David, Goliath and The Atlantic Divide of Defamation Law

Earlier this month, a 64-year old British expat, a private individual and keen amateur scuba diver took on America’s flashiest and most outspoken playboy billionaire in a heavily publicised defamation claim, and the billionaire won.

Bringing the case in California, Vernon Unsworth, the Claimant, sought damages in relation to a tweet made by Elon Musk, founder of Tesla, that referred to him as ‘pedo guy’. Musk argued that no one would take his tweet literally; it was a joke, a throwaway comment in an argument; no sensible person would regard Mr Unsworth as child abuser as a result. The court agreed with him.

The Background

The original argument centred around the fascinating rescue of a group of children who became trapped in an air pocket of a flooded cave in Thailand in summer 2018. The rescue operation involved cave divers swimming through the flooded darkness to locate and bring back the children. Mr Unsworth, an expert on cave diving, and part time resident in Thailand, helped manage the divers and recruit other experts.

The rescue attempt was, as far as the authorities were concerned, a race against time. Heavy rainfall had completely submerged the entrance to the cave, and the water level was still rising. If nothing was done the children, with no light, no food, no clean water and no clothes save for their football kits, would drown; if they hadn’t already. Mr Unsworth helped develop a plan whereby diving teams would swim through the narrow limestone tunnels with spare regulators and enough air for the children to swim back with. One of the tunnels was so narrow that divers had to remove their tanks and to fit through. In one early attempt, one of the divers tragically drowned. It was a fraught, tense atmosphere.

Into this atmosphere came Elon Musk. His company, Tesla, develop state-of-the-art technology, with a particular focus on electric vehicles and renewable energy. Other than his philanthropy and scientific developments, Musk has the reputation of being somewhat of a character. He is frank, outspoken, and departs from the jargon-heavy, PR-honed language of his entrepreneurial peers. He is also very active on Twitter.

Musk offered the rescue operation his electric miniature submarine, which he arranged to be shipped over to Thailand. Being interviewed on television, Mr Unsworth derided this offer as a PR Stunt, and suggested Mr Musk ‘stick his submarine where it hurts’. Mr Musk took to twitter to respond – ‘Ok, pedo guy’.

The case

The case itself was remarkable for two reasons. Firstly, this was a private individual, of no prior interest to the press, bringing a defamation claim against an immensely famous, wealthy public figure. If you think being called a paedophile on twitter is bad, getting called a paedophile on twitter by a man with 30 million followers, many of them leading politicians and journalists, is worse.

Secondly, the case marked another development in the field of ‘Twibel’ law, the rapidly growing field that has grown out of the ability to tell the world your heat-of-the-moment thoughts with a few taps of a screen. Musk’s legal team introduced the concept of the ‘JDart’, which for the non-tech-savvy stands for ‘joke then dart’. In other words, to make an ill advised joke on twitter, realise your mistake, and then quickly delete it and apologise. Which is what Musk did, and it was central to his defence.

The Atlantic divide

The message a cynic might take from this is that saying something silly online or hurting someone’s reputation is fine so long as you immediately delete the offending statement and apologise.

In reality, the law in regard to suing someone for defamation of character is more complicated. In the UK simply deleting a defamatory statement does not remove the damage of it. It is understood that Musk refused to travel to London, and Unsworth felt he had to issue a defamation claim in California to progress matters. Several commentators have come out suggesting that had Unsworth issued in the UK, he may have stood a much better chance.

When suing for defamation of character in the UK, a Claimant has to prove ‘serious harm’ resulting from the defamatory statement. An accusation of criminal activity, particularly one of paedophilia, will almost always constitute serious harm. Whether Musk meant it as a joke or not is irrelevant – it is the meaning of the words that is the relevant factor.

Musk’s argument that no one would have believed the statement was backed by the US Jury (it is unusual to have a jury in English and Welsh civil courts).

What happened in California last week was a dark result for the private individual, and many believe a dark result for justice. In an age where social media looms so heavily over everything we do, the power of the law to challenge injustice needs to be more visible than ever.

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