(Bloomberg) -- Elon Musk will have to go to trial in December after a federal judge rebuffed his latest request to throw out a defamation lawsuit filed by a U.K. caver after Musk referred to him as a “pedo guy.”
U.S. District Judge Stephen Wilson in Los Angeles on Monday ruled that a jury will have to decide whether Musk was negligent for failing to check that statements he made in his tweets and “off-the-record” emails were true. The Tesla CEO’s accusations, the judge said, were not germane to any public controversy involving Vernon Unsworth, which might have entitled him to a free-speech defense.
The burden of proof for negligence is lower than that for actual malice, Unsworth’s lawyer Lin Wood said after the hearing. Unsworth will have to persuade the jury by a preponderance of evidence rather than clear and convincing evidence, which will make it easier for the panel to find Musk liable for defamation, according to Wood. Whether or not Musk acted with malice could still be used in seeking punitive damages, Wood said.
“We look forward to the trial,” Alex Spiro, an attorney for Musk, said in a statement. “We understand that, while Musk has apologized, Unsworth would like to milk his 15 minutes of fame.”
Musk started his public spat with Unsworth last year after the caver said in an interview on CNN that a mini submarine Musk had sent to Thailand to help in a rescue of a group of boys trapped in a cave was a “PR stunt.” Unsworth added that Musk could “stick his submarine where it hurts.” Musk responded by calling Unsworth a “pedo guy” in a tweet and a “child rapist” in an email to a BuzzFeed reporter.
Wilson wasn’t persuaded by arguments from Musk’s attorney, Robert Schwartz at Monday’s hearing, that any alleged pedophilia was somehow relevant to the question whether Musk’s submarine might have worked in the rescue or was public relations stunt.
“You’re saying his being a pedophile is germane to the issue whether Musk had sincere motivation,” Wilson said. “That seems a bit of a stretch.”
The judge said he would issue a written ruling later. However, by throwing out Musk’s First Amendment defense that he was engaging with a public figure in a public controversy, Unsworth doesn’t have to prove Musk acted with actual malice to win on his defamation claim.
The case took a new twist this month after court documents showed that Musk, after his initial tweets in July of last year, had hired a private investigator to dig up dirt about Unsworth. It turned out the detective was a convicted conman.
Musk then sent an “off-the-record” email to a BuzzFeed reporter in which he said Unsworth had married a 12-year-old child bride in Thailand. Unsworth says that’s not what the investigator told Musk.
Unsworth said in court filings that he met his Thai wife in London when she was 32 years old. The caver also scoffed at Musk’s defense that he didn’t intend for his “off-the-record” email to be published.
Unsworth said Musk “admitted that he wanted the information published whether true or false, and told the reporter that publication is ‘up to you.”’
The case is Unsworth v. Musk, 18-cv-8048, U.S. District Court, Central District of California (Los Angeles).
(Updates with statement from Musk’s lawyer in eighth paragraph.)
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