The Unlawyer

In what must be a first in the Philippines, a Filipino blogger is accused of libel, or so the father of her accuser says: Bambee sued for libel over blog entry, says DAR chief.

“The [agrarian reform department] chief said his son, who is the mayor of Masiu, Lanao del Sur, filed Thursday the case against Bambina “Bambee” de la Paz. He said his son found the blog entry, which heavily criticized the Pangandamans, libelous.

““May na-file nang kaso ng libel kahapon ang anak ko doon sa probinsya (Lanao del Sur) against Bambee de la Paz (My son filed a libel case against Bambee de la Paz yesterday in our home province),” [Nasser] Pangandaman [Sr.] told GMANews.TV in a phone interview.”

And I was expecting this “honor,” if you could call it that, to go to blogger Brian Gorrell but he is safely outside of the Philippines’ jurisdiction and thus beyond the reach of its courts.

As I mentioned in a previous entry, Article 353 of the Revised Penal Code (RPC) defines libel as a:

“Definition of libel. — A libel is [a] 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.”

The general rule is that the mere truth is not a defense against libel under Philippine law. As the first paragraph of Article 354 of the RPC says:

“Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true… “

it is precisely for this reason why the many showbiz gossip columns that are regularly featured in the Philippines’ newspapers are very scrupulous about cloaking the identities of their subjects, especially those reputed to have engaged in salacious acts. Even one blogger, Kitty Go, that regularly remarks about Philippine high-society hijinks is also as discreet.

There is, however, an exception. Returning to the remainder of the first paragraph of the above-mentioned article:

“… if no good intention and justifiable motive for making it is shown… “

Article 361 of the RPC reiterates the point made by Article 354 and states what a person accused of libel must do in order to be acquitted of the charge:

“Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

“Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

“In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.”

Ms. dela Paz will now undergo the process known as preliminary investigation, a procedure that I briefly outlined in another previous entry. In this case, her lawyer – she need not go there herself – must make the trip to the prosecutor’s office in Lanao del Sur to respond in one way or the other to the libel complaint. Among his options: he can ask the investigating prosecutor to dismiss the case for lack of merit. He can also submit Ms. dela Paz’s counter-affidavit and allow the prosecutor to decide the matter on the merits.

Aside from the libel complaint, it is most likely that the complainant will ask the justice department to place Ms. dela Paz on the immigration watch list to prevent her from leaving the country while the case is pending – a great inconvenience for her if it comes to pass as, I understand, she is attending a university in the United States.

For those of you who want to know: does the complainant have the right to file his complaint in his home province? Certainly. Read the third paragraph of Article 360 of the RPC:

“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. [Emphasis mine - Ed.]“

What is the punishment for libel? Article 355 says:

“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.”

Note that the penalty is either imprisonment or a fine. It is up to the sound discretion of the court to impose either, an option that the Supreme Court urges salas handling libel cases to exercise liberally.

Ms. dela Paz’s lawyer, however, claims that the case will be dismissed.

—

The Jester-in-Exile says that the first blogger ever to be sued for libel was the PCIJ Blog, a group effort operated by the Philippine Center for Investigative Journalism (PCIJ). He also mentioned an interesting defense against libel, especially of the online kind:

“First, as far as blogs are concerned — look to the bottom of almost any post, in almost any blog, and one will find a means to react. Yes, the comment thread below any post is in and of itself a manifestation that the right to reply exists on practically anything published in cyberspace. If one disagrees with something published, the one has the option — or even, perhaps, the responsibility — to leave a comment saying so.

“Not leaving a comment expressing one’s disapprovval or disagreement can and should be construed as a waiver of one’s right to reply.

“Second, in the broader view of cyberspace, anyone who is able to read a blog post, a forum thread, or a website online is likewise equipped with the capability to start his own blog, forum thread, or website refuting the contents the said person disagrees with. It is the height of idiocy to say that one can read a blog post and claim that he could not put up a reply online.

“Not publishing a blog post contradicting that which has been published should also be construed as a waiver of one’s right to reply.”

—

What the Jester-in-Exile wrote is all well and good but the elements of libel under Philippine law are already well-established, which were enumerated in the Supreme Court’s 1990 decision in Daez v. Court of Appeals, and which many decisions since have quoted with approval:

(a) imputation of a discreditable act or condition to another;
(b) publication of the imputation;
(c) identity of the person defamed, and;
(d) existence of malice.

So when does malice exist? Brillante v. Court of Appeals says:

“Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed; it implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.”

In Brilliante may lie the seeds of Ms. dela Paz’s salvation. Quoting the 1915 decision in US v. Galeza:

“Mr. Newell adds: “Every communication is privileged which is made in good faith with a view to obtain redress for some injury received or to prevent or punish some public abuse. The privilege should not be abused. If such communication be made maliciously and without probable cause, the pretense under which it is made, instead of furnishing a defense, will aggravate the case of the defendant. And a party will be be taken to have acted maliciously if he eagerly seizes on some e slight and frivolous matter, and without any inquiry into the merits, without even satisfying himself that the account of the matter that has reached him is correct, hastily concludes that a great public scandal has been brought to light which calls for the immediate intervention of the people.”"