Elon Musk May Have Talked His Way Into A Pretty Serious Defamation Lawsuit

from the no-slapp-issues-here dept

So many defamation lawsuits that we see are so obviously bogus on their face that often it feels like we should reconsider the rules for defamation in the first place. Over and over again we see defamation lawsuits that are obviously SLAPP suits, in which the powerful seek to silence those who criticize them. This lawsuit is one of the rare cases where it does not appear to be a SLAPP suit at all -- and, Elon Musk almost seemed to force the hand of Vern Unsworth into suing him for defamation. Musk, who is a visionary innovator, but who has been involved in increasingly bizarre behavior of late, kicked a bunch of this off with a tweet back in July calling Vern Unsworth a "pedo guy" after Unsworth criticized his submarine plan.

If you somehow missed all of this, there were 12 children trapped in a cave in Thailand, and Musk got intrigued by the rescue attempts and very quickly worked with his own engineers to design and prototype a small submarine that might be used to help rescue the kids. There were a lot of mixed reports on all of this, from some thanking and appreciating Musk making such an effort (he even flew to Thailand with the sub) to others mocking him for shoving himself into the rescue efforts. Wherever you stand on that debate, it really makes no difference for what came next. While some of those involved in the rescue thanked Musk for trying (even though his sub wasn't needed), Unsworth, who had spent years mapping the caves and was widely credited for both bringing in the more experienced divers and for helping the rescuers find the kids in the first place, was unimpressed by Musk's sub and said so. Specifically, he called it a PR stunt, said it had no chance of working, and said "he can stick his submarine where it hurts."

Musk -- quite understandably -- didn't appreciate those comments. However, his response calling Unsworth a "pedo guy" really seemed to come out of nowhere, followed up by Musk later betting a Twitter follower "a signed dollar" that it was true. However, soon after, Musk semi-apologized saying:

... my words were spoken in anger after Mr. Unsworth said several untruths & suggested I engage in a sexual act with the mini-sub, which had been built as an act of kindness & according to specifications from the dive team leader.

This is still slightly odd, as I don't think anyone thought Unsworth was legitimately suggesting Musk "engage in a sexual act with the mini-sub," but whatever. The issue appeared to be over, but Musk apparently just couldn't let it die. In August, when someone reminded him of his comments, Musk suggested he actually stood by his original comments by implying the lack of a defamation lawsuit suggested the original statements were true:

You don't think it's strange he hasn't sued me? He was offered free legal services.

Ryan Mac, a reporter at Buzzfeed, then wrote about how Unsworth had not only lawyered up (weeks before Musk's tweet) but also sent Musk a letter warning him of the impending lawsuit (again, sent well before Musk's tweet). In response to this Musk engaged in a truly bizarre series of emails with Mac, in which he not only reiterated some of his claims about Unsworth, but went even further, claiming Unsworth had moved to Thailand "for a child bride who was about 12 years old at the time" and also telling Mac to "stop defending child rapists."

Musk didn't supply any evidence to Mac, despite being asked directly if he could back up those claims. Mac's own reporting also failed to turn up evidence to back up those claims, and also debunked the lesser claims by Musk that Unsworth was "banned from the site" of the rescue divers.

And, that takes us to the actual complaint filed against Musk in federal court in California. The complaint is pretty thorough. It lays out the specific statements that it says are false and defamatory and rebuts them. Ken "Popehat" White notes that some of the statements are pretty clearly not defamatory -- as they're either opinion or hyperbole. But the emails to Buzzfeed with the direct statements including claiming Unsworth took a minor bride certainly appear to go over the line. White notes that there are defenses to this -- including a lack of actual malice (i.e., when Musk said those statements he believed them to be true and had no reason to think they were false). That... might actually fly. But, as White also notes, it seems highly unlikely that Musk can get this dismissed under California's anti-SLAPP law, as at least a few of these statements involve direct statements of fact and (at least on their face) don't appear to be supported by disclosed facts. White doesn't think the original "pedo guy" claim rises to the level of defamation, but that one could go either way. But, still, it really looks like the totally unnecessary emails to Buzzfeed are what really put Musk in a difficult spot in this lawsuit.

Still, the bigger issue for Musk is that the lawsuit notes Unsworth is also planning to file a similar lawsuit in the UK, where defamation laws are significantly more friendly to the plaintiffs, putting a burden on Musk to support his statements. Musk, of course, has basically all the money in the world to defend himself, and I do wonder if he'll try to file a counter-defamation lawsuit against Unsworth over Unsworth's comments (since Musk kept claiming they were false as well). If he does, it seems like Unsworth would actually have much stronger defenses against Musk, as none of Unsworth's comments appear to rise to defamation no matter how you look at them.

Perhaps Musk will decide to fight these cases out in court, though it wouldn't surprise me to see him just pay up to settle the cases and get them over and done with. But, as far as defamation cases go, this one seems a lot more legit than many of the ones we normally see.


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  • identicon
    Anonymous Coward, 20 Sep 2018 @ 9:44am

    He should kill two birds with one stone and just claim that "funding secured" tweet was in regards to paying his legal team for this lawsuit.

    reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 20 Sep 2018 @ 9:55am

    Y’know, if he wasn’t so damn rich, he wouldn’t be in this mess. Deep pockets and all, y’see. So maybe he should, I dunno, give 95 percent or so of his total net worth to charities and underprivileged communities. That could buy him some good will and make him far less of a target for lawsuits.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 20 Sep 2018 @ 10:32am

      Re:

      Plus, if he wasn't so rich and successful, he wouldn't be surrounded by people kissing his ass and praising his every action.

      If people praise your judgement even when it's bad, you're going to wind up with bad judgement.

      reply to this | link to this | view in chronology ]

    • icon
      firebird2110 (profile), 20 Sep 2018 @ 10:39am

      Re:

      His wealth is only relivant if you think it's responsible for him acting like a total asshat.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 20 Sep 2018 @ 10:52am

        Re: Re:

        Well, it’s certainly $5000-a-plate food for thought.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Sep 2018 @ 11:21am

          Re: Re: Re:

          Being rich and powerful just allows people to be themselves.

          Can't get fired if you basically own the company you work at *taps head*


          Although I'd say Musk is slipping into insanity given all the stress he's taken onto himself. His workday is absolutely insane. The responsibility he has is absolutely insane. Not excusing it because he seems to do this to himself since he doesn't hire trusted people to take over more of the job. But unlike the typical low level abused worker who needs to constantly remind themselves "I can't tell this customer how I really feel" he doesn't have to worry about just blasting his frustrations out.

          reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 20 Sep 2018 @ 11:22am

        Re: Re:

        Not his wealth, the amount of weed he smokes.

        He's really gone off the rails with twitter and the like comments the last couple of years. Probably posting while stoned.

        reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 20 Sep 2018 @ 12:33pm

        Re: Re:

        Yeah, non-wealthy people are always getting sued for defamation after arguments over their submarines. Tale as old as time.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Sep 2018 @ 11:27am

      Re:

      So maybe he should, I dunno, give 95 percent or so of his total net worth to charities [...]. That could [...] make him far less of a target for lawsuits.

      Um... he has $20 billion. If he gave away 95%, he'd still be a billionaire (just barely). If he gave away 99.9%, he'd have $20 million. If you don't consider that "deep pockets", perhaps you'd like to hurl some defamation my way... my lawyer will let you off "cheap".

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2018 @ 10:43am

    > But the emails to Buzzfeed with the direct statements including claiming Unsworth took a minor bride certainly appear to go over the line.

    Anytime NBC's Buzzfeed is in the conversation I have to wonder if they're behind the scenes egging on both parties to further stir up a fight.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2018 @ 11:33am

    I bet a signed dollar that Musk gets some fake evidence made up to support his claims.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Sep 2018 @ 12:02pm

      Re:

      "Anonymouus Coward"-signed dollars are potentially a little less in demand than Musk-signed. Then again, we can take more Mary-Jane than Musk can in public conference-calls, so I guess that somewhat evens it out.

      reply to this | link to this | view in chronology ]

  • identicon
    stine, 20 Sep 2018 @ 12:20pm

    it depends.

    The guy is a failed financial advisor. I'm not sure I'd trust him to verify his age.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 20 Sep 2018 @ 1:52pm

    Next thing you know he'll want to run for President... I understand the GOP is for sale. (But would the US ever allow that kind of mistake again?)

    reply to this | link to this | view in chronology ]

  • identicon
    David, 20 Sep 2018 @ 2:55pm

    Well, Musk certainly has a good point

    It's hard to make the claim of "publicity stunt" stick seeing how willingly Musk is embracing publicity disaster these days. As much as I admire the man's abilities to enable technology to go the distance, he looks like increasingly in need of a timeout.

    reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 20 Sep 2018 @ 10:08pm

    "... my words were spoken in anger after Mr. Unsworth said several untruths"

    So, the fact that the cave was so small in several places that the sub could not fit through does not leave anyone with the conclusion this can only be a PR stunt?

    "& suggested I engage in a sexual act with the mini-sub"

    "stick it where it hurts" = "sexual act"? People engage in sex just to feel pain? Who knew?

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 21 Sep 2018 @ 6:42am

      Re:

      "stick it where it hurts" colloquially equates to "shove it up your ass", which is a subset of "engage in a sexual act with it" - with a dollop of the sexual act in question being one that is considered shameful by society.

      reply to this | link to this | view in chronology ]

  • icon
    Jan Tngring (profile), 21 Sep 2018 @ 3:44am

    What if Unsworth looses?

    Musk sent an email to Marc with some statements about Unsworth that potentially would be harmful to Unsworth's reputation.

    Maybe for a while Marc believed the statements. But after some investigation he concluded that the claims were untrue.

    This means that so far in the story no harm at all has been done to Unsworth's reputation. Unsworth could have gotten a bad reputation with Marc, but that did not happen.

    So zero harm done. End of story? No.

    What happens next is that Marc recapitulates Musk's story to the world.

    Superficially, Musk's story about Unsworth actually sounds plausible. I know I definitely believed it for a while. Currently I don't believe it.

    Marc's publication of Musk's story put Unsworths reputation at stake.

    Is Musk responsible for what Marc chose to publish? Can Unsworth successfully sue Musk for that?

    I believe Marc is not liable for what Marc published, because in the US there is something called ”Neutral Report Privilege” without which ”if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue.”

    http://www.dmlp.org/legal-guide/neutral-report-privilege

    But is Musk liable for what Marc published?

    Note that I am asking about liability. Obviously Musk is ”responsible” in the ordinary sense of the word.

    It seems to me that Musk might not be liable. Because look at this paragraph, from Unsworth's complaint:

    ”95. The republication of the Musk August 30 emails by BuzzFeed News was foreseeable and Musk is liable to Mr. Unsworth for their republication”

    Unsworth's complaint points out that Marcs republication was ”forseeable”.

    Is that important? Could this imply that Unsworth needs to prove that Musk foresaw the republication?

    Of course Musk foresaw it! I believe he added ”off the record” to make the temptation even stronger. Of course Musk knows that's not how ”off the record” works.

    But can it be proven? And how important is this question for the complaint?

    If Unsworth looses this complaint, it will look like Musks allegations were true.

    Could it be that Musk 1) insulted Unsworth, 2) tricked Marc into insulting Unsworth to the world, and then 3) tricked Unsworth into suing him only to loose and make the insult stick even more?

    So, don't tell Musk to shove things or you'll get a three stage rocket in your face.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Sep 2018 @ 7:11am

    I have to wonder if Musk's allegations are based on some back channel from his PayPal pals, which is obviously something that shouldn't happen, but I bet it does.

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 22 Sep 2018 @ 4:18pm

    Dear Elon Musk

    Dear Elon Musk:
    By now, I hope someone has let you know you are screwing up and forced you to take a necessary vacation.

    The best way I can think of to live this incident down is to take additional action that makes even Mr Unsworth willingly admit that his original statement ("this is *just* a publicity stunt on your part") was wrong.

    To wit: Develop the technologies that Mr Unsworth thinks would have helped in this and future cave (and mine, such as Sago) rescues. Remember that one life was lost in this rescue, and that an hour's additional delay on site would likely have lost more lives as the pumps failed, so the rescue succeeded by the narrowest of margins.

    The ones I know about are:
    a) sonar-based virtual reality to help a diver visualize his position in dark, turbid water.
    b) Other situational awareness aids for divers -- such as a sound emitting life-line and a way of visualizing its position.
    c) a way not to have to stage large number of air tanks, or a way to do so that creates a conveyor for much of the distance.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Sep 2018 @ 7:53am

    "Musk -- quite understandably -- didn't appreciate those comments."

    It's mostly understandable because Musk is an imbecile who thinks he's going to save the world with his "genius". He had a spat on Twitter with a prominent public transit system designer and refused to believe that mass single person electric vehicles like a huge Tesla taxi service was somehow enormously impractical and unsustainable.

    In many ways, Musk has a striking and frightening similarity to Trump in the way he behaves, and anything he says or produces should be viewed in the same way as anything Trump has ever produced or branded: with extreme caution.

    reply to this | link to this | view in chronology ]


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