Judge: Musk must stand trial

Judge: Musk must stand trial

Tesla CEO Elon Musk gestures during a conversation at the E3 gaming convention in Los Angeles on June 13. (Reuters photo)
Tesla CEO Elon Musk gestures during a conversation at the E3 gaming convention in Los Angeles on June 13. (Reuters photo)

NEW YORK: A federal judge delivered a pair of legal setbacks to technology billionaire Elon Musk this week, rejecting Mr Musk’s attempt to throw out a defamation lawsuit brought against him by a British cave explorer whom Musk had accused on Twitter of being a "pedo guy".

The judge, Stephen Wilson in US District Court in Los Angeles, also ruled that the explorer, Vernon Unsworth, was not a public figure — meaning the bar will be lower for him to prove defamation.

Mr Wilson on Monday ordered that a jury trial begin Dec 3. He denied Mr Musk’s argument that the case should be tossed because his statement, a shortened version of the word pedophile, was a throwaway insult not to be construed as fact.

Mr Musk had also argued that Mr Unsworth was a public figure because of his participation in a high-profile rescue of a youth football team trapped in a cave in Thailand last year. Public figures need to meet a high legal bar called "actual malice" — essentially knowing a statement is false when the statement is made and making it anyway — to prove defamation.

But in an 18-page order, Mr Wilson said that Mr Unsworth was a private figure, who needed only to meet a lower bar — that Mr Musk acted negligently — to recover some damages.

"This case creates the 'perfect storm', where a jury is going to tell us what they think about this kind of conduct on social media," said L. Lin Wood, a lawyer for Mr Unsworth. "If they do what I believe they must under the evidence, the message is going to be strong: 'Don’t do this' and to Mr Musk: 'Don’t do it again'."

In response to questions about Mr Wilson’s ruling, a lawyer for Mr Musk, Alex Spiro, said, "We look forward to the trial."

Mr Unsworth sued Mr Musk in September 2018, months after the two clashed over the cave rescue. The children, who were part of a football team, and their coach were trapped by rising water.

Mr Musk had sent a team of engineers from the companies he leads — Tesla, SpaceX and the Boring Co— to help retrieve the children. The engineers produced three miniature submarines that Mr Musk thought could have helped with the rescue, according to Mr Wilson, but the head of the search operation rejected the idea as impractical.

In an interview with CNN in July 2018, Mr Unsworth called the submarine idea a "PR stunt".

"He can stick his submarine where it hurts," Mr Unsworth said. "It just had absolutely no chance of working."

Mr Musk lashed out at Mr Unsworth on Twitter in a series of posts and called him a "pedo guy." Mr Musk later deleted and apologised for those messages.

In an email to a BuzzFeed reporter about Mr Musk’s statements, Mr Musk urged the reporter to "stop defending child rapists" and suggested that Mr Unsworth had had a child bride. Mr Unsworth has denied all of Mr Musk’s accusations.

Both the email and the tweets are part of Mr Unsworth’s defamation claim. He is seeking damages in excess of $75,000 (2.3 million baht).

Laura Prather, a First Amendment lawyer with the law firm Haynes and Boone who is not involved in the case, said the determination that Unsworth was a private figure made it much easier for him to succeed in trial.

"With actual malice, you have to basically have known that what you were saying was false," she said. "With negligence, it’s just whether or not you exercised due care."

Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, said that Musk had faced an uphill battle to get the suit thrown out. Mr Unsworth is not a well-known public figure and an accusation of being a paedophile is "very damning."

Mr Chemerinsky, who teaches First Amendment law, said the facts of the case were so distinctive that it would be difficult to predict what could happen going forward.

"What you have here is, the plaintiff being involved in a tragedy, Elon Musk accusing him of being a paedophile, the plaintiff not really being a public figure and Elon Musk being a huge public figure," he said. "I’d be very cautious about generalising because it’s such a unique set of facts."

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