Well, who’d have thought it? Californians apparently don’t regard the expression “pedo guy” as defamatory.
I’m referring, of course, to the Los Angeles jury’s decision in Vernon Unsworth’s libel claim against Elon Musk.
Only in California, do I hear you say? Well maybe, though it’s arguable that the outcome might have been the same if Mr. Unsworth had sued over here, rather than over there.
The background facts are well known. Vernon Unsworth helped in the rescue of the young Thai boys trapped in a cave back in 2018; Elon Musk offered to send a team of Tesla engineers and a compact submarine to assist in the rescue effort; Mr Unsworth invited Mr Musk to “stick his submarine where it hurts”; and Musk, being a little perturbed by this seemingly ungrateful response to his offer, responded with his now infamous “pedo guy” tweet.
The tweet was quickly deleted, and didn’t actually refer to Unsworth by name, but Unsworth argued that the content was sufficient to make him identifiable to at least some of Musk’s (at the time) 22 million followers.
Unsworth duly launched defamation proceedings in California in which he claimed $190 million in damages for the defamation which he claimed had left him “humiliated, ashamed and dirtied”.
To outsiders, the argument was over the meaning of the tweet,
Lawyers for Musk stated that he had never intended the tweet to be taken seriously and that in his native South Africa, the term “pedo guy” was a colloquial one which meant “creepy old man”.
They further argued that the tweets were no more than “playground insults” and that “no responsible reader” would have concluded that he were accused of a sexual act against a child. The lawyers claimed that this was evidenced by reference to the fact that not one person had been shown to have interpreted the tweet as a genuine accusation that Mr Unsworth was a paedophile.
Conversely, Unworth’s lawyers argued that the tweet was highly defamatory, and did indeed mean that he is a paedophile.
As this was an American case, the final verdict rested with a jury who took less than 1 hour to decide unanimously that Musk had not libelled Unsworth.
One curiosity is that it seems that the jury concentrated not so much on the meaning of the tweet as on what we call reference: did the tweet refer to Unsworth?
On that issue, most lawyers over here would have answered that question by saying ‘yes’, but apparently, this was not the approach adopted by the Jury in the Golden State. Why so? Because a juror was quoted in Buzzfeed News as saying that the verdict centred around the idea that no reasonable person would have read the tweet and associated that with Mr Unsworth. We don’t know what they thought the tweet actually meant.
Obviously, this case sets no precedents in English Law.
However, on the issue of meaning, it’s worth noting that it may be the latest example of a seemingly global trend on this issue. It is becoming common in cases which relate to social media-based libels, that judges (and in some cases juries) are taking a more impressionistic, and less detailed, approach to reaching a decision than was previously the case.
Certainly, English law is increasingly differentiating between digital libels and those published in more traditional ways.
It has been held in a number of cases in recent years that there is a clear distinction between the way a person will form an impression of a statement depending on whether that statement is one written in a formal news article, or a snippet of information contained within a tweet or a Facebook posting.
The most recent example of this trend in England can be seen from a case which was reported a few weeks ago, in early November. That case concerned statements published within the confines of WhatsApp group chat. The judge determined that each party had engaged in “an overly elaborate analysis…which risked losing sight of the natural and ordinary meaning of the Statement to a hypothetical reasonable reader” who would “of necessity consider only briefly a rapid series of exchanges in a conversational medium”. As a result, the judge confirmed the impressionistic approach to meaning that the Courts now take in social media/online publication claims
And this is why the decision in Unsworth v. Musk is not actually so surprising to English eyes, even though our law of libel is quite different from US law. Had Unsworth sued in England, he would have faced the same issues on reference and meaning as he did on LA with (perhaps) the same outcome.
Only in California? Perhaps not…..