Top Gear did not libel Tesla, but did it make maliciously false claims?

We already knew that Tesla was holding Top Gear liable for what it sees as libel during its review of the Tesla Roadster. But, the Guardian’s title “Top Gear did not libel carmaker Tesla, high court rules” stood out for us not only because of its content but also because of use of the word libel as a verb. Use of the word libel in that construction made the sentence sound awkward. After review, however, we found that the word libel is both a noun and a verb. As a noun, according to Merriam-Webster, it is a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression. As a verb it means to make or publish a libel against. Therefore, to put the Guardian’s title in a different perspective, Top Gear did not make or publish a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression against Tesla, a high court has ruled.

For Tesla to prove that Top Gear libeled it, it had to prove the comments made in the show are defamatory. There is no single definition of what defamatory means, but some texts citing case law say that a statement will be defamatory if it “tends to lower the person (or company) in the estimation of right-thinking members of society.” In his ruling to dismiss the libel charge, Mr. Justice Tugendhat said the contrast between the driving style on a track compared to the driving style on public roads is significant enough that no reasonable person would parallel the performance presented on Top Gear with that of the normal public.

But this is just a part of the case against Top Gear from Tesla, which is also seeking damages under a malicious falsehood claim. The differences between libel and malicious falsehood appear to be subtle and nuanced. We called a couple lawyers involved in this type of law in the U.S. and they couldn’t think of any distinct differences without investigating the matter further (i.e., they wanted to get paid). Looking at some Internet resources, it appears that in malicious falsehood, the statements do not have to be defamatory in nature, like libel, but are false, made either knowing they were false or with recklessness, and caused damages. Although Top Gear has no obligation in the court system to disprove Tesla’s claims (innocent until proven guilty), it may want to substantiate claims it made in the episode to counter any proof that Tesla can provide to the contrary. If Tesla can prove Top Gear’s claims in the episode are not true, it aired the comments despite them not being true, and Tesla can show damages, Top Gear could be liable for malicious falsehood.

So will the differences between libel and malicious falsehood be enough to keep BBC, which produces Top Gear, executives up at night? Well, if the judge's recent words are any indication of what Tesla's case is missing, BBC may be off the hook. In a recent ruling, Tugendhat said that unless Tesla Motors can prove financial damages, he will dismiss the charge of malicious falsehood. In the original complaint, no specific damages were cited. So unless Tesla restates its case with proof it lost orders or investors or orders were canceled because of what people saw on the Top Gear episode, it will also lose its malicious falsehood claim.