Jury Finds Musk Didn’t Defame British Diver Over ‘Pedo Guy’ Tweet

(Reuters) – Elon Musk’s daring has left its mark on electric
cars and rockets, and now experts say the entrepreneur may have
reshaped U.S. defamation law with his willingness to defend at a
high-stakes trial a lawsuit over an off-the-cuff tweet.

The victory by Tesla Inc’s outspoken chief executive over a
Twitter message describing a British cave explorer as “pedo guy”
has raised the bar for what amounts to libel online, according to
some legal experts.

Musk defended his comments as trivial taunts made on a social
media platform that he argued everyone views as a world of
unfiltered opinion, which is protected as free speech, rather than
statements of fact.

“I think this verdict reflects that there is a feeling that
internet tweets and chats are more like casual conversation whether
you call it opinion or rhetoric or hyperbole and should not be
punished in a lawsuit,” said Chip Babcock, a lawyer who defends
against defamation lawsuits.

Several other attorneys who specialize in defamation cases
privately expressed surprise at the outcome of what they viewed as
a strong case for the cave explorer, Vernon Unsworth. They
attributed it to Musk’s fame and the perceived youthfulness of the
jury.

But they also agreed it would shift the legal landscape,
undercutting the cases that would have seemed viable before the
trial while defendants would use it to try to reduce possible
settlement values.

Musk’s court papers cast his comments as part of the
rough-and-tumble world of Twitter, which rewards and encourages
emotional outbursts and sucks in readers worldwide but that no one
takes seriously.

Mark Sableman, a lawyer who defends defamation cases, said the
freewheeling nature of social media has inevitably changed the
understanding of language and what amounts to defamatory factual
statements, versus opinion.

“I think defendants in modern defamation cases are likely to
point to the vitriolic no-holds-barred nature of modern social
media, cable TV, and political discourse, in contending that many
words and accusations formerly considered defamatory are now
understood only as mere opinions, not factual assertions,” he
said.

In general, to prove libel, the written form of defamation,
someone must show the existence of a false statement, which
defendants often try to present as opinion. The plaintiff also must
show it was published to a third party, it was negligent and it
caused harm.

“While there is more leeway and more hyperbole online and in
social media in general, courts never really accepted that argument
that social media is a libel free-zone,” said Lyrissa Lidsky, a
professor who specializes in defamation at the University of
Missouri School of Law.

Several attorneys said Unsworth appeared to have a strong case,
and noted that Musk failed to convince the judge to dismiss it at
an early stage. But they cautioned that anything can happen in a
courtroom where factors such as the credibility of witnesses and
likeability of parties can become important factors.

“Based on the court’s pre-trial rulings on motions, Mr.
Unsworth’s case going in had the potential to underpin a
substantial verdict in his favor,” said John Walsh, who represents
people bringing defamation cases.

Unsworth helped rescue a boys soccer team from a flooded cave in
Thailand and during a TV interview criticized Musk’s “PR stunt” of
showing up at site with a mini-submersible, which was never used.
Musk responded with several tweets to his almost 30 million
followers and a damaging email to a news outlet, and the lawsuit
followed.

In recent years, judges have been wrestling with social media
comments and whether to consider them factual statements or
protected opinions.

U.S. President Donald Trump, singer and actress Courtney Love
and actor James Woods have all been embroiled in multiple libel
lawsuits over tweets, with mixed results.

Trump has had success casting Twitter as a place where
combatants trade demeaning messages that users understand are not
defamatory statements of fact.

Judge James Otero in Los Angeles dismissed a case against the
president for a tweet blasting as a “total con job” a claim by
adult film actress Stormy Daniels that she was threatened for
speaking about an alleged affair with Trump. Otero described the
message as “rhetorical hyperbole,” fired off with an incredulous
tone that no reasonable person would take as factual statement
about Daniels, whose real name is Stephanie Clifford.

Unsworth’s attorney, Lin Wood, warned social media is “tearing
at the fabric of society” and the Musk verdict would worsen that
trend.

“It is now said by this jury that insults are completely open
season,” he said. “Everyone should be concerned about their
reputations.”