BBC's 'Top Gear' Didn't Defame Tesla Vehicle
A U.K. appeals judge watches the show and examines what a television viewer could reasonably take away and whether it's possible that one statement caused Tesla to lose millions of dollars in sales.
Before there was electric automaker Tesla's battles with The New York Times, there was Tesla's battles with the BBC.
In 2008, the BBC show Top Gear presented a road test of the Tesla Roadster. During the episode, the show's host Jeremy Clarkson remarked, "This car really was shaping up to be something wonderful. But then … "
(sound of artificial motor slowing down)
"Oh! … Although Tesla say it will do 200 miles, we worked out that on our track it would run out after just 55 miles, and if it does run out, it is not a quick job to charge it up again. … I don't believe this … the motor has overheated, and I have reduced power. … I did think that the Teslas would bring a bit of peace and quiet to our track with their electric motors. Didn't think it would be this much peace and quiet, though. That is the sound of silence. … I tried to be fair. I did try, but it was -- it didn't work."
In March 2011, Tesla drove into the libel tourism capital of the world -- the U.K. court system -- and accused the BBC of defaming its vehicle. The automaker alleged that Top Gear presenters misled viewers into believing the car would be inferior on a public road.
On Tuesday, an appeals court affirmed a lower court's judgment and ruled that Tesla couldn't make a case for libel.
The automaker hoped to show that Top Gear had made false statements. Tesla said that it never claimed the car had a range of 200 miles and said the TV show falsely presented its car as running out of charge, broken brakes, overheating and an inability to drive.
The pushback against BBC wasn't quite as funny as the way Tesla's CEO, PayPal billionaire Elon Musk, fired back at a New York Times writer a few weeks ago for a bad test drive of Tesla's Model S. In that instance, Musk published data from the car's computer that allegedly showed the journalist improperly rode and charged the car. The response drew so much attention that New York Times public editor Margaret Sullivan weighed in, as did various Tesla fans in Hollywood including producer Dana Brunetti.
In Tesla Motors v. British Broadcasting Corporation, there was less ink but more money on the line.
Unfortunately for Tesla, U.K.'s appeals court has decided to unplug the libel lawsuit. Here's the ruling.
"For the purposes of the appeal I have watched the whole of the film a number of times," writes Lord Justice Martin Moore-Bick in his analysis. "One important matter which is vividly conveyed by the film is the nature of the testing that was carried out by the Top Gear team, which involved violent acceleration (described as a "drag race"), continuous high-speed driving at or near the limits of the car's capability and heavy cornering.
"Testing of this kind is typical of Top Gear, as most viewers of the program would know, but even a person viewing the program for the first time would immediately realize that the style of driving bears no relationship to that which could be engaged in on a public road, even if the car were to be driven quickly by normal standards," Moore-Bick continued.
The judge was able to differentiate between reality and what viewers see on television. He said that although Tesla contends that viewers would be misled into believing that the automaker had promoted a range of 200 miles rather than its real 55 miles, the statements given in the show were "incapable of bearing the primary meaning" that way.
"I do not think that the program is capable of being understood by a reasonable viewer as containing a statement that Tesla was dishonest in claiming a range of 200 miles under normal driving conditions," the judge wrote.
He also dealt with the question of how much influence a TV show like Top Gear has in the auto marketplace.
Tesla pointed out that its sales in the U.K. dragged behind those in European Union and the U.S. -- and blamed about $4 million in lost sales on the BBC series.
"The conclusions which it seeks to draw from them are in my view highly questionable," said the dubious judge on the question of whether Tesla would be able at trial to demonstrate a quantifiable loss from the defamation of an automobile. "Cultural factors are likely to have played some part in determining the level of sales in different countries of a novel vehicle such as the Roadster."
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