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Why is ‘dickhead’ not libellous?

April 12, 2011

In Smith v ADVFN [2000] EWHC 1797 it was found that calling someone a ‘dickhead’ on an Internet message board was not libel. Why not? Calling someone ‘impotent’ has been held to be (Cruise v Express Newspapers), calling Liberace gay was once a libel (they actually called him a lot of things, none *really* that offensive). It would be an interesting question today: is calling someone gay damage?

So why was calling a person a dickhead not libel? Well, it seems that it was just insulting and vulgar, which had no real substance or true grounds for damage. But it is interesting that there have been much less insulting terms used to describe people that have been found to amount to libel, like the Liberace case.

It seems that the law still takes into account what is at the core of defamation: reputation. Thomas Paine said that ‘Reputation is what men and women think of us; character is what God and angels know of us’. Calling someone a dickhead on the Internet seems rather tame when it comes to the worst examples of trolling.

But was it the medium, the Internet, which gave more weight to the defence, rather than the term? There is the famous ‘Godwin’s Law’ which states that the longer an internet discussion continues, the likelihood of a mention of Hitler or the Nazi’s increases. It would be likely that comparison to a Nazi in a national newspaper would lead to a libel suit, so why is the Internet different? Trolling and abusive commenting now seems par for course, which is a shame in my opinion. Maybe excessive trolling could be actionable, in a case where it can materially affect an opinion. Strange and high bars to enforce, yes. Bringing in debates about Internet governance, yes. That is not forgetting the problems with proving who is writing anything! But, like boxing as an anomaly in the criminal law, the Internet sits anomalous in defamation.

Anyway, food for thought!

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