Musk's defamation win may reset legal landscape for
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[December 07, 2019] By
(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
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-holes-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.
[to top of second column]
British cave diver Vernon Unsworth (C) talks to reporters with
attorneys Mark Stephens and L. Lin Wood (R) after a U.S. District
Court jury found Tesla Inc chief executive Elon Musk not liable for
damages for calling Unsworth a "pedo guy" in one of a series of
tweets, in Los Angeles, California, U.S., December 6, 2019.
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
"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
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
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."
(Reporting by Tom Hals in Wilmington, Delaware; Editing by Noeleen Walder and
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