The diver who is suing Elon Musk would have a better shot in the UK

Some words can’t be taken back.
Some words can’t be taken back.
Image: AP Photo/John Raoux
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Elon Musk has called Vernon Unsworth, a British diver who advised on the Thailand cave rescue, a “pedo,” a “child rapist,” and a participant in sex tourism. Musk’s accusations remain unsubstantiated. This week, Unsworth filed a defamation lawsuit against Musk in federal court in Los Angeles, and his lawyers say he plans to file another legal action in London. That would be a strategic move.

Unsworth is seeking more than $75,000 in damages and an injunction to prevent Musk from making future allegations. In a statement, Unsworth’s US-based attorney L. Lin Wood said, “Musk’s influence and wealth cannot convert his lies into truth or protect him from accountability for his wrongdoing in a court of law.”

When it comes to the law, the Tesla CEO may have better luck in an American court than a British one. Here’s why:

How defamation works in the US

Clive Coleman, BBC’s legal correspondent, spells it out: “The first amendment of the United States Constitution which protects free speech makes defamation a challenging legal action to bring. A plaintiff (the person bringing the case) has to prove the statement made about them is false and that it has caused them material harm.”

It gets more complicated if Unworth is determined to be a public figure. Coleman points out that “‘public figure’ is given a pretty wide interpretation” in the US, and if you are considered one, it has to be proved that the person you are suing acted maliciously and knowingly in their statements. In this case, it means that in the US, it could be on Unsworth to prove that Musk knew he was lying and intended to damage Unsworth’s reputation.

How defamation works in the UK

Robert Balin, adjunct professor of media law at Columbia University and media partner at Davis Wright Tremaine, which has offices in the US and in China, explains one of the key differences between US and UK libel laws for Quartz: “In the UK, the defendant has to prove that something is true. In the US, the claimant must show that something is false.” This means that the burden of proof falls on Unsworth in the US to prove that Musk lied. It’s reversed in the UK, where Musk would have to prove Unsworth is a pedophile.

Historically, UK courts are more likely to favor those who claim they have been defamed, and definitions around what constitutes a public figure or public issue are much narrower. “If you make a false statement in the UK, you might as well take out your checkbook, unless it’s really on a matter of public concern,” Balin said.

What it might mean for Elon Musk

If he is sued in the UK, Musk would likely have to prove Unsworth is a pedophile or a child rapist. Unless a UK lawsuit doesn’t go though, of course. “I will expect there will be some kind of skirmishing to try and prevent multiple litigation, not that Musk doesn’t have the resources to battle multiple fronts” Balin said.

In the suit filed in Los Angeles, Unsworth’s attorneys stated that the second action they plan to file in London would be for damages they say Unsworth, who is British, suffered in Wales and England.

Mark Stephens, one of Unsworth’s lawyers, told Business Insider: “These Twibels [Twitter libels] show that falsehoods by the rich and powerful can circulate round the globe to their 22.5 million followers and to the media before the truth can pull its boots on.”

If Unsworth’s action reaches an English court of law, Musk will have to defend his online actions—which, in another situation, he has already paid for in reputation and share price.

So far, Tesla and Musk have yet to comment on the suit.