Monday, December 31, 2012

My defenses that won our cause vs Annabelle Rama e-libel cases

My defenses that won our cause 
vs Annabelle Rama e-libel cases


By BERTENI "TOTO" CATALUÑA CAUSING
Author of the book entitled "Simplified Libel Law in the Philippines"


Please read the defenses I put up for movie writer Chito Alcid in the seven counts of libel filed by Annabelle Rama at the Office of the City Prosecutor of Cebu, obviously not for a meritorious cause but to inflict great prejudice on Alcid to fly from Manila to Cebu and Cebu to Manila every time there would be hearing.

READ IT HEREUNDER:



Republic of the Philippines     )
City of Manila                         )SC


Supplemental Counter-Affidavit


            I, CHITO ALCID, of legal age, who may be served with processes at his counsel’s address Renta Pe Causing Sabarre Castro and Associates, under oath, do hereby depose and state as follows:

1.      I am the Chito Alcid being sued by Annabelle Rama in the case she filed and docketed at the Office of the City Prosecutor of Cebu as Docket No. VII-09-INV-12-F-01169;

2.      The instant complaint must be dismissed outright upon the reasons stated hereunder;

3.      First, the Office of the City Prosecutor of Cebu has no jurisdiction to entertain the complaints for libel;

4.      It is basic in criminal law that the Office of the Prosecutor that has jurisdiction of any crime is the one where the said crime occurred;

5.      In the instant case, the crimes being alleged are libel;

6.      What determines territorial jurisdiction is venue in criminal law;

7.      So that if the instant crimes being alleged occurred in Cebu City, only then that the OCP of Cebu has jurisdiction to entertain the instant case;

8.      In libel, venue as the basis of jurisdiction is defined under Article 360 of the Revised Penal Code;

9.      Art. 360 of the RCP states:

Section Two. — General provisions

Art. 360. Persons responsible. — Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.
The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law.ch
Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this article.
No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).
10.  The rule of venue laid down in Article 360 is applicable only to newspapers or any other serial publications and IT DOES NOT APPLY TO POSTINGS ON FACEBOOK or any other online network or on broadcast items;

11.  So that the basis of venue in libel committed on Facebook must be based on the place where the crime of libel was actually committed;

12.  In this case, the respondent has been in Metro Manila all along, in several cities therein whenever he would use his Facebook account;

13.  Now, the complainant did not state in what place did the respondent post those alleged Facebook postings, assuming without conceding that the respondent indeed was responsible for all those postings;

14.  By not stating the place where those posts where posted, the complainant failed to discharge the obligation of the one making the charges: that he or she must show at least a substantial evidence of the place of commission of the crime;

15.  As such, the complainant failed to satisfy the need of justification to sacrifice one’s presumption of innocence for the purpose of trial;

16.  Just imagine that without any evidence at all of the place of commission, is it bearable to the conscience to prejudice the respondent with expenses in flying to Cebu City from Manila and to Manila from Cebu City everytime there would be a hearing?;

17.  On this score alone, for failure to show a probable cause that the alleged crimes of libel occurred in Cebu City, the OCP of Cebu City is compelled by law and rules of evidence to dismiss the instant complaint;

18.  Now, let the issue of whether the perpetrator has been identified to be the respondent;

19.  Let it begin with the premise that the accuser must submit evidence sufficient to create a probable cause as to the identity of the perpetrator, assuming without admitting that the crime of libel was committed;

20.  In the complaint of Annabelle Rama, she only asserted or alleged that the Facebook postings she complained about were posted by the respondent without even submitting the Facebook account name that posted them refers to the person who is one and the same as the respondent;

21.  Of the seven Facebook posts, the respondent admits only one as his own posting and this is the one labeled by the complainant as the “second count” of libel”;

22.  The rest are disowned by the respondent so that this becomes more difficult for the complainant to prove that these were indeed posted by the respondent;

23.  The six other postings are shown to have been posted by one with the Facebook account name “Jo Soriano Evans”;

24.  In the letter-affidavit of the respondent that he caused to be submitted, he expressly disowned those postings under the name “Jo Soriano Evans”;

25.  On the issue of whether the postings are defamatory, the respondent cannot speak of those posts under the name “Jo Soriano Evans”;

26.  But in the post under the name of the respondent, he qualifies that it cannot be considered defamatory because without presenting the circumstances it cannot be known how could these be considered defamatory to the complainant;

27.  For an utterance to be defamatory or not depends on the circumstances availing at the time a statement was uttered;

28.  Was the circumstance one where the event was so purposed for jestings or show of jokes or a comedy event;

29.  Was the circumstance merely one that was purposed for parody?;

30.  Was the circumstance merely one of pleasant exchange of words whereby words that are ordinarily defaming are not as such if considered to be one of exchanges of conversations among friends?;

31.  If the circumstance of the usual acts of the complainant is laid aside, it is very clear that it takes a more severe form of defamation for a defamation to be considered as defamatory with respect to the personality of the complainant, who has always been known by the public as a woman of a devil-may-care attitude that defames anybody of her object of rage;

32.  The word “bastos” is a mere opinion or an expression and cannot be considered defamatory;

33.  The complainant is a public figure and there is no doubt about it;

34.  She is known all over the country and it has been known by the public that she has always displayed arrogant acts and uttered words that are ordinarily unprintable;

35.  As a public figure, she is now required to present evidence of actual malice under Guingguing vs Court of Appeals, G.R. No. 128959, Sept. 30, 2005, a case that emanated from Cebu City;

36.  Actual malice is defined as an act of publishing an imputation despite the prior knowledge of the publisher that it was not true;

37.  Actual malice is also defined as an act of publishing an imputation by recklessly disregarding the falsity or truth of the imputation as when it was stupid or clearly unbelievable to believe in the imputation;

38.  In this case, the complainant did not submit any proof that the facts alleged in the said FB posts are false;

39.  She also did not submit any evidence to show that the poster had the knowledge of falsity at the time of posting on Facebook;

40.  As such, there is a clear lack of malice;

41.  On publication, it is hard to imagine how a Facebook posting can be considered as “publication in the contemplation of the law” on libel in the Philippines;

42.  In Article 353 of the Revised Penal Code, libel is defined as follows:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

43.  In Article 355 of the RPC, libel by writings or similar means is stated as follows:

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

44.  Applying the rules of construction, writings on Facebook can never be considered as part of the enumeration;

45.  Criminal law resolves doubts in favor of the accused;

46.  So that if there is nothing stated in Article 355 that Facebook posting is included as a “similar means”, it cannot be presumed to be included;

47.  So that there is a clear doubt whether Facebook posts are included;

48.  The doctrine of pro reo therefore works in favor of the respondent because this will ensure that the respondent can never be proven beyond reasonable doubt that Facebook posts are included in the class of “similar means” to say there is already publication when a writing is posted on Facebook;

49.  HENCE, there is nothing that the OCP of Cebu City can do now except to dismiss the instant complaint; and

50.  The respondent sayeth naught.

IN WITNESS WHEREOF, I sign this Supplemental Counter-Affidavit on this ____ th day of August, 2012 in the City of Manila.



CHITO ALCID
Affiant

            SUBSCRIBED AND SWORN TO BEFORE ME on this ___th day of August, 2012 in the City of Manila.  I certify that I examined the affiant and I am convinced that he read and understood his affidavit and signed the same without any compulsion or deception.



Administering Officer


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