
Elon Musk’s ‘pedo guy’ defamation case is going to trial - koolba
https://techcrunch.com/2019/05/10/elon-musks-pedo-guy-defamation-case-is-going-to-trial/
======
jdenning
Unless it turns out that the diver _is_ actually a pedophile, Elon is pretty
screwed here.

The difference between a standard defamation (defamation per quod) and
defamation per se, is that a defamation per se is something that is _so_
harmful that the plaintiff does not need to prove actual damages.

"Traditionally, there have been four general categories of untrue statements
presumed to be harmful to one's reputation and therefore actionable as an
injury claim. Typically, if the statements don't fall into one of these
categories, the plaintiff is required to prove their damages. If it does fall
into one of these categories, damages are usually presumed.

The four general categories are:

    
    
        Indications that a person was involved in criminal activity
        Indications that a person had a "loathsome," contagious or infectious disease
        Indications that a person was unchaste or engaged in sexual misconduct
        Indications that a person was involved in behavior incompatible with the proper conduct of his business, trade or profession"[1]
    

Unless Elon's statements were actually truthful, it seems that his comments
fall under two or possibly three of the above categories. (depending on how
one interprets the email he sent to a buzzfeed reporter)

I know that a lot of people here have a lot of respect for Elon, but come on -
unless he has some undisclosed information of which everyone else is ignorant,
it seems pretty clear that he did defame this guy.

The fact that his lawyers' argument is essentially "you can't defame someone
on Twitter" also seems fairly desperate IMO.

[1]: [https://injury.findlaw.com/torts-and-personal-
injuries/what-...](https://injury.findlaw.com/torts-and-personal-
injuries/what-is-defamation-per-se-.html)

~~~
dragonwriter
> Unless Elon's statements were actually truthful, it seems that his comments
> fall under two or possibly three of the above categories. (depending on how
> one interprets the email he sent to a buzzfeed reporter)

Actually, I think it potentially hits all four:

Pedophilic acts are generally crimes, and the totality of the circumstances
makes it reasonable to conclude that Musk meant that acts, not _just_
orientation, is involved, meeting the first form of per se defamation.

Pedophilia is a diagnosable mental condition, and one which brings significant
social disapprobation; mental disorders have in some cases been held as being
“loathsome” diseases. To the extent that Musk's claim can be viewed as
including (even if not limited to) a claim of pedophilia in the sense of the
disorder, it fits the second category.

Pedophilic acts are also sexual misconduct as well as crimes, so it fits the
third category for much the same reason as the first.

Accusing a professional cave diver _currently employed as such in a rescue of
children_ of being an active pedophile certainly seems like it is accusing
them of something incompatible with their business, trade, or profession.

(Huh, this case could become a new textbook example of _per se_ defamation.)

------
ggm
It is increasingly hard to retain respect for a billionaire who takes on "the
little people" and then eggregiously defames them, and uses his personal
wealth to try and avoid the easy path out: Saying sorry, or not being stupid
in the first place.

Sure. he's musk. he's also (in my personal opinion) behaving like a dickwad.
Man up, say sorry and pay restitution.

------
cgijoe
I have a stupid question. Can anyone just sue anyone else for defamation? I'm
just trying to figure out why Elon is in so much trouble over this. He isn't
an elected official or anything. He's just a dude who happens to make cars and
space ships. Is he not allowed to call people names for some reason? I once
called my friend a douchebag, so can he sue me for defamation?

> "Musk’s lawyers argued that statements on the internet, and more
> specifically on unmoderated forums like Twitter, are presumptively opinion,
> not objective fact."

As much as I think Elon should shut up, get off Twitter and stop making a fool
of himself, I have to agree with his lawyers here. I don't see a crime.

~~~
TallGuyShort
I feel like this isn't quite defamation either (especially since there was
later a retraction of sorts), but calling someone a pedophile is in a distinct
class from calling someone a douchebag. In one case the insult is an inanimate
object that is always an insult, and can't be reasonably taken seriously. In
the other there's an implication of extreme wrongdoing where the line between
insult and false accusation is blurry.

Edit: see the comment about per se defamation in another thread, as I wasn't
aware of that legal distinction but it's the same idea. I don't believe
"douchebag" meets that definition, but pedo guy is border-line at best.

~~~
joecool1029
> I feel like this isn't quite defamation either

He made a specific claim misrepresenting the guy. A claim in which he could
request relief (for instance: employers not hiring him because he was rumored
to be a pedo)

He didn't say 'cave guy looks like a pedo', he literally called him a 'pedo
guy' which most people would think 'oh, maybe this is a person with a history
of abusing children'.

In the least if it makes a someone reading that consider that the plaintiff is
actually a pedo or at least has to stop to research it.... that seems fairly
defamatory.

------
Ice_cream_suit
"What Plaintiffs Must Prove To Win A Defamation Lawsuit In The USA:

To win a U.S. defamation lawsuit, the plaintiff, at the very least, must prove
that the defendant:

Published or otherwise broadcast an unprivileged, false statement of fact
about the plaintiff; Caused material harm to the plaintiff by publishing or
broadcasting said false statement of fact; Acted either negligently or with
actual malice;

Free Speech Vs Defamation:

In the United States, federal defamation law is closely tied to the First
Amendment. As a result, federal slander and libel laws are more defendant-
friendly in the U.S. than those in common law countries, like the U.K. and
Canada. In short, opinion is not considered defamation in the U.S. That being
said, false statements of fact that harm the reputation of an individual or
business, aren't protected under Constitutional Free Speech provisions."

[http://kellywarnerlaw.com/us-defamation-laws/](http://kellywarnerlaw.com/us-
defamation-laws/)

~~~
buchanan
"Publish" is pretty hard to google, can someone elaborate?

In this context, I am wondering about its usage w.r.t. the email to buzzfeed,
is that considered "publishing".

If not, I would have thought then that the libel would be on buzzfeed side,
for publishing unsubstantiated rumors. At the very least, the act of
"publishing" was performed by buzzfeed, even if they had caveat with "Musk
emailed this to us..." .

With respect to Musk tweets, no doubts there, he clearly "published".

~~~
dragonwriter
> In this context, I am wondering about its usage w.r.t. the email to
> buzzfeed, is that considered "publishing".

Publishing for purpose of defamation is communicating the message to another
person by any means.

> If not, I would have thought then that the libel would be on buzzfeed side,
> for publishing unsubstantiated rumors

BuzzFeed published true facts, to wit, that Elon Musk had mailed them certain
claims. Falsity being a required element of defamation (whether libel or
slander), their publication can not be defamatory.

> if they had caveat with "Musk emailed this to us..." .

That's not a caveat, it indicates a completely different fact claim; the claim
“Joe said X did Y” is a distinct fact claim from the claim “X did Y”.

~~~
buchanan
> Publishing for purpose of defamation is communicating the message to another
> person by any means.

So, even if buzzfeed had not published to their website, Musk had already
published to buzzfeed. Interesting !

------
SlowRobotAhead
1\. What a very strange ordeal. Someone please explain but it seems like the
only way this works out for Musk is if he brings some incriminating evidence
on the diver? Why wouldn’t they just settle this out of court?

2\. Everything else aside, I remember seeing the narrow squeezes, and remember
seeing the submarine. That was never going to work.

~~~
cfqycwz
I suppose it could end up as only a slight loss for Musk if the diver can't
demonstrate damages? E.g. if Musk's claim was so absurd and non-credible that
nobody took it seriously?

~~~
jdenning
IANAL, but in my understanding, the diver would need to demonstrate damages in
a standard defamation case, but defamation per se does not require actual
damages.

------
wavepruner
In lawsuits like this, are the judge's and other court employee's salaries
covered by legal fees paid by the loser? Or is this footed by tax payers?

What a ridiculous waste of tax payers money if this is funded by them.

