Unsworth counsel has now confirmed that a lawsuit is being prepared.
Musk appears to be withdrawing his earlier apology and doubling down on his bizarre personal attack on Vernon Unsworth, who helped rescue the young soccer players and their coach from the Tham Luang cave complex in northern Thailand. Musk suggested Unsworth was a pedophile after Unsworth criticized Musk’s rescue submarine. Now Musk is asking why Unsworth did not sue him and why reporters never investigated the allegation — a suggestion that “truth is a defense” defamation. Update:
Unsworth began the heated exchange with an unwarranted attack on Musk for simply designed and sending a rescue submarine to the cave. It was not likely to be used but Unsworth seemed unhinged by the gesture, stating Mush could “stick [it] where it hurts.”
That clearly was too much for Musk who called Unsworth a “pedo guy”, later tweeting: “Bet ya a signed dollar it’s true.” He later deleted both tweets and apologized.
That should be the end of the matter, but Musk rekindled the controversy on Tuesday night in responding to another critic on Twitter by noting “You don’t think it’s strange [Unsworth] hasn’t sued me? He was offered free legal services . . . Did you investigate at all? I’m guessing answer is no. Why?” he wrote in subsequent tweets that are still online.
Truth is indeed a defense to defamation, but there is no evidence to support the libelous claim that Unsworth is a pedophile. This would constitute a per se category for slander. The common law has long treated some types of states as raising per se claims where special damages or proof are unnecessary. These include criminal offenses; loathsome diseases; allegations incompatible with business, trade, profession, or office; and serious sexual misconduct or moral turpitude. This would be a criminal allegation against Unsworth as well as moral turpitude.
Moreover, Unsworth is likely a non-public figure (though Musk could argue that he is either a public figure or limited public figure due to his media profile as an explorer). New York Times v. Sullivan places public officials (and later public figures) under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. That makes it more difficult to prove defamation if you are a public figure.
What is clear is that Musk is now rivaling Donald Trump in legally problematic tweets and must be causing his counsel considerable angina.