Chapter III : Defenses in Libel

Chapter III

Defenses in Libel

This book does not teach how to prosecute libel or how to make sure an accused or a defendant in a libel case is imprisoned or made to pay. This is because the author campaigns for a totally free press in the Philippines and elsewhere.

Rather, the author expounds on all kinds of defenses available for every man or woman, journalist or not, so that he or she can have an ability to defend against libel suits.

It is a vision of the author to see all Filipinos well-informed of all the happenings or the goings on in the government and in the communities, so that they are intelligent in exercising their original powers or sovereignty. 

The citizens who are fully knowing will know how to vote intelligently, will know how to attack corrupt activities in their midst, will know that jury system is a much better kind of justice system than the present fiscal-judge affair that has nurtured impunity due to unfounded immunity the law breakers enjoy from judges and prosecutors who have remained fearful and bribable since the year 1901, will know that the brutal killing of people, including at least 33 journalists, in the unpopular Ampatuan massacre resulted from lack of will not existing in people acting on their power to judge and not the judge, will know if a criminal punishment is still necessary for libel, among others.

This vision cannot be realized if the press is muzzled.  If the writers’ hands are handcuffed they cannot write.  If the broadcasters’ mouths are sealed they cannot talk. Under this situation nobody would tell the people the truth about incidents affecting them and the issues that developed from those facts.

Now, the time needed to reach this vision can be accelerated if the liberty of expression is also exercised actively by proactive citizens.  The non-journalists have the moral obligation to contribute to the society through blogs of articles and photos, postings of discovered anomalies or irregularities by anyone in Facebook, Multiply, WordPress, Blogspot, Youtube, U-stream, and other internet media. 

So to speak: EVERYBODY CAN BE A JOURNALIST. After all, the freedom of expression, of speech, and of the press is written in the constitution for all people, not only for journalists.

And to hope for the press to grow healthy, like any plants, it needs a fertilizer of knowledge of how to keep and defend the right to press freedom and how it to become truly free. This is always desirable.

There is no doubt that to reach this vision, there is a need to urge the journalists and the rest of the citizens to dare or challenge any perceived wrongdoings, in calling for their vindication, solutions, and non-repetition, and demanding from any government officials to shape up and think they are only slaves of the people.

There are many ways of how to encourage the attitude, habit, tradition, and culture among countrymen to become talkative about sensible and substantive matters affecting them.

And one way to inspire courage among the journalists and citizens to exercise press freedom is to teach them how to defend themselves or how to avoid libel convictions.

Following this premise, the discussion now proceeds to the discussion of all kinds of defenses available to all who love freedom in writing and speaking.

Lack of an element

The fundamental defense against libel suits is to make sure that at least one of the four elements of the crime is not present.  This is what I said in the conclusion of Chapter II of this book.

To understand this, let it be repeated that there are only four elements of libel and these are: (1) Defamation; (2) Identification; (3) Malice; and (4) Publication.

Again, remember the word “DIMP” taught in Chapter II.

If one of them is absent, there is no libel. If there is no publication there is no libel. If there is no defamation, there is no libel. If there is no malice, there is no libel. If there is no identification, there is no libel.

The most important thing to remember, therefore, in writing articles for publication is to make sure any one of the elements is not present in what you will publish.

A later chapter will expound on this.

“GIJUMO” Theory

This theory is a general defense that has the effect of a conclusion that there is no malice that can be presumed.

“GIJUMO” is actually another acronym invented by the author to make recall easy.

It stands for “Good Intention and Justifiable Motive.”

Of course, how can one say there is malice to destroy another’s name when the intention is for the good and the motive is justifiable.

And when there is no malice, we return to the first defense (lack of an element) to apply the law on libel.

“GIJUMO” theory will be expounded in detail in succeeding chapter.

Private communication

When an article in question is actually a private communication addressed to a person other than the one that is the subject of criticism, and that the person to whom the letter is addressed has the moral or legal duty to act on the matters being brought up in the said private communication, there is no libel.

Aside from the fact that this is clearly stated in the law on libel as an exemption to the presumption that there was malice, lack of malice is the effect of making the criticism a private matter between the author and the person who has the obligation to act on what is being written.

This is because, the intention of writing is in accordance with a legal or moral or social duty as it is clearly an act of calling the attention of another person to examine the points raised and mete out sanctions so that an irregularity or an anomaly is arrested or corrected.

Additionally, if malice were intended the author could have published it in newspapers or blogs, but he or she chose to do it quietly to avoid harm to the reputation of the person subject of the private communication.

Qualified privileged communication

Another defense in libel suits consists of assertions that the publications or the broadcasts are “qualified privileged matters.”

This is called by jurisprudence as the “doctrine of qualified privileged communications.”

If an article is a qualifiedly-privileged matter, it means that it cannot be presumed there was malice in the published article or broadcast utterances.

Recall that the law on libel already puts it that there is always malice for every imputation that destroys another honor. This is what is called as “presumed malice.”

If an article is proven as a qualifiedly-privileged matter, the “presumed malice” is removed and the one who filed a suit for libel must give proof of malice, legally referred to by jurisprudence as “actual malice” if he wants to prove there was libel.

Actual malice, in turn, is too difficult to prove.

As will be discussed later, “actual malice” is defined as the act of publishing a defamatory imputation that is false or a lie and the one who published it knew beforehand that it is false, or an act of publishing a defamatory imputation or a claim that is false or a lie that the one who published it did not know it was false or a lie but he was so placed in a situation that it was somewhat foolish or stupid or unbelievable to believe in the claim or the imputation.

The first class of actual malice is therefore what the author calls as the “knowledge malice.”

The other class of actual malice is called by the author as the “reckless malice.” Notice that by being reckless it means that there was no intention and this should have not been classified as malice that basically means intention. The word “reckless” means more of negligence or lack of foresight.

Actually, the author is protesting this “reckless malice” doctrine espoused by the Supreme Court of the US and of the Philippines. It is because it is contrary to nature and another principle of criminal law. 

The basic principle why an act is considered a crime per se is the consciousness in doing that act.

If you are not conscious yet an act happened then it must be because you committed it by accident, recklessly or not. 

Any accident is called accident because the actor was not conscious that it happened.  And if there was no consciousness, the actor did not have any intention to commit that act.  And if there was no intention, then there is no malice because malice is defined as a conscious doing of a prohibited act.

If the legal thinkers in the Highest Tribunal insist that recklessness must be a crime, then it must be a crime that is called “criminal negligence” where the penalties are drastically reduced to uselessness under Article 365 of the Revised Penal Code of the Philippines.  

Ergo, reckless disregard should be classified more as a form of “criminal negligence,” like reckless imprudence resulting in homicide as in a car accident, and not as a regular crime per se.

Under a principle of Revised Penal Code, there are only two types of crimes as to the way an act is committed or done: “dolo” and “culpa.”

By “dolo,” a Latin word, it means there was an intention or malice to commit a crime.

By “culpa,” a Latin word again, it means that there was no intention or no malice to commit a crime. Under this situation, a crime happened because of accident by negligence.

This classification as to the manner of commission is important because the penalty for a “criminal negligence” act is much, much lesser than the same act committed with intention as commanded by Article 365 of the Revised Penal Code.

Nevertheless, included in the class of qualifiedly-privileged matters are those articles that belong to the categories of Public Figures Doctrine and Fair Comments Law.

The Public Figures Doctrine is further subdivided into three classes: (a) publications involving public officers; (b) publications involving private persons who are notoriously or pervasively or popularly known in the community where publications occurred; and (c) publications involving private persons on issues that they voluntarily joined or started and that the subject matters of the publications are within these range of issues.

Former Philippine Supreme Court Justice Josue Bellosillo spun off another qualifiedly-privileged communication class: commonly known as "Fair Comments Doctrine."

In writing his decision in Art Borjal vs Court of Appeals, G.R. No. 126466, January 14, 1999, Bellosillo wrote that any commentary on a public interest cannot be said to have malice if the comments were deduced fairly from the reasonable supposition of facts, even if these reasonable supposition turns out to be false later.

Although this idea is novel, the author is not comfortable with it because opinions are but opinions or an expression. Then, there is no such a thing as false opinion.  Why? An opinion can only be correct or incorrect. Only a claim of facts can be false or true.

Absolutely privileged communication

Another defense, which is the strongest of all, is the doctrine of “absolutely privileged communication.”

Under this doctrine, whatever damaging words published or broadcast cannot be used to convict the accused criminally or to adjudge against a defendant damage awards in civil a case.

This is so because there is a law or a rule or a constitutional provision specifically saying these kinds of defamation cannot be a basis of any civil or criminal suit.

One kind of absolutely privileged communication is a privileged speech of a senator or a member of the House of Representatives. It cannot be used as a basis to charge him criminally or hold him civilly liable.

Another absolutely privileged communication is a complaint or a petition or some other kinds of a pleading or a motion filed in courts or quasi-judicial bodies.

All honor-damaging statements found in a complaint or a petition or a pleading or a motion cannot be used as a basis to hold the author criminally or civilly, as long as those statements are relevant to the issues at hand.

This is a policy of the Supreme Court to encourage the complainants and defendants to tell the truth for better understanding of the issues and for coming to correct decisions.

If there is liability for stating defaming words in a complaint, then many will be afraid to tell the truth and judgments based on things that are untrue are injustices in themselves.

Also, this policy is an invitation to the citizens not to just cry in silence but fight for the interest of keeping orderliness and justice.

This is also in line with the policy of the Supreme Court to encourage all clients to tell the truth to their lawyers. To make sure that clients tell the truth, they are protected from divulging the clients’ secrets acquired in relation to the lawyer-client relationship.

In the case of a client, he cannot be sued for libel just because he or she told his lawyer about allegations that destroy reputations.

Lack of jurisdiction

Another very good defense against libel suits is lack of jurisdiction on the part of the court trying the libel suit involved.

There are two kinds of lack of jurisdiction situations.

The first kind is as to the venue of the court where a particular libelous statement should be filed in accordance with Article 360 of the Revised Penal Code.

When lack of jurisdiction is shown, the court cannot hear the case and it must dismiss the complaint. Otherwise, the decision of the court is null and void and has no effect.

The second is lack of jurisdiction as to the subject matter.

The second type simply means that the complaint is not actually a libel suit but something else. Maybe, the complaint is actually all about defamation that is not published so that it is but a slander or oral defamation.

While the jurisdiction over libel is with the Regional Trial Court, oral defamation is within the province of the Metropolitan Trial Court or Municipal Trial Court or the Municipal Trial Court in Cities or the Municipal Circuit Trial Court.

Prescription

Prescription is a legal term for end of the time within which a libel complaint or case can be filed in court.

Article 1147 of the Civil Code of the Philippines specifically declares that civil libel suits can be filed only within one year. Beyond that period, it can no longer be acted upon.

Article 90 of the Revised Penal Code, upon the other hand, states the same time frame within which a criminal complaint for libel may be filed.

Legally, this is called “prescription of action.”