Remember the brave diver, Vernon Unsworth, who put his life at risk by traversing through muddy waters in a complex cave system to save the school kids stuck in Thailand? The guy who Musk infamously referred to as a ‘pedo guy.’ He landed up suing Musk for defamation, and Musk has now filed a cringe worthy motion.
But before I delve into the details of that motion, here’s a brief recap:
Back in June 2018, 12 young boys and their soccer couch got stuck in a complex cave system in northern Thailand when it flooded due to torrential rains. Vernon Unsworth was the brave diver who volunteered to rescue the kids. As noted on Wikipedia “[t]he route to [the children] had several flooded sections, some with strong currents and zero visibility, and some extremely narrow parts, the smallest measuring only … [15 × 28 inches].” (citations omitted). Yet, Elon Musk came up with an impractical idea to create a rigid steel capsule (mini-submarine) to rescue the boys which naturally got wide-spread media attention. Unsworth, however, noted that given the narrow constraints, Musk’s submarine rescue plan was nothing more than a ‘PR-stunt.’
Specifically, Unsworth stated:
He can stick his submarine where it hurts. It just had absolutely no chance of working. He had no conception of what the cave passage was like. The submarine, I believe, was about 5 foot 6 long, rigid, so it wouldn’t have gone round corners or round any obstacles. It wouldn’t have made the first fifty meters into the cave from the dive start point. Just a PR stunt. He was asked to leave [the rescue site] very quickly.
That did not settle well with the founder of SpaceX and Tesla. He was quick to respond:
As if this was not enough, Musk decided to make it personal by making a defamatory statement about the brave diver:
Musk was questioned by twitter users of his choice of words, to which he responded with impunity:
Musk’s summary judgment motion
On September 16, Elon Musk’s attorneys filed a motion for summary judgment to get the case dismissed on the basis that Musk “didn’t mean” that Unsworth was pedophile. Musk now claims that “[t]he term “pedo guy” was a common insult used during Mr. Musk’s youth in South Africa, which he understood was synonymous with “creepy old man” and aimed at insulting one’s appearance and demeanor.”
Rhetorically speaking, I am not sure who is drinking the Kool-Aid, Elon Musk or his attorneys. Realistically, the average reader is likely to associate the term ‘pedo’ with pedophilia–which carries a much heavier connotation than simply calling someone ‘creepy’.
By making such an outlandish argument Musk’s attorneys are bound to lose their credibility in court.
Musk’s “I didn’t mean to…” defense has no legal significance
Musk’s attorneys forget that subjective intent of the speaker is not the legal standard to determine whether a statement is defamatory. The proper legal standard requires that the court considers the effect of the statement on the mind of the average reader.
Thus, the question that the court must determine is whether an average reader believed Musk was calling the diver a pedophile. While Musk may have had a good defense when he first made the ‘pedo-guy’ comment, he sabotaged his chances of succeeding by ‘doubling-down’ on his ‘pedo-guy’ comment by stating, “Bet ya a signed dollar it’s true [that Unsworth is a pedophile].”
In determining whether a statement is capable of being interpreted as asserting or implying a fact, California courts use the “totality of the circumstances test.” Ferlauto v. Hamsher, 74 Cal. App. 4th 1394, 1401 (1999). Under this test, “first, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. Next, the context in which the statement was made must be considered.” Baker v. Los Angeles Herald Examiner, 42 Cal.3d 42 254, 260-261 (1986). In analyzing the context in which the statements were made, courts must measure the effect of a publication by its “natural and probable effect upon the mind of the average reader.” Morningstar, Inc. v. Superior Court, 23 Cal. App. 4th 676, 688 (1994).
Thus, Musk’s subjective intent is not of concern because the legal standard requires that the statement need to be understood by an average reader in a defamatory sense. Musk’s statement “Sorry pedo guy, you really asked for it” may have been understood by an average reader in a defamatory sense. However, Musk did not do himself a favor by further stating: “Bet ya a signed dollar it’s true.” Reasonably, the statements together provide a showing that an average reader understood that Musk called Unsworth a pedophile. Thus, the statement is bound to be determined in a defamatory sense.
Next, the ‘totality of the circumstances’ test requires a determination of the context in which Musk’s statement was made. In order to do so, the court must measure the effect of Musk’s statement on the mind of the average reader. Here, Musk called Unsworth a ‘pedo-guy’ and he was willing to bet that Unsworth was a pedophile after the public expressed outrage over his statement. It also becomes apparent, contextually, that Musk intended to discredit Unsworth’s ‘PR-stunt’ claim by asserting that he would have the submarine traverse the narrow pathways all the way to ‘cave 5’. Thus, the effect on the mind of the average reader of calling Unsworth a pedophile would be:
(i) to discredit the brave diver’s accomplishments in the rescue mission, and
(ii) to further distract the reader from the fact that Unsworth was an experienced diver who knew more about the cave system than Musk.
Nonetheless, Musk also seems to contradict himself (as to his subjective intent): In his court filing, Musk wants the court to believe that he intended to call Unsworth a “creepy old man.” Yet, Musk also admits that after watching Unsworth’s comments about him on CNN, he “googled Mr. Unsworth and learned that he was an older white man from the United Kingdom who lived in an area of Thailand known for child prostitution and sex trafficking,” which resulted him calling Unsworth a ‘pedo guy’.
Under the totality of the circumstances test, such an admission, when read in conjunction with his twitter posts, provides sufficient evidence that Musk indeed intended to call Unsworth a pedophile since he lived in an area known for child prostitution and wanted the average reader to believe him. Musk was willing to bet a “signed dollar” that Unsworth was a pedophile.
Well, Elon. Unsworth is now asking you for the signed dollar you were willing to wager!
Musk should do himself a favor and settle this case.
Rohit Chhabra is a San Francisco, California based internet defamation attorney who has represented clients at the Northern District of California and the Ninth Circuit Court of Appeals.