Popehat

A Group Complaint about Law, Liberty, and Leisure

  • About
  • Free Speech Resources
  • Blogroll
  • Free Speech
  • Criminal Justice
  • Law
  • Politics & Current Events
  • Fun
  • Art
  • Geekery
  • Gaming
  • MAKE NO LAW Podcast

Cave Diver Vernon Unsworth Sues Elon Musk

September 17, 2018 by Ken White

If aliens grabbed some rando popped-collar douchebro off of a frathouse roof, Uplifted his brain, and handed him a billion dollars, they'd wind up with Elon Musk, a furiously rich, frighteningly smart visionary and ambulatory Ed Hardy shirt. The wisdom-dump-statted Musk has been terrifying Tesla shareholders by careening from one bizarre antic after another. It might be said of him that we are all constantly called upon to hold his beer.

This week finds him hailed to court. Musk made news recently for his antic crescendo of insults and accusations against a cave diver named Vernon Unsworth, who had the temerity to suggest that Musk's efforts to helped cave-trapped Thai children were poseur nonsense. Erratic billionaires don't take criticism well as a rule, and Musk suggested, then denied, then doubled down again and insisted that Unsworth is a pedophile. This is the point at which prudent people seek a court-ordered conservator over the antic person, except this antic person can send rockets into space and back.

Unsworth, after threats, has now sued. The lawsuit — filed in United Sates District Court in Los Angeles — is here. It's in federal court based on diversity jurisdiction — that is, because the parties are from different states and/or countries (California for Musk and England for Unsworth) and asserts but one count of defamation. The defamation claim is very thoroughly drafted — it sets for all of the complained-of statements and their context quite thoroughly, and even attaches tweets and articles to show the full context. Unsworth claims that Musk has falsely accused him of being a pedophile, a person who has engaged in pedophilia, a child rapist, a child sex-trafficker, the husband of a 12-year-old child bride, and a liar.

So how does this play out?

Most likely the whole case turns on whether these are provable false statements of fact, as required for defamation. Rhetorical hyperbole, insult, shit-talking, bloviating, pure opinion, and other expressions not reasonably taken literally as assertions of fact are not defamation. Opinion based on disclosed facts — "look at this article about what he did, Elon Musk clearly has a personality disorder" — are not defamatory. But a statement reasonably taken as one of fact — or an opinion expressed in a way to imply false undisclosed facts — can be defamatory.

So where do Musk's musings come out?

In my view, and tracking the statements listed in Exhibit A to the Complaint:

1. The 7/15/18 tweet where Musk says it is "sus[picious]" that Unsworth lives in Thailand is an opinion. It's a stupid one, but it's an opinion.
2. The 7/15/18 tweet where Musk calls Unsworth "pedo guy" is likely insult and hyperbole. Whether something is a statement of fact is determined by context, as viewed by people familiar with it. Twitter is a place for non-specific shit-talking, and people viewing it are less likely to see things as statements of literal fact. Absolutely nothing in Musk's tweet supports or suggests he has some basis for calling Unsworth a pedophile; the much more reasonable interpretation is that it's shit-talking and insult.
3. The 7/15/18 tweet where, confronted with his accusation, Musk says "bet ya a signed dollar it's true" is also likely hyperbole, insult, and opinion. Nothing about it suggests Musk has any basis to be making a factual claim and the entire context suggests trash-talking.
4. Musk's 8/28/18 tweet saying it's strange that Unsworth hasn't sued — implying that therefore he must be a pedophile — is an argument and opinion, not an assertion of fact, and again is in a context suggesting trash-talking and insult.
5. Musk's 8/30/18 email to Buzzfeed is another story. He claims that Unsworth moved to Thailand to marry a 12-year-old child bride. That's a statement of fact. He also accuses Buzzfeed of defending child rapists and lays out his evidence for his accusation that Unsworth is a pedophile — including the child bride allegation. This part gets more complicated. An opinion based on disclosed facts — even if it's a stupid opinion — is protected so long as the disclosed facts are true. But here Musk is offering his opinion that Unsworth is a pedophile and premising it on the claim that he married a child bride, which Unsworth says is false. That makes this section potentially defamatory.
6. Musk's allegation in a second 8/30/18 email that he was told that Unsworth was banned from the site is potentially defamatory if that's false and he was not told that.

So: in my view there are some potentially defamatory statements here. There are potential defenses — Musk would try to argue that Unsworth is a limited purpose public figure and that Musk didn't make the false statements with the requisite actual malice (knowing the statements to be false or with reckless disregard as to their falsity). It's a defensible case, but not a case, in my view, that gets kicked out early through a motion to dismiss or motion under California's anti-SLAPP statute, which applies to a limited extent in federal court in California.

It will be interesting to see what Musk files in response. The suit reveals, if nothing else, a CEO acting in a disturbingly erratic manner. Musk will have a much grimmer time in England, which has far less speech-protective laws, if Unsworth sues there.

Last 5 posts by Ken White

  • Now Posting At Substack - August 27th, 2020
  • The Fourth of July [rerun] - July 4th, 2020
  • All The President's Lawyers: No Bill Thrill? - September 19th, 2019
  • Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
  • All The President's Lawyers: - September 11th, 2019
  • Click to share on Twitter (Opens in new window)
  • Click to share on Facebook (Opens in new window)
  • Click to share on Google+ (Opens in new window)
  • Click to share on Reddit (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)
  • Click to share on Tumblr (Opens in new window)
  • Click to email this to a friend (Opens in new window)
  • Click to share on Pinterest (Opens in new window)

Filed Under: Law Tagged With: Defamation, Free Speech

Comments

  1. Jonathan Kamens says

    September 17, 2018 at 12:14 pm

    Why didn't Unsworth sue in England? Any guesses? His choice of jurisdiction is puzzling to me.

  2. frymaster says

    September 17, 2018 at 12:23 pm

    Why didn't Unsworth sue in England? Any guesses? His choice of jurisdiction is puzzling to me.

    My assumption is because if he wins in California, it's easy to collect, whereas if he wins in the UK, it still requires going to court in the US in order to collect?

  3. MD says

    September 17, 2018 at 12:23 pm

    Amazing to see a defamation suit that didn't get the Popehat "Snort My Taint" Seal of Disapproval.

    IANAL. If Musk's senseless allegations here do not count as "reckless disregard for facts", then what does? Is there precedent defining the boundary?

  4. Sean Reilly says

    September 17, 2018 at 12:23 pm

    Maybe Elon Musk doesn’t have any assets in England? Tesla definitely does have assets in the UK, but IF Elon doesn’t have anything there, and if the USA SHIELD act prevents Unsworth from enforcing an English judgement in the US, maybe it’s not worth it?

    Or os it possibly that the suit is bankrolled (I assume it’s bankrolled by someone in some fashion) by someone who wants discovery in a US court? Say somebody short on Tesla stock?

  5. Claire says

    September 17, 2018 at 12:24 pm

    They've made it harder to bring suits in the UK without significant presence and Unsworth may be a British national but he lives in Thailand. IANAL but that would be my guess.

  6. Ryan says

    September 17, 2018 at 12:25 pm

    According to the lawyer a separate suit is indeed being prepared for England so Musk is likely in for it there

  7. The 984 says

    September 17, 2018 at 12:28 pm

    Does Musk have the requisite connections under British law to be sued there personally? I'm sure the UK has some form of personal jurisdiction requirements.

  8. Scott Jacobs says

    September 17, 2018 at 12:32 pm

    So if Musk fails to get this kicked, and the issues around the emails survive a MTD, would an accusation of being a pedophile be defamation pro se? I mean, I don't know how the guy can prove actual damages otherwise.

  9. Jonathan Kamens says

    September 17, 2018 at 12:33 pm

    My assumption is because if he wins in California, it's easy to collect, whereas if he wins in the UK, it still requires going to court in the US in order to collect?

    Ah. Right. I forgot about the SPEECH act: https://fas.org/sgp/crs/misc/R41417.pdf

  10. SIrWired says

    September 17, 2018 at 12:42 pm

    Is calling somebody a literal pedophile really "trash talking"? A "creep", "sketchy", "crook", "duplicitous moron", "somebody I'd never, in a million years, leave alone with children", sure.

    But calling somebody a "pedophile" I think crosses over the line vs. "trash talking"; there's no indication he did not intend the statement to not be taken literally, and doubling down on it later (with a much more straightforward statement of fact) certainly suggest to this layman that he DID indeed mean for it to be literal.

    I'd say that if it DID turn out to be true, a putative bettor might have trouble collecting on that inscribed Washington, we could certainly reasonably claim that it was not a true offer of a wager. :-)

  11. Ross M says

    September 17, 2018 at 12:49 pm

    He is also, separately, suing in England. See paragraph 109, page 17 of the US lawsuit/claim form: https://www.popehat.com/wp-content/uploads/2018/09/031129002676-1.pdf

    See here for details of his lawyer in London https://www.howardkennedy.com/people/mark-stephens

  12. Richard Carlson says

    September 17, 2018 at 12:51 pm

    I TRUST MUSK!

  13. Jonathan Kamens says

    September 17, 2018 at 12:59 pm

    @SirWired:

    Regardless of whether Musk meant for it to be a literal accusation when he made it, clearly he's not going to admit to that now — he's going to say that it was meant as hyperbolic trash-talking — and clearly there's no contemporaneous proof of his intent.

    In any case, it's my understanding that his intent is irrelevant. What matters to the claim of defamation is whether a reasonable person would interpret the words Musk wrote, in the context in which he wrote them, to be an assertion of fact. Ken's arguing — though I certainly don't think he's claiming that it's a sure thing — that a reasonable person would not interpret them thusly.

    If Musk knows what's good for him, SpaceX, Tesla, and their shareholders — and, frankly, there's little evidence that he does — he would apologize and settle ASAP. Even if Unsworth loses the case, defending against it is going to put Musk embarrassingly in the news on and off for years.

  14. The Other Dan says

    September 17, 2018 at 1:00 pm

    @Kamens according to the Beeb he is suing in both California and the UK.

  15. Jonathan Kamens says

    September 17, 2018 at 1:09 pm

    If Musk's senseless allegations here do not count as "reckless disregard for facts", then what does? Is there precedent defining the boundary?

    Reckless disregard for the facts means, basically, asserting something defamatory when you know — or should reasonably have known — that the thing you are asserting is false.

    While clearly Musk did not have solid evidence that his accusations were true, he also did not have solid evidence that they were false, so his statements do not rise to the level of reckless disregard for the facts.

    For example, if a popular national magazine were to publish an exposé accusing several fraternity members of gang-raping a fellow student, and they relied in their reporting on the account of the alleged victim, and there were numerous large factual inconsistencies in her story which they made little effort to reconcile, and they didn't even interview several of the people involved in the alleged rape before publishing their story, that's reckless disregard for the facts. Just speaking theoretically, of course.

  16. Richard says

    September 17, 2018 at 1:20 pm

    Could filing the lawsuit in the U.S. be a strategy to prove, to the satisfaction of the SPEECH Act, that "the defendant would still have been found liable even under U.S. Law in a U.S. court, applying the First Amendment," so that the UK judgement might be enforced in the U.S.?

  17. SirWired says

    September 17, 2018 at 1:34 pm

    While clearly Musk did not have solid evidence that his accusations were true, he also did not have solid evidence that they were false,

    I didn't know you could accuse somebody of specific serious crimes out of thin air by merely actively avoiding the least bit of effort to verify your claims ahead of time.

    I thought the standard was that you at least needed a source for your claims that at least has the barest whiff of credibility so you can put on a straight face and say you thought it was true. And I don't think "Lives in [city]" qualifies.

  18. anne mouse says

    September 17, 2018 at 1:50 pm

    Ken, I find your analysis rather odd.

    You start by stating that opinions supported by facts are not defamatory. Then, when you get to your numbered paragraphs, you argue that any tweet *not* supported by facts is not defamatory because it is an "insult".

    What's your basis for claiming that insults are not defamatory? It seems to me that "defame" and "insult" are synonyms. The point of an insult is to cause "criticism, dishonor, or condemnation" (28 USC 4101 (1) ). That sounds like actual malice – why would that be a defense?

    I grant you that hyperbole exists and can be a defense against defamation. What about Musk's statements mark them as hyperbole? Anything besides the fact that Musk posted them on Twitter? The same medium he uses for official communications with his company's stock-holders?

  19. Christophe says

    September 17, 2018 at 1:51 pm

    I might call Musk "frighteningly smart," but with a different connotation to the world "frighteningly."

  20. NG says

    September 17, 2018 at 1:57 pm

    Ken-

    A question about "limited purpose" public figures. For the "actual malice" standard to apply to a limited purpose public figure, does the statement have to be somehow related to the limited purpose for which you are a public figure? I know Musk made some comments to the extent that Unsworth overstated the extent to which he was involved in the cave rescue — that seems like an easy case for public figure treatment — Unsworth decided to involve himself in the cave rescue and the statements are about the cave rescue.

    But the "he's a pedophile" stuff seems completely unrelated in any way to the cave rescue that makes him (arguably) a limited purpose public figure. If you become a limited purpose public figure, does the actual malice standard then apply to anything bad someone might say about you, even if unrelated or tangentially related to the thing for which you are known?

  21. IForgetMyName says

    September 17, 2018 at 2:01 pm

    I thought the standard was that you at least needed a source for your claims that at least has the barest whiff of credibility so you can put on a straight face and say you thought it was true. And I don't think "Lives in [city]" qualifies.

    Except that's not the standard here. Now, in terms of judging whether a news organization–or even a random friend on facebook–has a reasonable basis for making a factual allegation (i.e., "Elon Musk likes lady boys. We know this because he lives in Bangkok.") your hypothetical certainly wouldn't pass muster.

    However, that's not the question before the court: Instead, it's the broader question of "Is it defamation under U.S. law?" To consider that question, you broadly consider the elements of defamation and whether it fits, but you also have to look at whether the case falls under circumstances that have very clearly been carved out by the courts as "not defamation." Factual allegations, either explicitly based on disclosed facts or implicitly based on undisclosed facts, are one area that is clearly "not defamation," and being reckless with the truth is one way to get out of this "not defamation" area.

    However, it's not the only area that's "not defamation." It's also pretty well settled law that an opinion about how likely a factual allegation is true based on known facts is also specifically "not defamation," regardless of how unreasonable that opinion is. "Elon Musk must like lady boys because he lives in Bangkok" is still an idiotic conclusion based on an idiotic train of thought, but it's nonetheless protected opinion because it doesn't claim direct knowledge of anything that's untrue, nor does it imply that the "I think Elon Musk likes lady boys" part is based on some undisclosed knowledge on your part. Instead, you're simply saying, "From this fact that we all know–Elon Musk lives in Bangkok–it is only logical to conclude that Elon Musk enjoys the company of pretty, pre-op transexuals," and people are free to use their own critical thinking skills to evaluate the (lack of) merit of your argument.

  22. Daniel Weber says

    September 17, 2018 at 2:08 pm

    I like Musk and it's sad to see him go so nuts. He made this problem for himself and deserves to deal with it. I hope after he does he will stop doing nuts things, but rich people often don't have people telling them no.

  23. Craig says

    September 17, 2018 at 2:30 pm

    Established law and precedent may disagree with me, but I would say that it's "reckless disregard for facts" when you make up an accusation out of thin air, with nothing whatsoever to support it. It shouldn't be the case that you have to know your facts are wrong; if your accusation was based on nothing and therefore could be correct only by sheer dumb luck, that seems pretty reckless to me.

  24. Molly says

    September 17, 2018 at 2:35 pm

    Since Elon is so regularly absurd and assholishly trolling, wouldn't a person familiar with the source be less likely to take it factually? That's immediately what I thought, although I was unaware of the follow up with Buzzfeed.

    I don't know him personally, but I'm a fan and I'm worried about him. He clearly needs some help. Stupid rich people don't necessarily have people who can make that intervention though. He needs a Gwynne Shotwell for Tesla and a vacation. And probably therapy, but who doesn't?

    That said, he should have to make some kind of amends for this. A donation, apology, etc. I'm not sure if it's actually defamatory, but it was a huge dick move.

  25. R says

    September 17, 2018 at 2:49 pm

    Regarding points 1–4: is it possible that each one, taken individually, might be defensible as insult/hyperbole/opinion; but that taken together they establish a pattern amounting to defamation?

    I realize that 1) "Ken's a pony-killer" may be a joke; and 2) "no, really, I'm not joking, he really is a pony-killer and you should shun him" might also be a joke; and even 3) "if he's not a pony-killer let him sue me and prove it! And I promise to fight the case on the facts and not claim this series of tweets is a joke" might still be a joke — but surely all that must be a question for a jury, not a basis for a judge might dismiss the case on first amendment grounds.

    Otherwise words have no meaning.

    Or do we really want to claim that there's something about Twitter's propensity for insult/hyperbole/opinion which makes *all* tweets inherently immune to defamation claims? That seems, I dunno, a bad precedent.

  26. stine says

    September 17, 2018 at 2:49 pm

    Because if he sued in England and won, he'd have to sign the check over to the HMRC/FSCS, since his companies were declared in default in 2002, and again in 2004, which is probably when he moved to Thailand.

  27. Craig says

    September 17, 2018 at 3:04 pm

    @R: "Or do we really want to claim that there's something about Twitter's propensity for insult/hyperbole/opinion which makes *all* tweets inherently immune to defamation claims? That seems, I dunno, a bad precedent."

    There's a bad president who would benefit from that bad precedent.

  28. Shatto says

    September 17, 2018 at 3:50 pm

    NG – You're correct. Otherwise defamatory statements regarding LPPs are protected only to the extent that they are in regards to the limited purpose itself, and it is not a colorable argument that accusations of pedophilia are related to Unsworth's limited purposes of assisting and/or advising a cave rescue.

    R – Correct also, California uses a totality of the circumstances test which considers each allegedly defamatory statement in the context of all the others and the circumstances in which they are made. Any analysis which attempts to isolate them is fatally flawed.

  29. Bob Lipton says

    September 17, 2018 at 4:59 pm

    For reasons to fear Elon Musk, you neglected to mention the flame throwers. When he wants to start a flame war, he's got the equipment! Not to mention machines to dig a hole, pop up in your basement and send his hordes of "I trust Musk!" fanboys in to soil your sofas.

    Bob

  30. Carl says

    September 17, 2018 at 6:03 pm

    @Jonathan Kamens: he is suing in London as well. He probably has a better chance of succeeding there, but a lower chance of collecting. The barrier is persuading an English court that he should be heard in an English court since neither he nor Musk lives there.

  31. Seth says

    September 17, 2018 at 9:03 pm

    Absolutely nothing in Musk's tweet supports or suggests he has some basis for calling Unsworth a pedophile

    But if Musk had provided an explicit basis for his assertions, it also wouldn't have been defamation, according to your analysis.

    This seems somewhat confused, if not outright contradictory. Under your rubric, then, in order for a statement to be defamatory, the alleged defamer must imply (but not state) a factual basis for said statement. Otherwise, wouldn't not having a basis for a statement make it more likely to be defamatory, since it isn't based on 'disclosed facts'?

  32. Rob says

    September 17, 2018 at 9:27 pm

    The barrier is persuading an English court that he should be heard in an English court since neither he nor Musk lives there.

    Maybe UK law has changed, but as this case shows, a New Zealander and an Indian could square of in a London court on the basis of a tweet read by a handful of UK citizens.

    From the article:

    Confirmation that UK libel laws apply to Twitter – even if posted half the world away – sets a significant precedent and one that may make some of those who use the social network to engage in bar room discussion hesitate the next time they decide to flame a public figure.

    Although the tweet was read by only a handful of people in England and Wales, the damages awarded to Chris Cairns reflect the unquantifiable reach of such an accusation.

  33. Fred says

    September 17, 2018 at 9:30 pm

    Anne Mouse asked why an insult isn't considered defamatory.

    I am not a First Amendment attorney but my understanding is that the law supposes that
    "Betty Crocker molested and killed my children" damages Betty Crocker's reputation in a way that "Betty Crocker is an evil #@!" does not.

    The law supposes lots of things. I don't know why the law is this way.

  34. Richard says

    September 17, 2018 at 9:47 pm

    @Seth: I think he'd need to either supply false evidence in support of his accusation, or state that he is withholding evidence that would prove his claim.

    Saying "Obama is a murderer" is not defamation. Saying "Obama is a murderer because he bombs American citizens in foreign countries without due process" is certainly not defamation: it's an opinion based on a true fact. Saying "Obama is a murderer; he killed his college roommate" would be defamation, because the fact in support of the opinion is untrue (to my knowledge). Saying "Obama is a murderer; I've talked to his housekeeper and you wouldn't believe what's going on in their house – nothing I can talk about though" would also be defamation, because you're implying secret knowledge in support of your opinion that you don't have.

    "He spends a lot of time in Thailand; he must be a pedo" is an opinion supported by a true fact. It's a stupid and racist opinion, but it's not lawsuit-worthy. However, if the diver doesn't have a Thai child bride and Musk claims he does, then the fact he's using in support of his opinion is false, and that's what would make it defamation.

    Or, at least, that's how I gather it works.

  35. Seth says

    September 17, 2018 at 10:29 pm

    Richard,

    Thanks for that. I suppose it's the computer scientist in me, but I can't really tell the practical difference between "Obama is a murderer", "Obama is a murderer because he killed his college roommate", and "Obama killed his college roommate"; the former and latter, under Ken's analysis, are unimpeachable opinions, or hyperbole, or gratuitous insult…but their causative conjunction suddenly brings the statement into the realm of defamation. But, recursively, the premise could itself be an unsourced opinion, or sourced on an illogical or irrelevant (but nonetheless true) set of facts; it seems both arbitrary and useless to say that one can build a defamatory statement entirely out of non-defamatory statements.

    The simple truth is that Ken's analysis, and (because I trust Ken as an analyst) American jurisprudence of defamation, is broken if a powerful person can vindictively lie about an opponent (especially an obscure-before-the-lie opponent) in a way that many of their actual (and not theoretical) followers will either believe or pretend to believe in large enough numbers to ruin a person's reputation, career, and home life and *not* be guilty of having committed a crime of some kind. Social media in general and Twitter in particular seem tailor-made for just this kind of scurrilous attack vector, and they have revealed vast swathes of the public are either stupid or malicious enough to consume, echo, amplify, and distort obvious lies and conspiracy theories. Many people's lives and livelihoods have been effectively ended because of mobs of ideologues stoked by bad-faith actors which have often involved obvious distortions that nevertheless were taken as gospel by large enough numbers of people to have a malevolent affect.

    I don't know the answer to this. But I do know that a legal system that says a billionaire can sicc his cult-like sycophants onto a more-or-less innocent bystander who had the temerity to publicly question that billionaire's character is a legal system which is begging for a good Marie Antoinette-ing, and that will ultimately be a very bad outcome for anyone who cares about civil liberties or the rule of law.

  36. andrews says

    September 18, 2018 at 12:22 am

    Why didn't Unsworth sue in England?

    This may not apply here, depending on whether Unsworth plans to return to England. Also, assume that Musk's statements are injurious to Unsowth.

    With those considerations in mind, the suit is against a public figure and is likely to draw at least some news reporting. That reporting is likely to repeat and propagate the injurious statements. If the suit is filed in California, the bulk of the publicity is likely to occur in California.

    Thus, the injury incident to the repetition of the statements occurs mostly thousands of miles away. He may not entirely avoid the Streisand effect, but it is certainly diluted by distance.

  37. William de Berg says

    September 18, 2018 at 2:37 am

    @stine

    Via companies House I find no support for your assertions.

    Of the four companies he has been involved with none have been declared in default.

    Further, the two time periods you state show no activity by Unsworth in any companies as a director or otherwise.

    Your statement "which is probably when he moved to Thailand" is of course pure insinuation. I personally take your implication to be that he fled his responsibilities. Responsibilities that as noted above do not exist.

    In this day and age people call this fake news.

    I am not so polite, and call you a liar.

  38. Anon. says

    September 18, 2018 at 2:54 am

    It's practically impossible to win a libel suit in the US unless you can prove that the person who make the potentially-defamatory statement *didn't believe they were true*. Proving "reckless disregard for the truth" is theoretically possible but very hard; most libel cases in the US are won by proving that the person making the potentially-defamatory statement actually knew it was false. I think it's clear that Musk believed his statements were true, though why he believed that, I have no idea, since he certainly hasn't provided any reason why he believed that.

    In England, it's different, and Unsworth would win his case in England. Maybe he's filing in California because he can't get depositions in England, and he can use the depositions in California in the English case.

  39. Teemu Leisti says

    September 18, 2018 at 2:59 am

    andrews: The Streisand effect is probably moot in this case, since Musk's statements have already been widely repeated by the global press.

  40. Chris says

    September 18, 2018 at 5:27 am

    Minor point… but this is widely being repeated, incorrectly, in media reports; and it would be nice to see it getting fixed.

    Mr Unsworth is not a diver. At all. He is a spelunker, or caver; and is personal friends with others who ARE divers, but his own caving explorations do not involving diving. (Wading or swimming in flooded passages, almost certainly. Diving, no.) The description of him as a "diver" took hold shortly after Mr Musk brought him to some prominence. His actual role is well set out in his complaint.

  41. William de Berg says

    September 18, 2018 at 6:17 am

    @Stine

    My issues with your post.
    If you had bothered to check with the official repository of directors and business registrations

    You would
    A- see that in the two time periods you state he was not involved in any company as a director or other role requiring state records.
    B- Use the term default, which is nonsensical. Check the records yourself. "Default my arse."

    Now your insinuation that the non-evident statements you made above were the reason for his moving to Thailand. "which was probably when he moved to Thailand"
    I read your post as he "fled his problems" What are we to make of your implications?

    It appears that the current linguistic vogue is to say "fake news"

    I, however, prefer to call you a liar.

  42. anne mouse says

    September 18, 2018 at 6:22 am

    @Fred:

    Well, in your example I can see a clear difference. "Evil" is entirely in the eye of the beholder, and "bitch" , although it does have a literal meaning, is almost never intended literally (and clearly can't be in your example), but instead means little more than "someone I don't like". So both words are just expressions of opinion, and anybody would read them as such. Neither opinion has much value if unsupported, but there's wisdom in letting the First Amendment protect them rather than having constant litigation over whether somebody has properly supported their opinion in a tweet. (If I trusted all judges as I trust myself, I'd draw a line that allows "evil" as opinion but penalizes "bitch" as calculated to insult and offend — something like the old "fighting words" idea.)

    However, "Betty Crocker molested and killed my children" is a quite specific allegation of facts.

    Similarly, "So-and-so is a pedo" is a fairly specific allegation of [criminal] behavior. Ken was arguing that this was purely an "insult' and would not be understood literally. I might agree if Musk were ten years old and speaking in French ["pédé" , like American English "fag", has a history of use as an all-purpose schoolyard insult], but he isn't and he wasn't. Ken seems to think that the mere fact of using Twitter as his medium makes Elon's statements not libelous. I disagree and I bet the judge in this case will too.

  43. Jonathan Kamens says

    September 18, 2018 at 6:57 am

    Similarly, "So-and-so is a pedo" is a fairly specific allegation of [criminal] behavior.

    Technically speaking — and there will definitely be a lot of technical speech if this goes to trial — a pedophile is someone who is sexually attracted to children, whether or not they ever act on that attraction. Accusing someone of being a pedophile is therefore not, actually, accusing them of behavior, criminal or otherwise.

    The term you're thinking of is "child rapist."

    On the broader point, while I tend to make an effort to avoid subjecting myself to the worst depths of internet and Twitter culture, it is my understanding that, in fact, it is not uncommon, among people who troll and insult others online, to use "pedo" and "pedophile" as insults directed against someone with no evidence or belief of actual pedophilia.

    If a judge agrees and concludes that a reasonable person on Twitter would not interpret Musk's accusation literally, then the court must conclude that it's not defamatory.

    There are actually two questions there: what the reality is on Twitter, and what the lawyers for both sides succeed in convincing the judge what the reality is on Twitter. It's entirely possible that the judge will know very little about Twitter and if they are a decent person then their brain will be instinctively, subconsciously averse to fully recognizing and acknowledging the depths of depravity to which parts of Twitter stoop in a daily basis. If so, that will play in Unsworth's favor.

  44. Bob Lipton says

    September 18, 2018 at 7:44 am

    A nice point, Jonathan Kamens, but “What I tell you three times must be true.”

    Bob

  45. Lex Fugit says

    September 18, 2018 at 8:28 am

    Regarding points 4 and 5, the legal issue there may be whether the allegedly defamatory statement in the emails was "published" when Musk just sent it to just one other person. Musk clearly communicated the twitter messages to enough people to satisfy the publication requirement, but Musk may argue that sending the information to just one other person does not qualify as publication under defamation law.

  46. Jackson says

    September 18, 2018 at 9:37 am

    Not a single joke about how this suit is giving of some kind of notable smell, perhaps having a certain muskiness to it, from Ken.

    You're losing your edge, man. Podcasting is making you soft.

  47. JSG says

    September 18, 2018 at 10:53 am

    According to press reports here in the UK, Mr Unsworth's filing says he will be filing separately in England.

    So I think speculation as why he isn't filing in the UK may well be unfounded.

  48. Cromulent Bloviator says

    September 18, 2018 at 11:51 am

    I am not a lawyer, but am I the only one in the room who thinks it wise to wait until discovery is completed before forming beliefs about what facts Musk does or does not have? It seems obvious to me that much of this game is being played out of public view. Maybe indeed he is only trying to make his shit-talking sound bigger, but he might have also done some investigation.

    I don't see how a reasonable person would think that Musk has claimed to know any facts. It is merely because I know he has a lot of resources, and could hire a team of investigators without even noticing the money, that I would consider that he might have facts. But so many people, even the people making wild anti-Musk statements here, believe him to not have facts, that it seems hard to believe that false facts are being believed in a way that leads to monetary losses by the man known as Pedo Guy.

    It may turn out to be that he's under pressure from the Thai authorities, and filed the lawsuit in an attempt to prove to them that he's an innocent party in the kerfuffle. I don't have any information of that sort, but generally, causing people to point at the country and accuse any foreigners who live there of being involved in immoral acts makes them unhappy with your presence, and they don't really care about if it is true because the part of the government that is pissed off is worrying about lost tourist dollars, something not connected to the relative truth of objective facts.

    It may even be as simple as, he's not willing to return to the UK because of his debts, and getting kicked out of Thailand would be a huge problem for him, and Musk simply doesn't care about whatever money might be at stake; he just wants the guy to stay in the news long enough to piss off his local allies. And most people are assuming it is something like this.

    But we don't know yet. Thanks to the lawsuit, we'll get to find out in the future. Or at least, people who haven't already made up their minds about the details will get to discover and learn from them when they come out; people whose minds are made up prematurely will be fleeing cognitive dissonance and are unlikely to learn anything from it even if they try to memorize the facts.

    @Seth: When I'm programming smart contracts, my clients would flat _freak_out_ if I told them that foo() and foo(bar) look the same to me. ;) Your example is the same as having an additional argument, or not. Or considered another way, it would be the same as something else having been pushed onto a stack immediately prior, and claiming it is the same. "push foo" is not guaranteed to be the same as "push bar; push foo"

  49. jimmy says

    September 18, 2018 at 12:31 pm

    Musk would try to argue that Unsworth is a limited purpose public figure and that Musk didn't make the false statements with the requisite actual malice (knowing the statements to be false or with reckless disregard as to their falsity).

    Ugh, being publicly accused of sex with children is such a life-altering accusation that it seems like the threshold for "not reckless" should be much higher than currently allowed.

  50. En Passant says

    September 18, 2018 at 12:34 pm

    Ken White wrote in conclusion:

    It's a defensible case, but not a case, in my view, that gets kicked out early through a motion to dismiss or motion under California's anti-SLAPP statute, which applies to a limited extent in federal court in California.

    It will be interesting to see what Musk files in response. The suit reveals, if nothing else, a CEO acting in a disturbingly erratic manner.

    As I read the complaint, in particular the facts asserted, it illustrates Musk's tendency to double down by making increasingly indefensible false statements.

    So, I would not be very surprised if Musk orders his attorneys to escalate directly to an anti-SLAPP motion to strike, and risks having his head handed to him on a platter if Unworth prevails on the motion.

    It would be consistent with his behavior outlined in Unsworth's complaint, and with the general history of his behavior in many other unrelated matters.

    It's not a sure bet, but probably worth risking some pocket change on popcorn futures.

  51. Ted leaf says

    September 18, 2018 at 1:27 pm

    Libel in English courts can attract the same kind of treatment as just happened to monsanto/Bayer about glyphosate, exemplary damages, unrelated to the damage done to the plaintiff, rather, handed out to teach you a lesson and to try to ensure thayou don't repeat the behaviour in the future, it will be interesting to hear musks legal team argue that twitter is full of bs, when he uses precisely the same system to make legal binding statements concerning the companies he controls..Musk is not a genius, he is good at hiring skilled engineers and raising money from others to spend on his pet projects, musk will find himself in the same position as that other mental case, s jobs, booted out of his companies by the money men, take his behaviour over the last 6 months and he is rapidly becoming a liability, not an asset, he now has how many possibly very damaging cases involving himself and his companies ? Musk is just another rich, arrogant twat that thinks he is un-touchable by anyone, including governments, he is rapidly making more and more enemies, even within his companies, they will take action against him eventually, if only for their own protection from a man that shouldn't be in charge of a public urinals…

  52. Doctor X says

    September 18, 2018 at 2:38 pm

    Should have sued Musk under RICO.

    What?

  53. Seth says

    September 18, 2018 at 7:29 pm

    Cromulent Bloviator:

    @Seth: When I'm programming smart contracts, my clients would flat _freak_out_ if I told them that foo() and foo(bar) look the same to me. ;) Your example is the same as having an additional argument, or not. Or considered another way, it would be the same as something else having been pushed onto a stack immediately prior, and claiming it is the same. "push foo" is not guaranteed to be the same as "push bar; push foo"

    I see that I was too terse in my attempt to not bore non-computer scientists (whose overlap with contract-seeking professional computer programmers is wide, including me, but certainly by no means bijective). But you're inviting me to be quite boring, and I'm afraid I cannot resist your invitation.

    Under your analogy, we can determine whether or not a statement is libelous (cf. defamatory) by feeding it into a function, which we'll call isLibel(statement), a function that takes one argument (a logical statement). Your analogy isn't the sick burn you imagine it to be, because at no point did I assert that my implicit isLibel() function with zero arguments was the same as it is with one argument; the function always takes exactly one argument, namely the statement under consideration.

    Under Ken's analysis, I've gathered that the definition of isLibel() has to be something like the following pseudocode:

    function isLibel(LogicalStatement statement) {
    if (statement is of the form 'B' implies 'A' AND 'A' is false AND 'B' is false AND 'A' is injurious to the target) {
    return true;
    }
    return false;
    }

    This covers the case of "A statement can't be libel if it's based on a disclosed fact", and we're ignoring the case of an atomic (i.e., unsourced) statement, because it seems Ken doesn't think *any* bald-faced, unsourced statement can be libelous (given his point on Musk's unsourced statements as 'not having any basis at all', and therefore not being defamatory).

    The problem with this function, the point of confusion, is that if we have a statement Q of the form B -> A for which isLibel(Q) returns true, then it's trivially easy to construct a statement P of the form C -> Q, where C is a true atomic statement, which results in isLibel(P) returning false.

    It's well and good to say that P and Q are different arguments, and so we shouldn't expect isLibel(P) = isLibel(Q), but in this case there's an intimate logical relationship between P and Q that belies the shortcomings of the definition of isLibel(); namely, that B -> A is itself a statement, and hence it can be the subject of a compound statement with a true predicate, and hence, no matter how libelous B -> A is, it can be trivially rendered 'not libelous' simply by making it the conclusion of a larger if-then. If this is true, then it means that, in the real world, any statement can be massaged into 'not libel' territory.

    I suppose I expect isLibel() to respect recursion on the meta-function 'connectWithImplication(LogicalStatement X, LogicalStatement Y); i.e., I expect that if a constituent statement is libelous, then any statement built with that statement as an endpoint of implicating logical-connectives is libelous. After all, if you claim Obama is a murderer because he killed his college roommate, and you claim to think Obama killed his college roommate because NASA faked the moon landing, and you claim to think NASA faked the moon landing because the Earth is flat, and you claim to think the Earth is flat because Christopher Columbus never made it to Cipangu, this isn't really practically different than claiming Obama is a murderer simply because Obama killed his roommate, or, going further, simply claiming that Obama killed his roommate (since that assertion entails Obama being a murderer as an immediate consequence).

    I'm not disputing that this seems to be the state of American jurisprudence. I'm just saying that it's pathological, and I don't understand it.

  54. Kratoklastes says

    September 18, 2018 at 8:31 pm

    @R –

    Or do we really want to claim that there's something about Twitter's propensity for insult/hyperbole/opinion which makes *all* tweets inherently immune to defamation claims? That seems, I dunno, a bad precedent.

    Why would it be a bad precedent? Defamation is mostly a lawyers' picnic, and even a successful defamation proceeding will do little to change the minds of those whose opinion of the plaintiff was altered by the respondent's (defamatory) statement.

    Besides, defamation actions are impossible to mount if you're outside the top few percent of the income distribution (an ambulance-chaser might take a punt on a contingency basis, but that still makes it a losing proposition for the complainant).

    It would be better for all concerned if dimwits stopped pretending that 'personal brands' (i.e., reputations) have value: if the doings of politicians shows us anything, it's that reputation is irrelevant.

    Also, as Rothbard quipped about half a century ago: your reputation is an output, and it's not yours as such: you provide some of the inputs – your behaviour – but the "reputation production process" takes place in the minds of other people.

    Children used to be encouraged to employ a very simple principle:

    Sticks and stones may break my bones,
    but names will never hurt me

    Adults who assert that 'reputation' is a meaningful concept are stupid children.

  55. Richard says

    September 18, 2018 at 10:03 pm

    @Seth:

    I'm replying to your previous comment here, not the latest one.

    I think you're right that there's no real difference between the defamatory nature of the false statements "Obama is a murderer because he killed his roommate" and "Obama killed his roommate." I'd go so far as to say they're equivalent. In a world where people call meat-eaters, pro-choice activists, police officers, oil executives, and pretty much any politician in any country in the world "murderers," the label kind of loses its sting. Similarly, everyone's a Nazi (except, somehow, the people actually going around waving swastikas and tattooing Gothic 88s on their arms). Unless you make it absolutely clear that you're bringing it forward as an actual accusation, as a statement of fact, people are going to assume that you're just mouthing off.

    So, "He's a pedo" probably isn't going to be defamation, because that's just the level of discourse on Twitter. No one's going to take it seriously, for the same reason that "Your mother's a whore" wouldn't be taken as a serious accusation.

    When you put forward a specific falsified fact to back up that label, that statement of fact is what makes the accusation defamatory. "Unsworth is a pedo" is trash talk, because who is going to believe in the factual accuracy of a retaliatory insult on Twitter after Unsworth criticized the great "Elon Musk, super genius?" On the other hand, "Unsworth went to Thailand and wed a child bride" is a specific, provable (and falsifiable) statement of fact. It's not something someone would say unless they actually believed it were true (or wanted someone else to believe it).

  56. anne mouse says

    September 19, 2018 at 5:09 am

    who is going to believe in the factual accuracy of a retaliatory insult on Twitter

    This is an empirical question. The answer seems clear (though I certainly haven't studied it rigorously): a significant percentage of the people who read Twitter, plus a significant percentage of people who read news outlets that report on Twitter.

    You've pointed out one of the great failings of American jurisprudence: a preference for arguments over facts.

  57. Matt says

    September 19, 2018 at 7:27 am

    @Craig:

    There's a bad president who would benefit from that bad precedent.

    Didn't he already get a judgment, maybe involving Twitter (maybe not, but certainly applicable), that was basically "he's so full of it, no one takes him seriously anyway, so not defamation"?

  58. Jordan says

    September 19, 2018 at 9:42 am

    Elon Musk might be a genius but he's an idiot

  59. C says

    September 19, 2018 at 11:39 am

    You get haled into court, not hailed.

  60. Trent says

    September 19, 2018 at 4:23 pm

    I hope the guy got these lawyers on contingency with coverage for appeals because the kind of Firepower Musk can buy can drag a case out for years or even decades if he manages a lower court win.

    @Jordan,

    All people are idiots at one time or another. Musk's overworked by all accounts when this all took place. His judgement was likely compromised by the workload. IMO there is a pretty steep burden to prove defamation here, pretty much every article about the statements at the time labeled it as Musk being hyperbolic.

  61. David Schwartz says

    September 19, 2018 at 5:23 pm

    For what it's worth, I personally thought that Musk must know something to make these kinds of accusations. It seemed preposterous to me at the time that he would say such things for absolutely no reason at all. Perhaps I give him too much credit, but I couldn't imagine he would ask someone to sue him for defamation if he didn't know damn well that he was right. It's not normal Twitter trash talk for a CEO of a multi-billion dollar company to accuse a rescue worker of being a pedophile without knowing something about that person.

  62. The Other Dan says

    September 19, 2018 at 7:22 pm

    I own one share of Tesla and have no opinions about Elon Musk.

    @Ken, if you're reading this, please resume posting on popehat when new ATPL podcasts come out! Not only do we need the reminder, but I like the discussion section here. Unless, of course, you really are a far-right neo-Nazi figure… you sounded a bit unsure in your denial…

  63. Mikee says

    September 19, 2018 at 8:56 pm

    I used to really like Elon. He had great ideas and worked hard to make them real. But with all the lies about the Model 3, and the taking Tesla private lies, and double and tripling down on the lies about Unsworth it's too hard to not accept that Musk is just another egotistical asshole with too much money and too much free time.

    edit:
    RE: Trent

    "pretty much every article about the statements at the time labeled it as Musk being hyperbolic."

    Can you provide a link to an expert saying that the 12-year-old bride comment was hyperbolic?

  64. stine says

    September 19, 2018 at 9:10 pm

    @William de Berg

    Then what does this imply?
    http://www.stockmarketwire.com/article/498717/Have-YOU-lost-money-to-one-of-these.html

    Also, I'm still looking for the companies ho…found it:

    https://www.fscs.org.uk/uploaded_files/Publications/declarations/2004/Declarations_02_Nov_2004.pdf

    From what I can find, FSCS is the Financial Services Compensation Scheme, and reading here:
    https://www.fscs.org.uk/uploaded_files/Publications/press-releases/2003/PRESS_RELEASE_-_28_November_2003.pdf

    the first three paragraphs say:
    The Financial Services Compensation Scheme (FSCS) is encouraging consumers who may have lost money as a result of their dealings with any one of 21 firms recently declared in default by the Scheme to get in touch.
    Declaring a firm in default opens the way for anyone who has lost money, as a result of dealings with such a firm, to make a claim for compensation to FSCS. The limit forinvestment compensation is £48,000. Consumers who believe they may have a claim, should contact the Scheme on 020 7892 7300.
    The declaration of default is the final part of a process whereby a regulated firm (for example, an independent financial adviser) is deemed unable to pay claims for compensation against it. This is usually because it has insufficient assets, for example, because it has ceased trading or is insolvent.

    So, if he was only a named partner, and not a directory, that's my mistake; however, as a multiple-business-failures-and-still-has-money-while-living-abroad guy, Vernon is highly suspect.

    Also, if you search for Vernon Harry Unsworth (born in 1955, making him 62, which is abour right for the bloke in Taiwan), you'll find that he has 4 records listing his occupation as financial advisor. He is reported to have resigned from 3 and been a Director for the dissolution of the 4th

    So, unless I have the wrong Vernon Unsworth, the guy has 'seedy' written all over him.

    theodore

  65. stine says

    September 19, 2018 at 9:20 pm

    (i apologize if this gets posted twice., but noscript/ublock are a must).

    @William de Berg

    Then what does this imply?
    http://www.stockmarketwire.com/article/498717/Have-YOU-lost-money-to-one-of-these.html

    Also, I'm still looking for the companies ho…found it:

    https://www.fscs.org.uk/uploaded_files/Publications/declarations/2004/Declarations_02_Nov_2004.pdf

    From what I can find, FSCS is the Financial Services Compensation Scheme, and reading here:
    https://www.fscs.org.uk/uploaded_files/Publications/press-releases/2003/PRESS_RELEASE_-_28_November_2003.pdf

    the first three paragraphs say:
    The Financial Services Compensation Scheme (FSCS) is encouraging consumers who may have lost money as a result of their dealings with any one of 21 firms recently declared in default by the Scheme to get in touch.
    Declaring a firm in default opens the way for anyone who has lost money, as a result of dealings with such a firm, to make a claim for compensation to FSCS. The limit forinvestment compensation is £48,000. Consumers who believe they may have a claim, should contact the Scheme on 020 7892 7300.
    The declaration of default is the final part of a process whereby a regulated firm (for example, an independent financial adviser) is deemed unable to pay claims for compensation against it. This is usually because it has insufficient assets, for example, because it has ceased trading or is insolvent.

    So, if he was only a named partner, and not a director, that's my mistake; however, as a multiple-business-failures-and-still-has-money-while-living-abroad guy, Vernon is highly suspect.

    Also, if you search for Vernon Harry Unsworth (born in 1955, making him 62, which is abour right for the bloke in Taiwan), you'll find that he has 4 records listing his occupation as financial advisor. He is reported to have resigned from 3 and been a Director during the dissolution of the 4th, which means either I've got the wrong Unsworth, or you do.

    Also, I found this one:
    https://www.linkedin.com/in/vernon-unsworth-4a81361a/

    is this the correct Vernon Unsworth?

    Yes, I think it is:
    https://www.thesun.co.uk/news/6824869/vern-unsworth-thai-cave-rescue-elon-musk-paedo-tweet-mum/
    and I quote:
    Unsworth is a British expat who lives near the Tham Luang cave network in Thailand where 12 boys and their football coach became trapped for more than two weeks.

    The former financial adviser was the first foreign rescuer at the scene and played a crucial role in saving the team.
    So, unless I have the wrong Vernon Unsworth, the guy has 'seedy' written all over him.

    Your turn,
    stine

  66. Dave Crisp says

    September 20, 2018 at 1:38 am

    @Rob

    Maybe UK law has changed, but as this case shows, a New Zealander and an Indian could square of in a London court on the basis of a tweet read by a handful of UK citizens.

    The law has indeed changed: under §9 of the Defamation Act 2013 to bring a case against someone not domiciled in the EU you need to persuade the court that "of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement."

    (UK defamation law is still in general terrible, especially WRT the burden of proof regarding truth, but DA2013 was a significant step in the right direction)

  67. BrianB says

    September 20, 2018 at 5:44 am

    @SirWired:

    I didn't know you could accuse somebody of specific serious crimes out of thin air by merely actively avoiding the least bit of effort to verify your claims ahead of time.

    What crimes are we talking about? Pedophilia? That's not a crime. Child molestation is a crime. Look up the difference – definitions matter, especially in the legal world.

    Edit: To be clear, pedophilia is gross. But it's just thought and preference.

  68. CJColucci says

    September 20, 2018 at 10:03 am

    I understand the theory that if you make a defamatory statement and disclose the factual basis for it, you are safe because if your factual basis is sufficiently stupid — Smith sodomizes children. How do I know? Smith has red hair. Red-haired people sodomize children. Therefore Smith sodomizes children — the harm is diminished by the silliness of the "basis."
    Where I am having trouble is with defamatory statements based on undisclosed facts. "Smith sodomizes children." The speaker could: (a) know this to be false (Intent); (b) have conscious doubts that it is true (Recklessness); (c) have an inadequate basis for thinking it is true (Negligence); (d) have no basis at all for thinking it is true but don't actually have a view about whether it is true or false when saying it (WHAT IS THIS?)
    Under constitutional rules governing libel law, (a) and (b) are enough if the plaintiff is a public figure. If the plaintiff is a private figure, (c) can be enough, as far as the Constitution is concerned, but that's a matter of state law and may vary from state to state.
    But what about (d)? It seems at least as culpable as negligence and might even qualify as recklessness. Can it really be the law that you can say something defamatory when you know you have no idea whether it's true or not, and escape liability because you don't care enough about the truth to have some actual, conscious view of the matter?

  69. Jonathan Kamens says

    September 20, 2018 at 10:30 am

    @CJColucci For a private figure, (d) is the same as (c), i.e., having no basis at all for thinking a statement is true and "not having a view about whether it is true or false when saying it" is exactly the same as having an inadequate basis for thinking it is true. After all, "no basis at all" is a subset of "inadequate basis," and for a private figure, whether or not the speaker has a view about whether the statement is true is irrelevant.

    As others have pointed out, Unsworth is arguably a limited public figure, but the allegedly defamatory statements which Musk made about him have nothing to do with the sphere in which he is a public figure, and therefore the private figure standard would probably apply to those statements.

    Therefore, if the lawsuit proceeds, at least in the U.S., it's probably all going to come down to whether the plaintiff convinces the judge that the statements Musk made could be interpreted as true by a reasonable person reading them in the context in which they were made.

    Ken's logic seems to be that on Twitter, if you shit-talk someone else but don't provide any basis for your statements, nobody actually believes that you have any basis for them, and therefore they're clearly just shit-talking, and therefore they're not defamatory. I'm really not sure I believe that, and I'm not sure a judge will either.

  70. Ted leaf says

    September 20, 2018 at 12:59 pm

    So reading opinions on here, it's seems OK for musk to spend millions destroying people that "outed" him, because it empinged on people's ideas of who and what musk is, but not ok for anyone else to try the same against musk when he opens his flappy mouth and spouts total Bollocks, all because someone small told him his idea for the cave rescue wouldn't work ?
    So using the logic shown on here, I can ooen up an account on twitter and say anything I like about musk being a corrupt liar who interferes with animals and dead bodies of young boys, with no proof at all to back my assertions and musk can take no actions against me because everything on twitters I sthought to be bs, although the sec and doj don't appear to be convinced by that argument yet..Fingers crossed tye English court and judge decide against musk and award the plaintiff exemplary damages in the billions, very little chance of collection, but worked properly, it would mean weirdo musk would be stuck in America all his life, not that he seems to go anywhere anyway, but then he is such a gutless, chicken livered,faggot that he probably doesn't dare do so, now please take action against me musk, you end up with nothing, I have nothing to seize, no income and no reputation to lose, so what do you get, apart from another legal bill,. One day your actions will come back to haunt you, what always amazes me about America, in a country awash with firearms is the tiny number of long distance sniped murder attemps..

  71. John J says

    September 20, 2018 at 7:37 pm

    I dont get my news from Twitter. This all came out in all the major news organizations. Using the excuse that "twitter as a bs machine" would not work.

    It started when Unsworth called Musk's submarine a stupid toy that would not work in the cave. That opinion was shown to be fact to the world by all the major news organizations who compared photos of the sub with drawings of the cave passages.

    I first thought that Musk must have known something private about Unsworth because he is rich and powerful and has resources to find those things out. But afterward, I thought, no, Musk reacted too fast to the submarine diss, he couldnt have done research so fast (minutes?) Unless Musk already knew Unsworth, perhaps from some previous mutual Bankok sex trips.

    Musk probably got pushback in his own company on the submarine thing, and was likely already pissed even before he sent it to Thailand. He wasnt going to take any more shit.

    IMO Musk acted with malice and willful disregard of the facts.

  72. Richard says

    September 21, 2018 at 4:55 am

    So reading opinions on here, it's seems OK for musk to spend millions destroying people that "outed" him,

    I think you've got the wrong PayPal exec. That sounds more like you're taking about Peter Thiel, not Elon Musk.

  73. Mafia Kirby says

    September 21, 2018 at 10:50 am

    The SPEECH act requires it be established that the case at least COULD have succeeded in some US court. Wouldn't that make this a somewhat questionable decision? I mean, if it turns out it doesn't succeed, that would effectively prove it couldn't have succeeded, right?

  74. Rob says

    September 23, 2018 at 4:01 pm

    The law has indeed changed: under §9 of the Defamation Act 2013 to bring a case against someone not domiciled in the EU you need to persuade the court

    @ Dave Crisp,

    Thanks for the update. I agree that English defamation law is appalling. If an English citizen is residing outside the UK are you saying they can't make use of UK courts for this purpose? If so, for how long or under what circumstances is that the case?

  75. Dictatortot says

    September 23, 2018 at 8:21 pm

    I submit that "[t]he wisdom-dump-statted Musk" is a grievously underrated insult, and one day ought to feature on the man's headstone.

  76. Mikee says

    September 24, 2018 at 12:17 pm

    RE: Ted leaf

    what always amazes me about America, in a country awash with firearms is the tiny number of long distance sniped murder attemps..

    A decent sniper rifle can cost 20 times as much as a sporting rifle or a pistol.

    RE: stine

    So, unless I have the wrong Vernon Unsworth, the guy has 'seedy' written all over him.

    Do you work for the Stine Seed Company? Or Stine Home & Yard in Walker, Louisiana? Or Stine Lumber in Lake Charles, Louisiana?

    Is this you?
    https://www.ancestry.com/genealogy/records/theodore-stine_169191387

    Or this?
    https://www.mylife.com/theodore-stine/e797163198090

    Unsworth is a common surname in the UK (it's also a neighborhood in Lancashire), and Vernon is also a pretty common name in "the west" (as well multiple cities sharing the name.)

    Internet sleuthing takes a lot more than finding one reference (because the Sun likely used the same half assed internet sleuthing to make their reference) to be anywhere close to factual.

    If Musk had called him a financial scammer, your sleuthing would be relevant. But he didn't, so it's not. You're doing nothing more than victim shaming, digging into his past to make it easier to justify Musk's disgusting words. Is Elon paying you for this work, or are you just blowing him for free?

    "Know what I mean, Vern?"

  77. Orv says

    September 25, 2018 at 9:30 am

    @Molly – I’m not a fan but I’m worried about him too. I think his lack of sleep, due to his inability to delegate, is badly clouding his judgement. At times he shows signs reminiscent of mania, although I wouldn’t pretend to diagnose him with anything. It makes you wonder if his business and engineering decisions are similarly compromised.

    CEOs in this sort of spiral of escalating behavior often crash and burn, sometimes literally.

  78. Richard says

    September 25, 2018 at 10:24 am

    CEOs in this sort of spiral of escalating behavior often crash and burn, sometimes literally.

    Yeah, when you're a CEO whose two best known products are a fast-moving vehicle sporting a massive lithium-ion battery, and a long metal tube full of hydrocarbons and oxygen, it's more likely than not that any crashing and burning is going to be literal.

  79. SocraticGadfly says

    September 25, 2018 at 2:40 pm

    Why are some of you here fans of Elon Musk? He's about as jack shite as a businessman as he is as a human being. Tesla, his LA tunnel, driverless electric semis? All have been overpromised and have underdelivered. Stop drinking his Kool-Aid, smoking his bong or whatever.

  80. Orv says

    September 26, 2018 at 9:26 am

    @Richard – Hah, yes. I was actually thinking of Dennis Barnhart, of Eagle Computer, when I wrote that, but touché.

  81. stine says

    September 26, 2018 at 12:10 pm

    re: SocraticGadfly says
    Why are some of you here fans of Elon Musk? He's about as jack shite as a businessman as he is as a human being. Tesla, his LA tunnel, driverless electric semis? All have been overpromised and have underdelivered. Stop drinking his Kool-Aid, smoking his bong or whatever.

    Why didn't you mention SpaceX? Is it because it invalidates your supposition?

  82. JD Ohio says

    September 26, 2018 at 2:27 pm

    KW: "The 7/15/18 tweet where Musk calls Unsworth "pedo guy" is likely insult and hyperbole. Whether something is a statement of fact is determined by context, as viewed by people familiar with it."

    I am a lawyer, and this is one of, maybe, the 20 dumbest statements that I have ever seen a lawyer make. Calling someone a "pedo guy" is literally saying that the "insulted" person abuses children. Further, under the law of defamation, even if the literal meaning of the word is not defamatory (for instance, "fairy" spoken 30 years ago as implying homosexuality), if the innuendo is defamatory, then there is a valid case for defamation. Just because twitter doesn't permit enough words to specifically give the basis for the defamatory statement doesn't mean it isn't defamatory.

    Also, I don't get how calling someone a "pedo guy" is hyperbole; it is an intentionally, very nasty accusation that could ruin a person's life. People could actually believe it, as opposed to when, for instance, someone in a fit of anger says he would like to murder a relative or friend.

    In this instance, what possible reason would Musk have to bring up a nonsensical "pedo" insult where there is a dispute as to the efficacy of Musk's efforts to help Thai children? The most likely explanation is Musk meant (or had a substantial suspicion) that what he literally said was true and he was trying to totally discredit the Unsworth criticisms of Musk's rescue efforts. Also, as a matter of public policy, I see no reason to try to protect statements, such as this, which are both very juvenile and, potentially, incredibly damaging.

  83. Brad says

    September 26, 2018 at 10:04 pm

    "If aliens grabbed some rando popped-collar douchebro off of a frathouse roof, Uplifted his brain, and handed him a billion dollars, they'd wind up with Elon Musk,…"

    Wow. That's all sorts of stupid.

    That "douchebro" made his own hundreds of millions because of Paypal. That "douchebro" then turned right around and risked all that new wealth for the sake of cheaper access to space; not as a gamble for personal profit but to open up space to all Mankind.

    There seems to be two schools of thought about Musk. One school, most commonly seen from big-business/conservative speakers, is that Musk is a con-man, that his achievements are frauds and that his wealth was made from bilking the taxpayer. Those critics tend to focus on Tesla and ignore SpaceX. The other school are the Musk fanboys who see Musk as a secular messiah and Albert Einstein rolled into one person. Those fanboys are mostly tech-nerds and green-weenies, primarily from the Left side of the political spectrum.

    It's been fascinating to me to see how the controversy over pedo-gate has driven a wedge between Musk and his fan-base. There is no person no matter how revered that the forces of the SJW are not willing to destroy for the slightest misstep.

    My own knowledge about Musk primarily comes from following the progress of SpaceX.

    In my opinion Musk is a merely a dedicated and talented engineer, whose focus is problem solving. He's a numbers guy. That's what motivates him. I think it also makes him politically naive. So the controversy which swirls around him probably baffles and frustrates him.

    Here is why Musk is important. It's all about Space Flight.

    Ever since Congress started winding down NASA spending in 1967, Space Flight has been stuck in a political rut. That's why no notable advance was seen from the last Apollo mission up through the multiple Space Shuttle catastrophes. Space Flight still expensive and risky, manned spaceflight still stuck in Low Earth Orbit, despite decades of time and more than a hundred billion dollars spent since Apollo. What makes that even worse is that Congress and the legacy Space Industry was satisfied with that status quo, since the pork still flowed.

    Musk is cutting that Gordian Knot. What's interesting is how and why he is able to do that.

    Musk uniquely combines three qualities: good engineering, independent wealth, willingness to risk it all. There have been other people in the last thirty years with combinations of two of those qualities but not all three, which is why they failed in improving Space Flight and Musk is succeeding.

    There has never been a shortage of excellent ideas for improving Space Flight, to fix the broken status quo. The shortage was of money combined with political will. Which is why Musk is the indispensable man.

  84. Richard says

    September 27, 2018 at 10:19 am

    I value Musk's contribution to spaceflight, and am excited to see what SpaceX is going to do in the future, both short-term and long-term.

    That said, having large sums of money tends to lobotomize the part of the brain responsible for empathy, and thinking you're smarter than everyone else (even, and perhaps especially if there's some justification for that) tends to make one think that anyone who disagrees is doing so either from profound stupidity, or with malicious intent.

    Put those two traits together, and you become a raging, out-of-control dickwad.

    So, yes, I'm a big fan of SpaceX, and of Elon Musk's vision of getting to Mars. I like a bunch of Musk's other ideas, in principle if not in execution. But outside of his fields of expertise, let's face it, the man's a ginormous dick, and his endeavours would be better off if he would learn to exercise some self control and let someone else handle the PR.

  85. Jordan Chandler says

    September 27, 2018 at 1:59 pm

    And there's no reason to admire a raging, out-of-control dickwad, because there are smart and successful people who aren't.

    Additionally the SEC just announced they're suing him. I'm sure his shareholders appreciate is dickness

  86. JD Ohio says

    September 27, 2018 at 11:37 pm

    Brad: "Musk is cutting that Gordian Knot. What's interesting is how and why he is able to do that.

    Musk uniquely combines three qualities: good engineering, independent wealth, willingness to risk it all. There have been other people in the last thirty years with combinations of two of those qualities but not all three, which is why they failed in improving Space Flight and Musk is succeeding."

    That still shouldn't give the idiot license to falsely accuse people of child abuse and potentially ruin their lives.

  87. David Schwartz says

    September 28, 2018 at 12:41 pm

    In this instance, what possible reason would Musk have to bring up a nonsensical "pedo" insult where there is a dispute as to the efficacy of Musk's efforts to help Thai children? The most likely explanation is Musk meant (or had a substantial suspicion) that what he literally said was true and he was trying to totally discredit the Unsworth criticisms of Musk's rescue efforts.

    So you're suggesting that Musk did research on Unsworth, found evidence that he was a pedophile, and decided to tell the world about that evidence by referring to Unsworth as "pedo guy" in a tweet? That seems quite a bit far fetched to me. I don't see how a reasonable person could have thought, from that initial tweet, that Musk really had a good reason to believe that Unsworth had sex with children.

    It was not until he persisted with this theme and added more detailed accusations that a reasonable person familiar with twitter would believe that Musk had evidence or justification for his accusations rather than them just a reference to Thailand's reputation as a place where child sex and prostitution are common.

    I certainly saw the first two tweets as Musk essentially saying "he's from Thailand, he must be a pedophile". I judged Musk from those tweets, not Unsworth. It was not until Musk doubled down and got specific that I started thinking he must have something real to make the claims he was making.

  88. Cromulent Bloviator says

    September 28, 2018 at 6:03 pm

    @JD Ohio

    I'm not a lawyer, but I often read 20 stupider things in a single filing!

    Even if your job doesn't bring you into the courtroom, you might consider reading some filings sometime, for entertainment purposes.

    Or find me 5 cease and desist letters, that's got to be good for 20 exceptionally stupid things said by a lawyer. And that's if you cherry-pick the best ones! If they're random, probably 3 digits.

    Govern Yourself Accordingly! :P

  89. Christenson says

    September 28, 2018 at 7:25 pm

    @Jordan Chandler:
    It seems the SEC is suing Musk after getting close to a settlement that Musk suddenly backed out of.

    Seems foolish from a conservation of Musk’s attention standpoint. Are there some undisclosed favors about to be pulled in, perhaps from the the Trump administration?

  90. Encinal says

    September 29, 2018 at 8:00 pm

    @Richard

    Could filing the lawsuit in the U.S. be a strategy to prove, to the satisfaction of the SPEECH Act, that "the defendant would still have been found liable even under U.S. Law in a U.S. court, applying the First Amendment," so that the UK judgement might be enforced in the U.S.?

    If he wins the suit, then he's won the suit. Why would need to then win a suit in the UK, and then try to have it enforced in the US?

    @anne mouse

    What's your basis for claiming that insults are not defamatory? It seems to me that "defame" and "insult" are synonyms.

    No. Defamation is a false factual claim. An "insult" is merely an expression of disrespect. No factual content is necessary.

    R says

    Otherwise words have no meaning.

    The courts have repeatedly ruled that words have no meaning: the 13 Amendment doesn't prohibit conscription, "under God" is not religious, etc.

    Seth says

    But if Musk had provided an explicit basis for his assertions, it also wouldn't have been defamation, according to your analysis.

    You seem to be confusing what you think he is saying with what he actually is saying. If Musk had provided an explicit basis, *and that basis had been true*, that wouldn't have been defamation.

    Fred says

    I am not a First Amendment attorney but my understanding is that the law supposes that
    "Betty Crocker molested and killed my children" damages Betty Crocker's reputation in a way that "Betty Crocker is an evil #@!" does not.

    No, the difference isn't harm, but validity. People have a right to express an opinion, people don't have a right to make false statements.

    Seth says

    Thanks for that. I suppose it's the computer scientist in me, but I can't really tell the practical difference between "Obama is a murderer", "Obama is a murderer because he killed his college roommate", and "Obama killed his college roommate"; the former and latter, under Ken's analysis, are unimpeachable opinions, or hyperbole, or gratuitous insult…but their causative conjunction suddenly brings the statement into the realm of defamation.

    Again, you're putting words in his mouth. "Obama killed his college roommate" would be defamation, if it is taken as being based on private knowledge.

    C says

    You get haled into court, not hailed.

    I take it you mean "hauled"? Ken said "hailed to court", not "hailed into court".

  91. Nathan says

    September 30, 2018 at 1:04 am

    I'm curious whether, even if not defamatory, this series of insults could support other claims such as harassment.

  92. Richard says

    September 30, 2018 at 2:24 pm

    @Encinal:

    From what I understand, the libel laws are harsher in the UK. He might be able to get a larger judgement against Musk there, especially since the plaintiff is a resident of the UK and his reputation will be more impacted by Musk's statement there.

  93. Encinal says

    September 30, 2018 at 8:17 pm

    @Richard

    So, the plan is: fight an entire defamation suit in the US, win it, then go the UK, fight *another* suit and hopefully win more money, then come back to the US, file to have the UK judgment enforced, and use the US case with lower damages as evidence to support the suit to have the higher damages enforced? That sounds incredibly convoluted to me.

  94. Narad says

    September 30, 2018 at 8:46 pm

    not as a gamble for personal profit but to open up space to all Mankind

    Must. Not. Read. Comments. Maybe Musk could settle by offering Unsworth a ride in his space yacht with a quarter-pound of weed and a harem of Thai schoolgirls.

    And yes, it's "haled." Jesus, open a fucking dictionary.

  95. Richard says

    September 30, 2018 at 10:15 pm

    That sounds incredibly convoluted to me.

    What's so convoluted about fighting the US lawsuit you'd have to win anyway to actually enforce your UK judgement, at the same time as the UK lawsuit?

  96. An says

    October 1, 2018 at 10:53 am

    @Ken – What would happen if Kavanaugh tried to use this report as the basis of a defamation suit?

    https://www.scribd.com/document/389847436/Mitchell-Memo

  97. TooOlde says

    October 1, 2018 at 12:02 pm

    That said the most ironic thing about all of this is if you look at the timing, Musk tweeted that Unsworth's failure to sue him essentially proves his point. He tweeted to that effect at the same time as he had his first warning letter regarding a lawsuit in hand from Unsworth's attorney. In other words, he literally asked for the lawsuit to happen.

    He will lose big in the UK. In the US… meh, who knows.

    Also, whatever anyone thinks of Musk (and I think he lacks success at business as yes, even SpaceX loses money) I wish people would stop saying he is an engineer. He isn't.

  98. Brad says

    October 4, 2018 at 3:02 pm

    https://arstechnica.com/science/2018/10/a-shadowy-op-ed-campaign-is-now-smearing-spacex-in-space-cities/

    Not directly related to pedogate, but interesting nonetheless.

  99. Jay says

    October 9, 2018 at 9:05 pm

    Interesting parallels between this and the Kavanaugh accusations.

  100. Muphy says

    October 30, 2018 at 4:08 am

    "Twitter is a place for non-specific shit-talking, and people viewing it are less likely to see things as statements of literal fact."

    This seems a bit too broad. People shit-talk on twitter but a celebrity calling someone a pedo seems a bit beyond the norm.

    Further, he isn't saying "he's a pedo… because the voices in my head tell me so", he's just making the statement without stating what he has to support that. the very fact that he's a billionaire with the resources to afford paying sleuths look into anything he feels like on a whim sort of implies that he has some other information source. He may not but observably that's the assumption quite a few members of the public seem to have gone with.

    Put another way, for a slightly more extreme example if the director of the NSA called someone a pedo on twitter and then just tapped his nose when asked for proof… it would imply that he had extra non-public info. Musk is so wealthy that to a lesser extent the same is sort of implied.

Search Site

Make No Law 1A Podcast

Best LawBlogs Award Winner 2014Best LawBlogs Award Winner 2013

Quote of the Month

"I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid" ~ Kenfoilhat (previous)

Twitface

Follow Popehat (mostly Ken & Patrick), David, Grandy, Charles, Via Angus, Adam, and Marc on Twitter.

Become a fan on Facebook.

  • Facebook
  • RSS
  • Twitter

Subscribe

RSS
Comments RSS

Past Posts By Month

Posts By Category

All content is copyright 2004-2023 by its respective identified authors.
Google's Ad Policy

Website Design by CGD

loading Cancel
Post was not sent - check your email addresses!
Email check failed, please try again
Sorry, your blog cannot share posts by email.