Opinions not covered under Philippine libel

Opinions not covered 

under Philippine libel

By BERTENI "TOTO" CATALUÑA CAUSING, CE

This author, with no fear of contradiction, firmly declares that opinions, no matter how unpalatable to ears or no matter how hateful that it can trigger the whole race into standing up in protest, can never be considered as libel under the Philippine laws.

This I argue by proving the statement with the use of the definition of libel given by the Revised Penal Code as found in Article 353.

Article 353 of the RPC states:

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.

So that if Atty. Argee Guevarra called Dr. Vicky Belo as "Dr. Quack Quack," it is not libel.  It is only an opinion of Atty. Argee, no matter how hateful it is.  Of course, the choice of words in one's manner of saying things matter a lot for those whose standards for actions are with high sense of decency.

To repeat, it is not libel.

To the contrary, that opinion when stated appeared to be a statement of disgust.  It is nothing more and nothing less than the most favorite word of the Filipino, "putang ina mo!" 

Upon this note, I am now quoting in toto the Motion for Reconsideration I filed for Hataw newspaper editor Gloria Galuno, columnist Percy Lapid and columnist Jerry S. Yap.

If you are mindful, you can read the very long Motion for Reconsideration below, which I filed before the Office of the City Prosecutor of Manila, to wit:

xxxxxxxxxxxxxxxxxxxxxxxxxxx

Republic of the Philippines

Office of the City Prosecutor

Manila

LIGAYA SANTOS,

                                    Complainant,

-versus-                                             I.S. No. XV-07-INV-15J-05767

                                                                                                     For: LIBEL

        

PERCY LAPID, ET. AL.

                                    Respondents,

x-----------------------------------------x

Motion for Reconsideration

(From Resolution of OCP dated October 28, 2015)

            By the undersigned counsel Atty. Berteni Cataluña Causing who has been absolved along with Edwin R. Alcala, respondents Jerry S. Yap, Percy Lapid and Gloria Galuno respectfully move the Honorable Office to reconsider its Resolution dated October 28, 2016.

The Timeliness

            On 3 January 2017 the undersigned counsel received a copy of this resolution, giving until 18 January 2017 to file this Motion for Reconsideration.

            This Motion for Reconsideration is being filed today, 18 January 2017. 

So that there is no question that this motion is timely filed.

The Grounds

            With due respect, the Office of the City Prosecutor committed errors in the following manner:

(1)  In treating opinions as libel when Article 353 of the Revised Penal Code does not contemplate opinions as part of the imputations that will give birth to libel;

(2)  In “discerning actual malice” from words that are merely opinions and not facts in place of what the actual malice doctrine requires; and

The Discussions

Opinions

not included

by Art. 353

            To start, let Article 353 of the Revised Penal Code be restated, to wit:

 

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.

            A review of Article 353 of the Revised Penal Code shows it defines libel as imputation of:

(1)  a crime; or

(2)  a vice; or

(3)  defect; or

(4)  any act; or

(5)   omission; or

(6)  Condition; or

(7)  Status; or

(8)  Circumstance

All these tended to cause the dishonor, discredit, or contempt of a natural or juridical person or blacken the memory of one who is dead.

            Now, there is no issue that the following words attributed to have been written and published in HATAW against the complainant are OPINIONS and these are:

(1)  “Lider ng Multi-million racket”;

(2)  “Mamamatay”;

(3)  “Reyna ng Illegal Terminal”;

(4)  “Bobo Dela Yuka”;

(5)  “Traydor”;

(6)  “Bruha”;

(7)  “Hunyango”; and

(8)  “HIV” disease.

Not one of these words just above can be classed as a crime, or a vice, or defect, or any act, or omission, or condition; or status, or circumstance.

All these words are no less than OPINIONS of the author, Percy Lapid.

So that it is clear that the Office of the City Prosecutor committed the grave error of considering the same as imputations within the definition of libel.

As such, the Office of the City Prosecutor cannot use these words as bases to say these are imputations by themselves alone.

Therefore, the OCP of Manila is limited only to the imputations of facts, which, in this case, are whether or not it is true that the private complainant is indeed connected to the illegal terminal within her barangay that she had the duty to close down as the barangay chairwoman, and whether or not it is true that she was connected to the murders of Orda and SPO4 Benavidez.

Meaning of Actual Malice cannot be

changed to those that can be discerned

Criminal law is very strict that laws thereon must be expressly proved and the laws thereon must be clearly defined by law or by the Supreme Court.

Actual Malice has been defined by the Supreme Court as a circumstance where the author publishes a false fact despite knowledge it is false or publishes a fact without cross-checking its truth or falsity because the fact appear unbelievable.

In support, the statements in the Reply to the Motion for Reconsideration are hereby adopted as part of this Motion for Reconsideration.

The first erroneous argument of the complainant is that she is likening her situation or circumstances with the libel complainant against Erwin Tulfo in the case decided by the Supreme Court entitled “Erwin Tulfo vs People, G.R. No. 161032; Susan Cambri et al vs People, G.R. No. 161176, September 16, 2008.

In the case of Ligaya Santos, she is a complainant against her former fellow columnist in the same newspaper: She is the complainant who was an insider in the newspaper where she filed a complaint now.   In the Tulfo case cited by Santos herself, the complainant was a person who was not a columnist and who was an outsider in so far as the newspaper Remate is concerned. 

Being an outsider and not privy to the policies of the newspaper, the complainant in the Tulfo case can never be said to be in estoppel as to the policies of Remate newspaper because the complainant in Tulfo did not know what were the policies of the newspaper Remate with respect to editing and publishing.

In the case of Ligaya Santos, she even admitted she was once a columnist of Hataw newspaper. So she is presumed to be knowledgeable of the policies on editing and publishing of opinion columns like the column of respondent Percy Lapid.

Even the newspaper issues published during the time when Ligaya Santos was still a columnist of Hataw carried with it the editorial box where it is written that the editors and owners or publishers or fellow columnists are solely responsible for what they wrote and that any issue with any onion columns must be directed to the author thereof.

A copy of a newspaper where a column of Ligaya Santos appeared is being attached hereto as ANNEX “1-MR” and the editorial box where the disclaimer or “PAUNAWA” appeared are bracketed and marked as ANNEX “1-MR-A.”

Ligaya Santos must be spanked if only for her to learn that she is far different from the complainant lawyer in the Tulfo case.

So that the presumptions brought about by Article 360 of the Revised Penal Code have been overturned by the undisputed fact that Ligaya the complainant here was also a columnist of Hataw and as such columnist she agreed to write knowing that she alone would bear the full and absolute responsibility of the libel she would write.

For Ligaya to punish an editor with imprisonment when the same editor did not even lift a finger in the writing and editing is the height of injustice and a violation of the substantive due process law.

Ligaya must know that no law can be valid for imprisoning persons who did not have any participation in any crime.

So that the provision she cited in Article 360 was merely a presumption and not an absolute provision that all editors who happened to be editors of column items that are libellous must be punished.   And as presumptions, these must be overturned by evidence to the contrary as long as the evidence is clear and convincing.

The fact that Ligaya Santos was once a columnist of Hataw is more than a piece of evidence that is clear and convincing to prove that the other respondents are not liable being merely accidents of time in so far as the column item of Percy Lapid is concerned.

Additionally, it is no longer palatable to hear arguments being repeated when the same was already thrown into the waste basket for being erroneous and downright illogical.

Ligaya Santos must be nailed on her head if only for her to understand that public officials like her cannot sue for libel if they do not submit first evidence of actual malice.

In this case, Ligaya Santos did not even submit proof to show the respondents knew that the defamatory imputations ascribed to him were false and that all other respondents knew these to be false and yet they published the same.

Were the allegations that she was linked to the murders of a son of Fiscal Orda and of a retired police officer libellous?

No, these are not libellous.  This is so because Ligaya Santos did not submit evidence that these allegations of her links to these murders are false.

And even if the same allegations were false, Ligaya Santos failed to submit evidence to show probable cause that the respondents knew these to be false when they caused the alleged publication of the column item of Mr. Percy Lapid.

The same is true with the allegations on her link to the illegal terminals at the Plaza Lawton in front of the Manila Central Post Office Building.  She did not submit evidence that these were false and also did submit evidence to show that the respondents knew these allegations of link to illegal terminals to be false.

Under the Actual Malice Doctrine that is the one that is being involved above, it is an act of publishing despite knowledge that the defamatory imputations published were false or an act of publishing through reckless disregard of the circumstances that would compel the publisher to verify the claims first whether these were true or false.

Now, let it be repeated that Mr. Lapid and his co-respondents were not reckless that they disregarded the falsity that appeared that the respondents did not verify first whether their allegations were true or false.

In fact, since the year 2000 there have been many publications that were published, now published online or on the internet, alleging that Ligaya Santos was linked to the murders of Orda and the police officer.

Among these news outlets were Inquirer and Philippine Star whose publications about her links to murders and illegal terminals were published were all read by respondent Lapid.

To prove these facts, Mr. Lapid submitted copies certified by the National Library and by the concerned publication as true to have been the ones published as such.

It is not yet about the theory of onion-skinned.  It is now more of the doctrine of Actual Malice.

Let Guinguing vs Court of Appeals, GR No. 128959, September 30, 2005, be invoked once more here to assert the doctrine of ACTUAL MALICE, because it applies and is the Bible if the libel complainant were a public official like Ligaya Santos who is a barangay chairwoman.

Guingguing announced:

[D]ifferentiation between ‘public figures’ and ‘public officials’ and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. . . .  [I]t is plain that although they are not subject to the restraints of the political process, ‘public figures’, like ‘public officials’, often play an influential role in ordering society. And surely as a class these ‘public figures’ have as ready access as ‘public officials’ to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

xxx                       xxx                       xxx

 [C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a complex body of law: In the highest, most-speech protective tier is libelous speech directed against a “public figure”. Government can allow libel plaintiffs to recover damages as a result of such speech if and only if the speaker had “actual malice”–that is, the speaker must have known that the speech was false, or he must have been recklessly indifferent to its truth or falsity. This standard means that the speaker is protected against libel suits unless he knew that he was lying or he was truly foolish to think that he was telling the truth. A person counts as a public figure (1) if he is a “public official” in the sense that he works for the government, (2) if, while not employed by government, he otherwise has pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular controversy in order to influence its resolution. Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from recovering against a magazine that portrays him as having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False speech directed against public figures is thus protected from libel actions except in quite extreme circumstances.

            Having argued the foregoing, let the hereunder statements be reiterated.

"That the case at any rate against Jerry S. Yap must be dismissed outright because, aside from other grounds, he is only another columnist of Hataw and he has had no say as to what his fellow columnists would write or what would the editor would publish as news stories;

“That the case against Attorney Berteni Cataluña Causing, CE must be dismissed outright because, aside from other grounds, he was only a legal counsel whenever there are cases filed against Hataw or its employees, reporters, photographers and editors;

“That the case against Gloria M. Galuno must be dismissed because, aside from other grounds, as editor and as admitted by Mr. Percy Lapid Galuno she was not touching the columns written by Mr. Lapid, and also the opinion pages contained a disclaimer that the opinions and matters stated in each of the columns are individual opinions and statements of the columnist and that Hataw is not endorsing them or is not taking part in the formation of those opinions and statements; and

“That the case against Edwin R. Alcala must be dismissed because, aide from other grounds, his participation was limited only to his duties as the circulation manager and that is to manage the distribution of the daily copies of Hataw regardless of the contents of the newspaper;

“As such, Yap, Causing, Galuno and Alcala cannot be said to have conspired with columnist Percy Lapid in writing, editing and publishing the questioned articles;

“Additionally, complainant Ligaya Santos knows this policy of Hataw with respect to columnists or opinion writers because she was once one of the columnists of Hataw, a fact that she has never denied;

“As proof that Ligaya Santos had been a columnist of Hataw, copies of three issues of the newspaper showing the column items of the complainant were attached to the Joint Counter-Affidavit as ANNEX “1,” ANNEX “2” and ANNEX “3”;

“Now, one policy that complainant Ligaya Santos knew from the start is the editorial box of Hataw found at the right bottom corner of Page 3 of Hataw, says:

“PAUNAWA

“Ang mga opinion na lumalabas at inilathala sa mga opinion page ng pahayagang ito ay pananagutan ng manunulat at hindi tuwirang iniendorse ng JSY Publishing. Gayunman, maaaring magpadala ng liham sa pamagitan ng koreo o email ang sino man  lalo’t sa paniniwala nila ay hindi nagging parehas ang manunulat sa pagtatalakay sa layung apektado sila at lumabas sa pahayagang ito. Wala ring binago o ginalaw ang patnugutan sa artikulo ng mga kolumnista. Salamat po. – Patnugutan.”

“Nevertheless, one fact that is not in issue is the fact that complainant Ligaya Santos is a public officer being an incumbent Barangay Chairwoman of Barangay 659-A, Zone 71, District V, Manila;

“And as a public officer, it is no longer an issue that the rule of ACTUAL MALICE applies to determine whether there is libel, in the degree of probable cause or existence beyond reasonable doubt;

“Naturally, one consequence that cannot be avoided by the prosecution when trial comes is to face the obstacle that there is no more presumption of malice that is removed when the offended party is a public officer;

“So that even if there is probability that the Office of the City Prosecutor may rely on, the final question to be answered by the public prosecutor is: “CAN THEY SUCCESSFULLY PROVE LIBEL IN A CASE BEING CONSIDERED?”;

“So that if there would be probable cause for libel in the opinion of the public prosecutor, he must not rely on this to decide to file a case in court and he must be prudent NOT TO FILE A LIBEL CASE IF THERE IS A STRONG INDICATION THAT THE PUBLIC PROSECUTOR CANNOT BE ABLE TO PROVE BEYOND REASONABLE DOUBT;

“At the end of the day, it is the duty of the public prosecutor or a private prosecutor to prove the existence of all elements of libel beyond reasonable doubt;

“ACTUAL MALICE is defined by the jurisprudence as publishing a false imputation despite knowledge it was false or publishing with reckless disregard of the falsity of the imputation despite the circumstances requiring the author to verify the truth of the same imputation;

“Hence, if ever the instant case is recommended for filing in court, the prosecutor would be required to prove the following:

a.      Existence of defamatory imputations referred to in the complaint;

b.     Existence of the publication of the same defamatory imputations;

c.      Existence of the identifiability or that the person claiming to have been libelled can be identified from the writeup published;

d.     Existence of ACTUAL MALICE considering the complainant is a public officer;

“Crucial here is the question whether there existed actual malice or not;

“To prove the existence of actual malice, the following must be proved:

e.     That the defamatory imputations are false or not true;

f.       That the author knew these imputations to be false or that the imputations appear sufficiently unbelievable that further verifications are required to ascertain the truth or falsity of the imputation; and

g.      That despite knowledge of falsity or that despite the fact that the imputations appear to be needing further verification to determine the truth or falsity the accused still published the same imputation.

“The certified copies of published news stories presented by co-respondent Percy Lapid, which certified copies are ANNEX “6,” “7” and “8”,  show publications published more than a decade ago;

“These news stories alleged that the complainant, Ligaya Santos, was pointed to as one of those behind the murder of Francis Orda who is a son of Prosecutor Domingo Orda and also linked to the murder of SPO4 Benavidez, and at the same time she was named as the operator of the terminal at Liwasang Bonifacio in front of the Manila Central Post Office Building;

“And yet, Ligaya Santos has not denied the repeated assertions of ours that she did not file any libel complaint based on these old news stories about illegal parking and the murders of Orda and Benavidez;

“Hence, the silence of Ligaya Santos as the accuser cannot be taken as a right but as an admission that the same assertions are true;

“Only the accused or the respondents have the right to remain silent that their silence cannot be interpreted against them;

“The accuser or the complainant cannot enjoy the benefits of silence;

“This silence alone of Ligaya Santos on the assertions in the news stories that she was linked to the murders of Orda and Benavidez is sufficient to stand as a reasonable doubt to ensure that we cannot be convicted;

“Because there is now an assurance that this silence will at least ensure a reasonable doubt as to the guilt of all the respondents, it is clear that right now as we speak the prosecutor cannot prove the guilt of us all;

“Remember that these old news stories are certified true copies of newspapers and they are now entitled to the presumption as true to prove that the same news stories existed and to prove that the contents therein are reasonable as true because no challenge has been made by complainant Ligaya Santos;

“And if these certified copies of the old newspapers are now presumed as true, there is now no more issue that there is NO Actual Malice;

“Mr. Lapid also asserted in his affidavit that he had read all these certified copies of the newspapers so that he was reasonable in presuming the imputations as true and entitled to believe there was no more need to verify further in order not to be guilty of reckless disregard to the truth or falsity of the imputations at issue;

“And there is no counter proof offered to prove that Mr. Lapid did not read these news stories certified as true and correct;

“To so in another way, these certified newspaper clippings substantiated or supported the statements of Lapid in his questioned column items when she wrote that Ligaya Santos was involved in the murder of Orda;

“Whether the same case in Order was dismissed finally is immaterial because what is needed to prove is the statement that Ligaya Santos was linked to the murder of Orda is only a fact of filing the case;

“And when Ligaya Santos said that the murder case was dismissed she in effect admitted that she was link to the murders of Orda and Benavidez;

“In all other statements written by Lapid, Ligaya Santos merely made claims that these were malicious imputations of crimes, vice and defects and she did not substantiate the said claims;

“Moreover, what is funny here is that Ligaya Santos never said these imputations were false;

“If she never said these as false, it is a tacit admission that these matters stated by Lapid were true;

“It is worth repeating that while Ligaya Santos insisted that no case was filed against her regarding the murder of SPO4 Benavidez, the same statement does not mean that the assertion of Lapid that she was linked to the death of SPO4 Benavidez was false;

“Else said, Ligaya was admitting that she was linked indeed to the death of SPO4 Benavidez but she was not charged in Court or the prosecutor’s office;

“Additionally, Ligaya Santos did not submit documents or other forms of evidence to prove that the matters stated by Lapid were false;

“So that she is now in estoppel to make the respondents and the prosecutor believe that these matters written by Lapid were true;

“Spoken in another way, if these matters imputed were not proved false then there is no actual malice to speak of;

“If there is no actual malice by the degree of probable cause due to the absence of evidence to prove these matters as false, then these cases of libel must be dismissed; and

“It was worth stressing that she did not submit evidence that a person who knew her has read these questioned articles.

The Prayer

IN WITNESS WHEREOF, we sign this Comment to Motion for Reconsideration.

            Other reliefs just and equitable are also prayed for.  18 January 2017, Manila.

Causing Sabre Castro Pelagio

Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila

Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521

By:

BERTENI CATALUÑA CAUSING, C.E.

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)

Cc:

OFFICE OF THE CITY PROSECUTOR

City Hall of Manila

EXPLANATION

         Lack of personnel compelled the service of copies by registered mails.

BERTENI CATALUÑA CAUSINGs, CE