On December 6, a federal jury in the Central District of California found that Tesla CEO Elon Musk did not defame cave diver Vernon Unsworth by referring to him in a tweet as “pedo guy.” Unsworth v. Musk, No. 2:18-cv-08048 (C.D. Cal. Dec. 6, 2019). Unsworth, who helped rescue a boys’ soccer team from a flooded cave in Thailand in July 2018, alleged that a series of tweets Musk published to his nearly 30 million Twitter followers were defamatory, falsely accused Mr. Unsworth of being a pedophile and child rapist, and caused Unsworth worldwide damage to his reputation and emotional distress. The jury deliberated for less than one hour before finding in favor of Musk.
During a CNN interview following the 2018 rescue, Unsworth had criticized Musk’s showing up to the cave site with a mini-submarine as a “PR stunt,” and said that the mini-submarine “had absolutely no chance of working” to save the boys. Unsworth’s complaint alleged that Musk retaliated against this criticism with a series of defamatory tweets and a series of defamatory emails sent to a Buzzfeed News reporter.
To prove defamation in the form of libel, a plaintiff must show the existence of a false statement, and that the statement was published to a third party, was made with the requisite degree of fault, and caused harm. Modern defamation cases have increasingly seen defendants arguing that words and accusations that may have formerly been considered defamatory are now understood as mere opinions or hyperbole rather than factual assertions. See Stephanie Clifford v. Donald J. Trump, No. 2:18-cv-02217 (C.D. Cal. Mar. 7, 2019) (Judge S. James Otero dismissed Stormy Daniels’ defamation claims against President Trump, describing Trump’s allegedly defamatory tweet calling Daniels a “total con job” as “rhetorical hyperbole.”)
Similarly, Musk successfully argued that it is understood that statements like the ones he made against Unsworth on Twitter are never meant to be taken seriously or as statements of fact. During his testimony, Musk explained that “pedo guy” is a common insult in his native South Africa and was not to be taken literally to mean that Unsworth is an actual pedophile.
Unsworth’s attorney warned that the Musk verdict would worsen the trend in defamation law of insults on social media becoming “completely open season.” Well, not so fast. Under the law, rhetorical hyperbole that is devoid of factual content cannot support a claim for defamation. Indeed, “‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” Seelig v. Infinity Broadcasting Corp., 97 Cal. App. 4th 798, 809, 811 (2002).