a lot more sensitive to the possibility that accusations of paedophilia made by the famous might just have something to them. The behavior in question (the sexual crime, I mean, not twitter-flapping insults) is quite rightly regarded as one of the more heinous possible crimes; and regardless of a lack of evidence, the mud thus flung almost invariably appears to stick. It is therefore entirely and eminently understandable that Unsworth felt Musk’s public assertion toward him meant he’d been”effectively given a life sentence without parole.”
So you’d think, therefore, that the resultant defamation action would be one of the more simple open-and-shut cases of reputational protection, most anywhere in the world. But, of course, this being America, you’d be wrong.
One of the defences to a defamation action, in most circumstances, is Truth. It’s not a total defence, but it’s probably one of the best possible ones to have access to. [The most amusing, for my money, is “No Good Name To Blacken”, when it comes to the plaintiff, but despite Musk’s ongoing antics, I digress] The insinuation if one *does not* choose to sue for defamation when such a lurid allegation is made against you, is that it’s because the accuser has just such a defence handy. Or, in other words, as Unsworth’s lawyer put it – “The challenge that was thrown down by Elon Musk was that if you don’t sue it’s true,”
But the Americans really do rather like their free speech. And as I have often observed, free speech over there seems to almost inexorably carry with it the freedom to be downright obnoxious with it. Musk therefore launched a defence built around the idea that he wasn’t actually seriously accusing Unsworth of being a paedophile, he just meant to seriously insult the guy – and that therefore, rather than being defamatory, his tweet was in fact constitutionally *protected* verbiage.
Now, you may or may not think that this is, on the face of it, absolute balderdash. I certainly find it difficult to agree that prohibitions upon the state restricting freedom of speech (which are not, and never have been absolute – even in EagleLand … “shouting fire in a crowded theater” being a canonical US Supreme Court example of *non-protected* speech, for instance) should mean that it’s all of a sudden complete and total open slather to say or to print the most abhorrent of apparently-not-slander about another private citizen. It seems to mean, per this recent decision ‘vindicating’ Musk, that there is and can be no actual restitution and no real shield against blatantly false accusations being made as any malefic malcontent may damn well please – provided that it’s meant as an insult, rather than as a supported statement of supposed fact.
But on the provisio that it was an “insult”, instead of an “accusation”, and apparently somewhat regardless of how just about anybody else might have potentially taken the remark (either as indicating something about Unsworth, or as indicating something about what Musk *believed he knew* about Unsworth) … it’s protected speech, and that’s that. It really is a most curious phenomenon, saying something you *know* to be false, declaring that that’s why you said it, and having that be the defence against the charge of having made a false and injurious statement. But this is, perhaps, why I only have half a law degree, rather than a fool one.
Except here’s the thing: I’m not convinced that Musk’s proffered explanation, that it was just some sort of off-the-cuff rejoinder, and that he just meant “creepy old man” [as the word apparently means colloquially in South Africa, or so Musk claimed], not “paedophile”, actually holds up to any sort of scrutiny at all. Other than a jury, apparently, and they really can be rather difficult-to-predict agglomerations.
You see, Musk didn’t just put out a tweet stating Unsworth to be a “sus[picious]” “pedo”. His response when queried about his allegation – again, on twitter – was to “Bet ya a signed dollar it’s true.”
He then doubled, and then some, down upon his accusation – hiring a private investigator to produce the evidence to support his claim [which never did actually appear – Musk asserts that this was in part due to the investigator he hired being a “professional conman” … which rather means I cannot interject “takes one to know one” at this point, as Musk apparently didn’t] ; and informing a reporter that Unsworth was a “child rapist”, who had relocated to Thailand in pursuit of “a child bride who was about 12 years old at the time.”
He also declared to the same reporter his rather ardent wish that Unsworth “sues me” over the remark; which would to most people surely suggest a supreme confidence in the *truth* of what one had said, rather than some kind of deep and abiding desire to put to the test just how far the US’s legal principles protecting freedom of fact-free speech were prepared to extend.
All in all, it seems pretty darn difficult to genuinely believe that Musk did not mean what everybody else *heard* he meant via his application of the word “pedo”. Either in terms of “pedo” apparently not meaning “paedophile”, or that this was just some kind of clearly non-factual insult just casually bandied about between regular men and not at all intended to be taken seriously by anybody except as a rough barometer of how annoyed Musk was about having his ego pricked.
Musk’s subsequent conduct suggests rather strongly that by “pedo”, he did in fact mean “child rapist” [that’s his words], and that he certainly intended for it to be taken as more than a minor and insubstantial barb. You don’t hire private investigators [‘conman’ or otherwise] to make insubstantial barbs with – you do so to further substantiate them. You also generally don’t invite legal challenge immediately after having rather directly and repeatedly made statements of some increasing level of detail which repeat the allegation … if you are just talking out of the place wherein the submarine was suggested to be lodged.
Or maybe you do. If you’re as rich as Musk is, what’s a little back-of-the-couch millions to put into batting away a defamation suit (or, as it happens, paying off the US Securities and Exchange Commission, in the aftermath of *another* demonstrably false Musk tweet that actually *was* ruled to have been illegal – money and investment, it seems, gets a far more generous shake of the sauce-bottle of justice than does ‘people’ under the US system).
It is to Musk’s (limited) credit that he has apologized for the tweet. Although I am not entirely sure how seriously one can take an apology that comes couched in a rider of it being his absolute right to have said what, and as he did. That smacks of a certain lack of sincerity – after all, *genuine* remorse often tends to mean at least an implicit commitment to make right the harm done, and to at least attempt to avoid doing the same malefic action again.
But even despite this, and even despite the legal grounds upon which Musk won his case effectively heavily inferring that there is no truth whatsoever to his claim that Unsworth was a “pedo” … there is little doubt in my mind that the stench of the spurious allegation’s smeary label shall follow Unsworth about like a noose for the rest of his life. This is not just because such accusations tend to have an enhanced adhesion even over and above other such vicious rumours and gossipmongery ; but because if you google Unsworth’s name, even in connection with the Thai rescue-effort he so heroically contributed to, the first … dozens of hits are almost uniformly but simple headlines stating that Musk won against him in the defamation suit over his being called a paedophile. It is not hard to see how *that* can be easily misread as a vindication of the *claim*, not of its baselessness in the first instance!
Musk’s effective defence was that he could do no (legal) wrong here, as nobody could take him seriously. Unfortunately, even outside this matter, many did and presumably still do.
As this sad, sorry court-verdict shows – just because it’s difficult to take something seriously, does *not* mean it lacks for tangible and detrimental impact.
I feel genuinely sympathetic for Unsworth.
The whole event was bizarre. Those supposedly lost in the caves numbered 13. Such a favourite number to those who delve. No one answered why so many had gone so far without torches, ropes, food, hiking shoes, etc., indeed so little preparation. The rescue preparation/operation was flamboyant to say the least. So who’s right?
Helena – On the contrary, the rescue effort was meticulously planned and executed, and in itself, not without danger. You’ve missed the whole point.
The outcome exceeded the hopes and expectations of the rescuers themselves. I think the National Geographic did a feature on it.
There is nothing, nothing flamboyant about those who take part in search and rescue operations. They are highly skilled – and sometimes they themselves get killed. They deserve our respect, and our thanks, and not being demeaned by Musk, nor trivialised by you.
This is indeed a tragedy for Unsworth – I recall his submarine comment – and I think Musk’s reaction petulant spoilt brat territory. Anything else I could say of Musk is better left unsaid. Your reaction, Helena, is part of Mr Unsworth’s tragedy.
Totally fair and predictable outcome, Unsworth’s reputation was not damaged by the tweets because his efforts in the rescue operation were rewarded with an MBE, a medal from the Thai king, and other honors. So clearly it was never believed he was a pedo. https://www.theguardian.com/technology/2019/dec/06/elon-musk-vernon-unsworth-trial-verdict
In addition Unsworth started the insults by saying Musk should “stick his submarine where it hurts” and started the insults in the first place.
Many people are tired of the law being used to settle stupid disputes, people using the legal system over being offended especially when they start the insults.
NZ should be looking to reform our defamation laws so that people can’t constantly use defamation in NZ to curb freedom of speech aka Andrew little vs Hagaman, Sir Bob Jones files vs Renae Maihi and Colin Craig vs Jordan Williams.
Instead the NZ defamation law should move to the US system where damages actually have to be proved so that people can’t sue each other over mere insults or to scare others, curb freedom of speech and tie up the courts.
Damages should have to be just that, real damage for things that are said, that are not true, not insults said in jest and not believable or for just having an opinion aka petition to strip knighthood off Bob Jones.
If Unsworth had suffered real damages aka people actually believed him to be a peodophile then he should have been awarded damages. But clearly nobody thought that, and he was considered a hero for saving the boys.
Sounds like he was also let down by his lawyers who pushed him to sue based on subjective emotion and greed, not the facts that nobody take tweets seriously or as facts! (apart from the woke!).
Good on both Musk and Unsworth for trying ideas to save the boys.
Remember that one of the biggest hero was actually Petty Officer Saman Gunan who paid the ultimate sacrifice and died helping rescue the boys. https://www.bbc.com/news/world-asia-44734385
Sadly he does not seem to get the recognition he deserves for his role in the rescue.
Blazing saddles could never be made again because a small but litigations members of society, don’t understand irony, sarcasm and satire or heat of the moment exchanges.
For the woke who have no sense of the above, don’t read the Man booker prize winner, The Sellout. Far too many triggers!
Weirdly in NZ, dirty politics which is planned, executed over time and for private gain, seems to be completely acceptable!
Go figure.
Helena – in what way was the rescue preparation/operation flamboyant? Your comment does not make sense. I agree with Snow White. I followed this rescue as best I could through the media (print and television) at the time and from what I read and saw it was meticulously planned and brilliantly executed.
As I understand it the boys who went into the cave system did not anticipate the sudden change in conditions (sudden increase in water levels from torrential rain-fall) preventing their exit from the cave system. Actually, the rising water levels meant they had to go further into the cave system. The point is that those who planned the rescue operation did a superb job, which gets me to my second question – what do you mean “who’s right”? Who’s right about what? You seem to be suggesting that Musk was justified in making his defamatory comment about Unsworth. He was called in by the authorities because he was an expert caver. His job was to give advice but the rescue itself was carried out by the elite Thai Navy Seals.
I totally align with Snow White’s comments. Musk’s idea of using a mini-submarine was ridiculous. If you had watched the television reports at the time some of which showed the water system in the caves and how it worked it would have been obvious to you that a mini-submarine would not have worked and this is what Unsworth quite rightly pointed out. To be called a “pedo” for pointing out the obvious was appalling – but then again what does that say about Musk?
You can it seems claim someone has Russian ties or similar without evidence in the US and get away with that too…
That said its a shame a good man Unsworth has had to go through this……..
It will be interesting to follow up on any change of fortune for the jurors in a year or so. It’s a great cave home of a big white rabbit which adds another angle for me. The movie is out.
“…on the provisio that it was an “insult”, instead of an “accusation”, and apparently somewhat regardless of how just about anybody else might have potentially taken the remark (either as indicating something about Unsworth, or as indicating something about what Musk *believed he knew* about Unsworth) … it’s protected speech, and that’s that.”
I asked a household member – who has some knowledge of this area – about this case. Under US law, defamation isn’t protected speech, unless it’s made about a public figure. Which Unsworth most emphatically isn’t.
To wit:
“Public figures claiming to have been defamed must show that the alleged defamer knew the defamatory statement to be untrue or was recklessly indifferent to the truth.”
https://en.m.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
“Specifically, it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with “actual malice”, meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.[3][4]”
Knowledgeable household member has opined that the jury worshipped Musk and let him off the hook out of adoration.
God knows I’d rather not be posting a link to the Guardian, of all dreadful little rags, but here it is. The jury actually found that Musk did not defame Unsworth, that Unsworth’s lawyers had not proved their case; not that what Musk said was protected speech:
https://www.theguardian.com/technology/2019/dec/06/elon-musk-vernon-unsworth-trial-verdict
In my view, Musk is an odious little man, and the jury was wrong. But my opinion matters not a jot….
I tried reply to a comment, but upon refreshing that comment I was replying to disappeared. Oh well. I’ll leave my own. Wanted to say, Musk released emails way back when where his complete efforts were cautiously offered to a contingency planner who welcomed his efforts and coordinated with him. He didn’t want to be thought of or seen as interfering only helping if and where and how he could. So clearly when the dude said yes, and someone else later disparaged him, perhaps from ego and just echoing the way the media covered him as butting in, and competitiveness as if it was a race. He was supposed to be offering a backup plan, not a primary plan. The other dude was running a primary plan. Perhaps the other dude didn’t like the thought that anybody needed to make a backup plan because that presumes there is a risk of his failing. Where peoples lives are involved nice to have plan b(s) just incase. I think his disparagement of musk caught musk offguard because he was welcomed to participate by the guy he was in correspondence with. Unsworth comment was really disrespectful to someone just trying to help. He was in a moment where he could get away with saying anything and went with it. Musk’s reaction was reasonable but his choice of response clearly wasn’t. I actually wanted the case to go against him because I agree that you can put someone in a socially ostracized situation by calling them out in such a taboo style. Though an article covering jury comment had one saying, it was more that unsworth’s team played up trying to sway jury emotion rather than sticking to logic and facts and proving their case that route. If he had different lawyers perhaps he would have a potentially different result. Guess hard to know quality of ur lawyers till after the fact.
Esteb – Okay, I’m going to come clean here. I don’t like Musk because I think he’s bloody ugly. Plus all that other stuff.
I guess that puts me in some alphabet category. Please don’t say feminist. I don’t know what it means. I have a neighbour whose son leaps up and spouts stuff about feminists whenever he sees me, and I have to creep past their house now the way my poor old Mum crept past the Campbells in case their dog heard her.
How do you think I feel about judging a man on his looks ? Just how bad is that ?
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