4 ms·

Elon Musk sued by the cave rescue diver he called 'pedo guy' and 'child rapist'

gamblor956 8y ago
Popehat has an interesting, if flawed analysis of the lawsuit. [https://www.popehat.com/2018/09/17/cave-diver-vernon-unsworth-sues-elon-musk/ https://www.popehat.com/2018/09/17/cave-diver-vernon-unswort...] In a nutshell, Popehat argues that the tweets are hyperbole but not defamatory, while the email to Buzzfeed "probably" is. On the Twitter posts. Popehat argues that in the context of Twitter, the tweets are clearly just posturing and insults. This analysis is flawed, as Elon also uses Twitter as a means of communicating with shareholders of Tesla--and has already taken the legal position with the SEC that Twitter is one of the mediums through which he communicates truthful statements to the public. Moreover, while the first Tweet could (and probably would) be regarded as just hyperbole, the followup tweets change the context. Especially the tweet in which he challenges Unsworth to sue him if the first tweet isn't true. While individually the tweets may each fall below the threshold for defamation, in the aggregate they likely would be treated as defamatory, because the pattern of multiple tweets significantly changes the context in which the first tweet was made from mere hyperbole to a factual assertion. On the Buzzfeed email. Popehat argues that the email is only possibly defamatory. I think he needs to crack open a textbook on California defamation law. Musk called him a "child rapist" and made factual statements claiming that Unsworth had married a 12 year (i.e., was a statutory rapist) and traveled to a city apparently known to Musk to be a haven for child sex trafficking for the purposes of engaging in child sex trafficking. All of these statements were intended to be factual, and under Cali law, are per se defamatory because they make allegations that are legally considered so damaging that the simple act of making the statement is considered harmful to the reputation of the victim, even if no immediate economic harm is suffered. There is no "possibly defamatory" nonsense here. Elon deliberately made specific false factual statements. He's fucked. Importantly for the lawsuit, Unsworth is only alleging one count of defamation--he's bundling the tweets and email together into a single count, rather than alleging each individual tweet and email as its own count. This is important, because legally it means that the tweets are being offered as part of a pattern of defamatory publications, allowing Unsworth to avoid the question of whether any particular tweet is defamatory on its own. Elon is fucked, and the sooner he settles the smaller the settlement will be. If this gets to trial, he's looking at an 8-figures. If Unsworth proves malice--and based on the email he likely can--treble punitive damages might apply. If he settles early, he might be lucky to get by with a high 7-figure settlement. Let's hope he listens to his lawyers on this one, because if he tries to fight this, it could financially destroy him.
- gammatrigono 8y ago
  Nobody cares what Popehat has to say. > If this gets to trial, he's looking at an 8-figures. $100 million+ for some shitty insults? Lay off the dope.
- gamblor956 8y ago
  Commentators on Popehats article with more experience than me in Cali defamation law have also pointed out that California has a "totality of the circumstances" analysis of defamation, meaning that all of Musk's statements would be evaluated together rather than separately. And to the dead comment below: 8 figures is simply $10,000,000 or more, which is a fair amount for a series of defamatory statements made to a worldwide audience during a time of significant publicity. Any apology Elon makes would have far smaller of an audience, meaning that if there is a large possibility that people heard and believed the original statements but never heard Elon's apology. Also, Popehat is a well-established legal commentator on the field of First Amendment and IP law that is frequently cited on HN. Torts/defamation is a little out of his bailiwick but his analysis is relevant to this HN discussion.
  - ta76567656 8y ago
    $10,000,000 sounds like the judgement I'd expect in a wrongful death suit, not a single episode of mud slinging. Not saying you're wrong I'm just surprised.
    - gamblor956 8y ago
      A man with a global audience accused another man, in multiple public statements, of pedophilia, sex trafficking, and statutorily raping his wife. When confronted with these statements, he doubled down each time and went further in his attack on the other man's character. Each of those, by itself, could constitute its own act of defamation per se. $10m being too much? On the contrary, $10m seems about right. OTOH, if this was just one guy in a small town saying those same things about another guy, I'd be surprised if you even got into the six digits. Unfortunately for Elon, scope matters.

Popehat has an interesting, if flawed analysis of the lawsuit. [https://www.popehat.com/2018/09/17/cave-diver-vernon-unsworth-sues-elon-musk/ https://www.popehat.com/2018/09/17/cave-diver-vernon-unswort...] In a nutshell, Popehat argues that the tweets are hyperbole but not defamatory, while the email to Buzzfeed "probably" is. On the Twitter posts. Popehat argues that in the context of Twitter, the tweets are clearly just posturing and insults. This analysis is flawed, as Elon also uses Twitter as a means of communicating with shareholders of Tesla--and has already taken the legal position with the SEC that Twitter is one of the mediums through which he communicates truthful statements to the public. Moreover, while the first Tweet could (and probably would) be regarded as just hyperbole, the followup tweets change the context. Especially the tweet in which he challenges Unsworth to sue him if the first tweet isn't true. While individually the tweets may each fall below the threshold for defamation, in the aggregate they likely would be treated as defamatory, because the pattern of multiple tweets significantly changes the context in which the first tweet was made from mere hyperbole to a factual assertion. On the Buzzfeed email. Popehat argues that the email is only possibly defamatory. I think he needs to crack open a textbook on California defamation law. Musk called him a "child rapist" and made factual statements claiming that Unsworth had married a 12 year (i.e., was a statutory rapist) and traveled to a city apparently known to Musk to be a haven for child sex trafficking for the purposes of engaging in child sex trafficking. All of these statements were intended to be factual, and under Cali law, are per se defamatory because they make allegations that are legally considered so damaging that the simple act of making the statement is considered harmful to the reputation of the victim, even if no immediate economic harm is suffered. There is no "possibly defamatory" nonsense here. Elon deliberately made specific false factual statements. He's fucked. Importantly for the lawsuit, Unsworth is only alleging one count of defamation--he's bundling the tweets and email together into a single count, rather than alleging each individual tweet and email as its own count. This is important, because legally it means that the tweets are being offered as part of a pattern of defamatory publications, allowing Unsworth to avoid the question of whether any particular tweet is defamatory on its own. Elon is fucked, and the sooner he settles the smaller the settlement will be. If this gets to trial, he's looking at an 8-figures. If Unsworth proves malice--and based on the email he likely can--treble punitive damages might apply. If he settles early, he might be lucky to get by with a high 7-figure settlement. Let's hope he listens to his lawyers on this one, because if he tries to fight this, it could financially destroy him.

gammatrigono 8y ago
Nobody cares what Popehat has to say. > If this gets to trial, he's looking at an 8-figures. $100 million+ for some shitty insults? Lay off the dope.
gamblor956 8y ago
Commentators on Popehats article with more experience than me in Cali defamation law have also pointed out that California has a "totality of the circumstances" analysis of defamation, meaning that all of Musk's statements would be evaluated together rather than separately. And to the dead comment below: 8 figures is simply $10,000,000 or more, which is a fair amount for a series of defamatory statements made to a worldwide audience during a time of significant publicity. Any apology Elon makes would have far smaller of an audience, meaning that if there is a large possibility that people heard and believed the original statements but never heard Elon's apology. Also, Popehat is a well-established legal commentator on the field of First Amendment and IP law that is frequently cited on HN. Torts/defamation is a little out of his bailiwick but his analysis is relevant to this HN discussion.
- ta76567656 8y ago
  $10,000,000 sounds like the judgement I'd expect in a wrongful death suit, not a single episode of mud slinging. Not saying you're wrong I'm just surprised.
  - gamblor956 8y ago
    A man with a global audience accused another man, in multiple public statements, of pedophilia, sex trafficking, and statutorily raping his wife. When confronted with these statements, he doubled down each time and went further in his attack on the other man's character. Each of those, by itself, could constitute its own act of defamation per se. $10m being too much? On the contrary, $10m seems about right. OTOH, if this was just one guy in a small town saying those same things about another guy, I'd be surprised if you even got into the six digits. Unfortunately for Elon, scope matters.