No proof of falsity, no libel
This is so because the complainant is a public official and in this case it is the public official who has the burden of proof of actual malice.
Now, actual malice is defined as the act of publishing a defamatory imputation despite prior knowledge that the same is false or the act of recklessly disregarding the high probability that the defamatory imputation was false or not true.
With this theory, I drafted the Petition for Review of broadcaster Percy Lapid to be filed today (25 January 2016) before Department of Justice (DOJ).
If you wish to read the Petition for Review, it is pasted below:
Republic of the Philippines
Department of Justice
Padre Faura St.
- versus - Case No. _______________________
(From Manila OCP: NPS Dock. No. XV-07-13K-07406)
Petition for Review
Petitioner Percy Lapid, by the undersigned counsel, respectfully files this Petition for Review against the Resolution of the Honorable Office of the City Prosecutor of Manila dated 3 June 2015 and the resolution denying the motion for reconsideration.
(1) On 8 January 2016 the undersigned counsel of Percy Lapid received a copy of the Resolution of the Office of the City Prosecutor of Manila dated 10 November 2015, denying the Motion for Reconsideration filed against the Resolution dated 3 June 2015.
(2) The fifteen days within which a Petition for Review can be filed ended on 23 January 2016, a Saturday.
(3) If the last day fell on a non-office day, the immediate office day is deemed as the last day, which, in this case, is Monday, 25 January 2016.
(4) The same Resolution dated 10 November 2015 was actually attached by Assistant City Prosecutor Gideon Mendoza to the “Manifestation” that he filed before the Regional Trial Court of Manila, with blank space for the Branch of the RTC.
(5) An original copy of the 10 November 2015 is attached hereto as ANNEX “A” in series.
(6) The same Resolution dated 10 November 2015 denied the motion for reconsideration whose copy is attached hereto as ANNEX “B” series.
(7) The same Motion for Reconsideration was filed timely on 11 August 2015 after receiving on 27 July 2015 the Resolution finding probable cause for libel.
(8) A copy of the 3 June 2015 Resolution that was received by the undersigned attorney on 27 July 2015 is attached hereto as ANNEX “C” series.
(9) The petitioner is Percy Lapid, who may be served notices at the office of Hataw tabloid, Ground Floor, National Press Club Bldg., Manila.
(10) But in the mean time, he asks that he be served with notices through his counsel at the address written below.
(11) The respondent-complainant is Ariel Nepomuceno, who may be served with notices at Unit 1606 Orient Square Building, F. Ortigas Jr. Road, Ortigas Center, Pasig City.
(12) On 21 October 2013 petitioner Lapid published a column article in Hataw tabloid newspaper and this column became the subject matter of the instant petition for review.
(13) Feeling defamed by the same column article, respondent Ariel F. Nepomuceno filed his affidavit of complaint for libel against Lapid, Hataw editor Gloria M. Galuno and Hataw circulation manager Edwin R. Alcala.
(14) A copy of this complaint affidavit and annexes thereof is attached hereto as ANNEX “D” in series.
(15) The Office of the City Prosecutor of Manila issued subpoena against Lapid and other respondents and required him and his co-respondents to submit their counter-affidavits.
(16) Lapid and his co-respondents submitted their respective counter-affidavits.
(17) A copy of the counter-affidavit of Lapid is attached hereto as ANNEX “E” in series.
(18) A copy of the joint counter-affidavit of Galuno and Alcala is attached hereto as ANNEX “F” series.
(19) Thereafter, the Office of the City Prosecutor of Manila issued its first challenged Resolution dated 3 June 2015.
(20) The OCP of Manila dismissed the complaint against Galuno and Alcala but found probable cause as against Lapid.
(21) Disagreeing with the findings of the OCP of Manila, Lapid through counsel filed his Motion for Reconsideration.
(22) Lapid raised the failure of the complainant to substantiate the claim that he did not celebrate his birthday at the KTV bar and it was fatal and must be a sufficient cause to dismiss the case and that there is no evidence submitted to prove that the allegations of Lapid are false in so far as the KTV birthday event is concerned.
(23) In his Motion for Reconsideration, Lapid discussed the following:
A proof of falsity of the allegation is necessary in order to conclude there is probable cause of libel.
This is so because the proof of falsity in the allegation that the respondent wrote about the holding of the birthday at a KTV bar is the only way to say that there was actual malice on the part of the respondent when he wrote the opinion item at his opinion column with Hataw.
Actual malice is meant as a circumstance where one publishes a false matter despite knowledge that it was false or that he publishes the same with reckless disregard of its falsity as if he did not mind whether the matter appeared to be doubtful at the time of the publication.
In the instant case, the Resolution of the Honorable Office of the City Prosecutor resolved that there is probable cause for libel by ruling as follows:
Respondent Percy Lapid is indictable for libel for his statement regarding the venue where complainant allegedly celebrated his birthday. To quote:
“Nitong nakaraang buwan lang, nagdiwang ng kanyang kaarawan si Nepomuceno sa isang KTV bar cum ‘putahan’ sa Quezon City na pag-aari ng kaibigan niyang si David Tan ginanap ang engrandeng selebrasyon.”
With due respect to the Office of the City Prosecutor, it is erroneous to rule that respondent Lapid is indictable on that allegation.
The justification used by the Office, which is an argument that the same pertains to the personal affairs or family affairs of the complainant and that the complainant showed proof that the respondent’s statement was false, is erroneous.
First, there was no allegation in the complaint-affidavit of the complainant that he held the same birthday celebration in private among his relatives only.
In fact, it was “engrande” or grand and this allegation that the same party was held in grand fashion was never rebutted by the complainant, warranting a presumption that it is true that indeed the party was “engrande.”
Additionally, the complainant did not submit proof that he never held his birthday party at that KTV. A proof that he held the party in another place is not a proof that he did not hold his party at the KTV. A man who was about to be promoted or was eyeing to be promoted would use his birthday as a big occasion to invite persons of influence in order for him to clinch the position being aspired for.
Further, even if it was false that he held birthday at the KTV where there may be prostitutes, it is not automatic that it is defamatory to the person pointed to as a celebrant in that place. There must be a statement that the celebrant fucked there and gave his visitors gifts of prostitutes to be fucked.
On this score, the respondent stated in his Counter-Affidavit the hereunder statements.
And there was also nothing defamatory to celebrate in a KTV bar even if it was true that the same KTV bar is reputed to be a prostitution den.
After all, it was always possible to celebrate in any KTV by keeping the birthday celebration as moral as possible.
And it was unbelievable for Mr. Nepomuceno to say it was not true that he celebrated his birthday there.
What was important was it was not written by Lapid that Nepomuceno himself fucked pretty girls in that KTV bar as he celebrated his birthday.
For all God’s sake, it was still possible that Mr. Nepomuceno had his official birthday celebration at Blue Leaf McKinley but it is not impossible that he also celebrated birthday at a KTV bar in Quezon City to treat his other guests there.
HENCE, the complaint of Mr. Nepomuceno utterly lacks merit and it must be dismissed.
Additionally, the Office of the City Prosecutor should have also taken into account the circumstance of fairness on the part of respondent Lapid.
Mr. Nepomuceno could have contacted him at his number 09158227400 or through email@example.com and all these contacts were written at the bottom of my column.
The exact words written at the bottom of my column are these:
“Para sa reklamo, suhestiyon at komentaryo tumawag o magtext sa 09158227400 / Email: firstname.lastname@example.org;
Because he had remedies that he did not exhaust, this complaint should be dismissed for being PREMATURE and for not having used the option available for him to avert the defamation.
When there were still options left to avert defamation, there can be no defamation.
Moreover, let it be stressed that before he wrote the said article, Lapid had sources but he cannot reveal them because if he does he could no longer get more information from these sources.
Journalists are like intelligence officers in gathering information, which, experience-wise, can only be effective if they have assets, a rule which Mr. Nepomuceno knows for having been trained at the PMA, although he failed to graduate with the Batch ’87.
Nevertheless, Lapid is entitled not to be compelled to reveal his sources under Republic Act No. 53, or the so-called “Sotto Law.”
(24) The Office of the City Prosecutor of Manila never believed in the arguments of Lapid and it issued another Resolution dated 10 November 2015.
(25) In its ruling, the OCP of Manila stated:
Respondent Percy Lapid is indictable for Libel for his statement regarding the venue where complainant allegedly celebrated his birthday. To quote, “Nitong nakaraang buwan lang, nagdiwang ng kanyang kaarawan si Nepomuceno sa isang KTV bar cum ‘putahan’ sa Quezon City na pag-aari ng kaibigan niyang si David Tan ginananap ang engranding selebrasyon.”
The above stated defamatory words pertained to the personal affairs or family affairs of (the) complainant and that showed proof that respondent’s written statement was false.
With respect to the rest of the complained libelous articles pertaining to (the) complainant’s public office under the rule of actual malice, announced in the landmark case New York Times vs Sullivan, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice, that is, with knowledge it was false or with reckless disregard of whether it was false or no (p. 997 Boado, Notes and Cases on Revised Penal Code)
Wherefore, premises considered, it is recommended that an information for libel be filed against respondent Percy Lapid and dismissal of the same charge against Gloria Galuno and Edwin Alcala.
The instant motion is assigned to the undersigned Reviewing Prosecutor for review and resolution by virtue of a Memorandum dated October 27, 2015 issued by Deputy City Prosecutor Joselito DR Obejas, Chief of the Tenth/MR Division of the Office, which division is the one in-charge of reviewing, resolving and taking appropriate action on all Motions for Reconsideration of the Resolutions on or after preliminary investigation or re-investigation.
The respondent Percy Lapid, herein movant, alleges that there is no substantial evidence to prove that the allegation is false because the complainant failed to substantiate the claim that he did not celebrate his birthday at the KTV bar; that a proof of falsity of the allegation is necessary in order to conclude there is probable cause of libel because the proof of falsity in the allegation that he wrote about the holding of the birthday at a KTV bar is the only way to say there was actual malice on his part when he wrote the opinion item at his opinion column with Hataw; that there was no allegation in the complaint-affidavit of the complainant that he held the same birthday celebration in private among his relatives only; that the proof that he held the party in another place is not a proof that he did not hold his party at the KTVL that it was possible that the complainant had his official birthday celebration at Blue Leaf McKinley but it is not impossible that he also celebrated birthday at a KTV bar in Quezon City to treat his other guests there; that even if it was false that he held birthday at the KTV where there may be prostitutes, it is not automatic that it is defamatory to the complainant; that complainant could have contacted him at his number written at the bottom of his column and avert eh defamation but, for not having used or exhausted available remedies or options, there can be no defamation and the complaint should be dismissed for being premature; that he does he could no longer get more information from these sources, nevertheless, he is entitled not to be compelled to reveal his sources under RA 53 (Sotto Law); that journalists are like intelligence officers in gathering information, which, experience-wise, can only be effective if they have assets.
The complainant has not submitted any comment or opposition to the motion despite notice.
The motion is not impressed with merit. It is pro forma. It does not raise any new issue. It is a mere rehash of respondent-movant’s allegations in his counter-affidavit which had already been passed upon by the Office when it rendered the questioned resolution.
In any event, there is no compelling reason to modify or reverse the questioned resolution. The untruthful and libelous statement of the respondent-movant in his column Kalampag in Hataw D’yaryo ng Bayan entitled “Nepomuceno, Bagong Hepe ng Customs-IG?” on October 21, 2013 anent the venue, i.e., KTV bar cum ‘putahan’ in Quezon City where the complainant allegedly celebrated his birthday has been shown with sufficient and convincing evidence. It is the considered opinion of the Office that the argument of the respondent-movant that such statement is not defamatory per se since there was no statement that the complainant himself fucked pretty girls in that KTV bar as he celebrated his birthday and gave his visitors gifts of prostitutes to be fucked is a matter of defense and evidentiary in nature which could be better ventilated in and passed upon by the court during the trial of the case, since the only purpose of preliminary investigation is to determine whether the crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. Needless to state that what is material is the meaning that the words in facts conveyed on the minds of persons of reasonable understanding, discretion, and candor, not the meaning of the writer.
Besides, the information has been filed but there is no showing that the respondent-movant has filed a motion to defer or suspend the arraignment and further proceeding and the court has granted such motion.
WHEREFORE, in view of the foregoing, it is recommended that the motion for reconsideration of the respondent-movant Percy Lapid be denied.
(26) It is very clear that the OCP of Manila committed errors in the following manner:
i. In ruling that there is sufficient proof submitted to say there is probable cause that the allegation in the opinion column that the complainant did not celebrate birthday at a KTV bar in Quezon City;
ii. In ruling that the statement that the complainant celebrated birthday at a KTV bar cum “putahan” in Quezon city is defamatory per se;
iii. In ruling to file information before the Regional Trial Court of Manila and that the prosecution would rely only that an evidence of falsity would pop out during the trial;
iv. In ruling as a matter of defense that Lapid’s argument that it does not automatically mean that the complainant and his guests fucked pretty girls when it was stated that the complainant celebrated birthday at a KTV bar cum “putahan” in Quezon City; and
v. In not considering the fact that there was an open invitation for the complainant to contact Lapid for his comments or counter-arguments or side and the fact that the complainant did not avail the same means a tacit agreement that the allegations in the column were true.
(27) As to the first cited error, it is very clear in the records of the case that complainant Nepomuceno did not submit evidence that he did not celebrate birthday at a KTV bar in Quezon City.
(28) It is very clear in the records that Nepomuceno submitted only a self-serving paper where it is stated that he held his birthday celebration at Blue Leaf McKinley in Taguig.
(29) It is of judicial notice that Taguig and Quezon City are not fare from each other.
(30) It is logical to say that it was possible to happen that Nepomuceno can hold celebration of his birthday in two places because the long hours of the day and night are so long a time to offer a big opportunity of celebrating birthday in more than one venues.
(31) So that with this nature it is required of Nepomuceno to submit proof that he did not celebrate birthday in any KTV bar.
(32) So that when there is no proof that he did not hold birthday celebration at any KTV bar in Quezon City, then IT IS LOGICAL TO SAY THAT IT IS NOT FALSE TO SAY THAT NEPOMUCENO HELD BIRTHDAY AT A KTV BAR IN QUEZON CITY.
(33) And if it cannot be said as false, then it is not malicious for Lapid to write the same because malice in libel by a public officer is defined as publishing a false defamatory imputation despite prior knowledge of its falsity or reckless disregard of the appearance of impossibility to be believed in.
(34) And if there is no malice, there is no libel because malice is an element of libel.
(35) For sure, the OCP committed error when it ruled that the statement that Nepomuceno celebrated birthday at a KTV bar cum “putahan” in Quezon City is defamatory.
(36) With due respect, it is not defamatory per se because it is but natural for men to go to KTV bar even if it has the suspect reputation as “putahan” or a prostitution den.
(37) KTVs are a way of life anywhere in the country and it should not be a source of shame to get inside it and enjoy for a night of entertainment.
(38) Besides, to qualify the KTV as a “cum putahan” does not per se men that it is a prostitution den.
(39) It is stressed that it is but natural for most men to be going to these nightclubs and that nightclubs are even given license to operate and business permits by the mayors.
(40) There is therefore no conclusive effect that any KTV bar is a prostitution den or any KTV bar cum “putahan” is a prostitution den.
(41) To say otherwise is for any man to be blind to the reality of life and the way of life.
(42) It is erroneous also for the OCP of Manila to approve the filing of a libel information against Lapid before the RTC of Manila.
(43) That is because it clearly appears that the complainant never submitted proof of falsity of the allegation that Nepomuceno held birthday at a KTV bar “cum putahan” in Quezon City.
(44) The discussion in the “First Error” portion is being adopted for the purpose of arguing this point.
(45) The OCP of Manila ignored the case of Salonga vs Paño, GR No. L-59524, February 18, 1985, that commands the prosecutors not to prejudice the accused with oppressive trials if the prosecutors have no evidence and would hope only that an evidence would pop out during the trial.
(46) Salonga vs. Pano said:
xxx It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93).
(47) Clearly, the OCP of Manila did not mind this popular case that is simple to understand.
(48) Analyzing the instant case shows that the lack of evidence to prove that falsity of the allegation that Nepomuceno held birthday at a KTV bar in Quezon City is sufficient to CREATE A REASONABLE DOUBT.
(49) If reasonable doubt is apparent from the start, the OCP has no moral and legal reason to prosecute the accused.
(50) The OCP of Manila skewed the distinction between opinions from facts.
(51) When Lapid argued that it does not automatically mean that the complainant and his guests fucked pretty girls when it was stated that the complainant celebrated birthday at a KTV bar cum “putahan” in Quezon City, it was a MATTER OF OPINION.
(52) It was not a matter of fact.
(53) Opinion can be decided right away by the City Prosecutor as correct or not so that it is incorrect for the OCP of Manila not to pass upon this argument as to correctness.
(54) Matters of defense are limited only to claims of facts that must be proved with evidence.
(55) They are called as “matters of defense” because they are evidentiary.
(56) And if these are evidentiary, it refers only to matters that can be proved with evidence.
(57) Those matters that can be proved with evidence are only claims of facts.
(58) Opinions can therefore never be considered as a matter of defense or evidentiary.
(59) The OCP of Manila should therefore decide right away whether the argument “that it does not automatically mean that the complainant and his guests fucked pretty girls when it was stated that the complainant celebrated birthday at a KTV bar cum ‘putahan’ in Quezon City” is logically sufficient to negate the probability of malice.
(60) It is erroneous for the OCP of Manila not to consider the open invitation of Lapid in his column for all his readers and Mr. Ariel Nepomuceno to give their views or side or comments if they did not agree with what is written there.
(61) The statement at the bottom of the column article of Lapid states:
“Para sa reklamo, suhestiyon at komentaryo tumawag o magtext sa 09158227400 / Email: email@example.com;
(62) If only Nepomuceno availed of this remedy, his side in the issue could have been written.
(63) And if he did not avail of the same, then it is a tacit agreement on his part that all what were written by Lapid were true.
(64) This is now being submitted to the wisdom of the Secretary of Justice.
WHEREFORE, it is prayed of the Secretary of Justice or duly delegated Officer to DISMISS the complaint for libel and direct the Office of the City Prosecutor of Manila to cause the withdrawal of the information for libel from the court where it was raffled to.
Other reliefs just and equitable are also prayed for. 25 January 2016, Manila.
Causing Sabarre Castro Pelagio
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
BERTENI CATALUÑA CAUSING, CE
IBP No. 972694/ 04-12-2015 / Manila IV
PTR No. 4889732 / 04-12-2015 / Manila
Roll No. 60944
MCLE No. IV – 0007338 issued 10 August 2012
(Valid from 15 April 2013 until 14 April 2016)
MCLE No. V – 0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April 2019)
Unit No. 1606 Orient Square Bldg.,
F. Ortigas Jr. Road, Ortigas Center, Pasig City
Lack of personnel compelled the service of copy to the complainant-respondent.
BERTENI CATALUÑA CAUSING, CE