(Speech delivered during the “Forum on Decriminalizing Libel” held to celebrate World Press Freedom Day on May 4, 2012 at Theodore Buttenbruch Hall, University of San Carlos, Cebu City)

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

A. Stipulations

First, allow me to enumerate certain basic statements, which I presume we are all agreed on, and from which I will try to draw the issue/issues and discuss the proposed solutions.

1.  That every person has a right to enjoy his privacy ( i.e., the right to be left alone) and private reputation.

This is a constitutionally protected right.

“The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property.  It is one of those rights necessary to human  society that underlie the whole scheme of civilization.” (Worcester vs. Ocampo, 22 Phil. 42)

2.  That equally important to a democratic society, such as ours, is every person’s right to free expression, free speech, and freedom of the press.

“No law shall be passed abridging the freedom of speech, of expression or of the press…” (Sec. 4, Art. III, 1987 Constitution).

“Everyone has the right to freedom of opinion and expression: this right includes the right to hold opinions and without interference and seek, receive and impart information and ideas through any media regardless of frontiers.” (Art. 19, Universal Declaration on Human Rights [UDHR]).

“Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed.” (Chavez vs. Gonzales, et al., G.R. No. 168338, Feb. 15,2008)

In United States v. Bustos, Justice Malcolm wrote:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience.

Its contribution to the public weal makes freedom of the press deserving of extra protection.

3.  That defamation laws are intended to protect the right to one’s reputation.

“The law recognizes the value of such reputation and imposes upon him who attacks it, by slanderous words or libelous publication, the liability to make full compensation of the damages done.” (Worcester v. Ocampo, 22 Phil 42)

4.  That under our laws and  jurisprudence, a victim of defamation has three (3) possible remedies, namely:

a) criminal action pursuant to Arts. 355, 356, 357, 358, etc. of the Revised Penal Code;
b) civil action based on the crime of libel pursuant to Art. 100 of the RPC and Sec. 1 Rule III of the Rules of Court; and
c) civil action based on Art. 33 of the New Civil Code.

5.  That defamation laws, because of the criminal liability imposed, can unduly prejudice the right to free expression and press freedom more particularly;

During the 103rd session of the United Nations, the UN Human Rights Committee declared that the Philippines’ Revised Penal Code penalizing libel as a criminal offense is “ excessive and incompatible with Article 19, Paragraph 3 of the International Covenant on Civil and Political Rights to which the Philippines is a signatory.”

6.  That while defamation laws are important, they must be crafted in a way that they can strike an appropriate balance between the right to one’s reputation and the right to free expression.

B. The issue

How can our defamation laws achieve that balance.

C. The proposals

1. Decriminalize libel – No crime, no criminal liability whether imprisonment or fine.

Arguments for decriminalization:

a. Criminal defamation laws are abused by the powerful to limit criticism and to stifle public debate.

b. The threat of harsh criminal sanctions, especially imprisonment, exerts a profound chilling effect on freedom of expression.

c. Non-criminal sanctions in addressing any harm to individuals’ reputations are adequate. (Putting Expression Behind Bars:  Criminal Defamation and Freedom of Expression, Background Paper for EU NGO Forum London 8-9 Dec. 2005);

d. It would uphold the freedom of expression and the press enshrined in the Constitution and in international agreements, like the UN Declaration on Human Rights, to which the Philippines is a party as it would enable journalists to perform their duty to report and criticize official action without fear of censorship or prosecution. (Inquirer Editorial, Feb. 6, 2012).

Consequence:

Remedy for victim:
Civil action for damages under Art. 33 NCC.

2. Do not decriminalize

Arguments against decriminalization of libel:

1.  Libel laws are generally regarded as valid exceptions to the constitutional guarantee of freedom of speech, of expression, and of the press.  Libel often takes the form of sharp personal attacks and goes by such name as calumny, obloquy, epithet, invective, ridicule, and similar other words of art in the lexicon of defamation, is not in any proper sense the communication of ideas protected by the constitution.  It is of the same category as the matters referred to by the U.S. Supreme Court as “the lewd, the obscene, the profane, the insulting or fighting words, those which by their very nature inflict injury and are of such slight social value as a step to truth that any benefit that might be derived from them is clearly outweighed by the social interest in order and morality.

2. Our libel law, as embodied in Arts. 353 – 364 of the RPC, although derived from Act No. 277 of the American colonial government in the Philippines, has never been considered as a mere breach of the peace ordinance but a law for the protection and vindication of private reputation.  Libel is in fact classified in the Penal Code as a “crime against honor”, rather than as a “crime against the public order.”

3. Libel is a malum in se, that is, an offense that is inherently wrong, and not only so because it is prohibited by law (malum prohibitum).

4. Libel is called character assassination, and like the other assassination, its perpetration disturbs the public order.  It is thus properly the concern of the criminal law, which is to preserve public order and decency and to protect the citizen from what is offensive or injurious. (The Decriminalization of Libel is Not the Way, Justice Vicente Mendoza – Statement made before the Senate Committee on Constitutional Amendments, Revision of Codes and Laws at the hearing on S.B. Nos. 5, 110, 223, 918 and 1403 held Feb. 27, 2008).

Proposals:

a. No imprisonment and limit penalty to fine at a reasonable amount (question is fixing the reasonable amount)

Arguments against the proposal to retain libel as a crime but reducing penalty to a mere fine:

1. The reduction of the penalty for libel to a mere fine may pave the way for the ruination of character, while leaving those who are defamed no effective remedy as civil suits for damages are costly, what with the increase in filing fees and the need to hire counsel.

2. Fine as the sole penalty for libel is inconsistent with the system of penalties in the Revised Penal Code in which penalties are graduated according to degree and divided into periods to allow for their individualization according to circumstances (aggravating, mitigating, or no attending circumstances), and the degree of participation of the accused (whether as principal, accomplice or accessory).[ibid]

b. Justice Mendoza suggests that we retain imprisonment and/or fine as penalty/penalties but make a distinction between “political libel” and “private libel.”

By political libel is meant any discreditable imputation that is directed against a public person in his public capacity. Refers to defamatory imputations made while discussing matters of public concern including criticisms of official conduct.

It is political because it relates to how government is run.

Thus, J. Mendoza proposes to amend Articles 354 and 361 of the Revised Penal Code in order to set forth the following fundamental principles based on jurisprudence on free speech of the Philippines and U.S. Supreme Court, to wit:

“1.  Discussion of matters of public concern and criticisms of official conduct should be considered privileged.  They should not be presumed to be malicious even though defamatory, and the defendant shall not be held liable unless it is shown that he acted with actual malice.

2.  The burden of showing that the defendant acted with malice should be on the prosecution which must  prove (a) that the matter or imputation is false and (b) that the defendant acted with knowledge of the falsity of the matter in question or with reckless disregard of whether it was false or not.

3.  While the defendant may prove the truth of the matter charged as libelous, he should not be required to do so.  If the defendant proves the truth of his imputation he should be acquitted, but if he does not, no adverse implication should be drawn from his failure or refusal to prove the truth of what he has said.

What these proposals amount to is to carve out of the presumption that every defamatory imputation is malicious a new category of privileged matters and to make truth a complete defense for such matters.  [Note that under the present law on libel, there are only two privileged matters expressly mentioned, namely: (a) A private communication made by any person to another in the performance of any legal, moral or social duty; and (b) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings, which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Art. 354, RPC)]

These would vitalize freedom of speech and of the press without impairing the right to a good reputation and privacy which are equally fundamental.”

He suggests to amend Articles 354 and 361 of the Revised Penal Code to read as follows:

Art. 354 Requirement of Publicity AND MALICE. –
Every defamatory imputation PUBLICLY MADE is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it be shown, except in the following cases.

1. A private communication made by any person to another in the performance of any legal, moral or social duty; [and]

2. A fair and true report made in good faith, without comments or remarks, of judicial, legislative or other official proceedings which are not confidential in nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions; AND

3. ANY DISCUSSION OF ANY MATTER OF PUBLIC CONCERN OR CRITICISM OF OFFICIAL CONDUCT OR THE CONDUCT OF PUBLIC FIGURES, UNLESS SUCH MATTER IS SHOWN BY THE PROSECUTION TO BE FALSE OR TO HAVE BEEN MADE BY THE DEFENDANT KNOWING ITS FALSITY OR WITH RECKLESS DISREGARD OF WHETHER IT IS TRUE OR NOT.

Art. 361. Proof of the Truth. — In every criminal prosecution for libel, the truth OF THE IMPUTATION OF THE ACTS OR OMISSION CONSTITUTING THE CRIME 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 justifiable ends the defender shall be acquitted.

Proof of the truth of an imputation of an act or omission WHETHER OR not constituting a crime [shall not be admitted unless the imputation is] IF made against Government employees with respect to facts related to the discharge of their official duties MAY BE GIVEN BY THE DEFENDANT TO REBUT EVIDENCE THAT THE DEFAMATORY IMPUTATION WAS MADE BY HIM WITH ACTUAL MALICE.

In other words, Justice Mendoza does not even agree to the proposal of decriminalizing libel by reducing its penalty to fine, how much more abolishing it as a crime because of concerns of speech and of the press. “What needs to be done,” he argues, “is to develop a different standard from that applied to ordinary private libel to be applied to political libel.”

Present jurisprudence on “political libel”

“Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.” (Borjal vs.C.A. 361 Phil. 1)

“For that matter, 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 that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. This is the rule of ‘actual malice.’” (Vasquez vs. C.A. 373 Phil. 238)

Implications:
1. The critic of the official act or conduct of a public official does not necessarily guarantee the truth of all his/her factual assertions.
2. Malice must be proved by the prosecution if the action for libel is to succeed (actual malice rule)

Actual Malice Rule Applies to Public Figure
“A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character has become a ‘public patronage’. He is, in other words a celebrity….. It includes anyone who has arrived at a position where public attention is focused upon him as a person.” (Ayer Productions Pty. Ltd. V. Capulong, 160 SCRA 861)

Broadcast Journalist as a Public Figure
“There should be little controversy in holding that complainant is a public figure. He is a broadcast journalist hosting two radio programs aired over a large portion of the Visayas and Mindanao. Measured against the definition provided in Ayer, complainant would definitely qualify as a public figure. Complainant even asserted before the trial court that his broadcast was listened widely, hence, his notoriety is unquestionable.” (Guingging v Court  of Appeals, supra)

Guingging vs. CA et al., G.R. No. 128959, Sept. 30, 2005
Facts:
Choy Torralba is a broadcast journalist who handled two programs for two radio stations based in Cebu City and said programs were aired over a large portion of the Visayas and Mindanao. He filed a criminal complaint for libel against Segundo Lim and Boy Guingging because the former caused the publication thru a paid advertisement of records of criminal cases filed against Torralba as well as photographs of Torralba being arrested in the Sunday Post, a weekly publication edited and published by Guingging.

Lim and Guingging were convicted by the trial court and affirmed by the CA.

The Supreme Court reversed. Torralba is a public figure. He is a broadcast journalist hosting two radio programs aired over a large portion of the Visayas and Mindanao. He even asserted before the trial court that his broadcast was listened to widely, hence, his notoriety is unquestionable…The extent of Torralba’s ability to influence hearts and minds through his broadcast need not be established, only that he has such capacity and willingness to exert an influence. Complainant’s volition to practice the radio broadcasting profession necessarily thrusts him in the public sphere.

Since Torralba is a public figure comments about him are privileged hence the prosecution must prove actual malice, meaning that Lim and Guingging published them with knowledge that the statements were false or with reckless disregard as to whether or not it was true.

In the case at bar the prosecution failed to prove actual malice because “aside from the fact that the information contained in said publication was true, the intention to let the public know the character of the their radio commentator can at best be subsumed under the mantle of having been done with good motives and for justifiable ends.”

c. Adopt J. Mendoza’s compromise formula of making a distinction between “political and private libel” and decriminalize “political libel.” (Inquirer Editorial, February 6, 2012)

D. Personal observation

I support J. Mendoza’s position of making a distinction between “political libel” and “private libel.”

For “political libel” I believe that for as long as “self-regulation” of, by and for media is not as effective as it ought to be, it should remain criminal but the penalty should be fine only at an amount that is reasonable.

Reasons:
a. To deter some media practitioners from abusing press freedom. The stigma of a criminal record is a sufficient deterrence.
b. To “sharpen the journalist’s sense of responsibility “
c. Civil liability alone may not be effective because commencing one can be expensive, while one does not anymore have to pay any fee to institute a criminal action before the prosecutors’ office.

Mr. Luis V. Teodoro in his presentation during a roundtable discussion at the UP Law Center on February 17, 2012 entitled, Decriminalizing Libel – Towards True Self Regulation, says:

“Assuming it will happen, the decriminalization of libel presents the press and the media with both a challenge as well as an opportunity. It will require them to raise their capacity for self-regulation beyond its current level of deficiency. A working self-regulatory media regime will require both rigorous media observance of the press and media’s own protocols as well as widespread public understanding of the values, methods and ethical and professional standards of the press so that it can effectively monitor and curb media abuse.”

“Among journalists in whatever medium, whether print, radio, TV or online, an even greater emphasis on the rigorous observance of and compliance with, the ethical and professional standards of journalism should be undertaken by journalists and media advocacy groups as well as by the schools where journalists are trained.”

“xxxx we also need to strengthen such self-regulatory media mechanisms as the KBP, the regional and national press councils, and media monitoring publications, among others, in order to provide the public with accessible and credible means of redress short of the filing of libel suits,xxx.”

“x x x I would argue that provided all these conditions are in place, it ( the decriminalization of libel) should eventually consist of the outright repeal of the RPC articles  on libel and defamation x x x.”

2.  While retaining “political libel” as a crime, the text of the law should be amended following the proposal of Justice Vicente Mendoza.

3.  For “private libel,” “the law should be preserved out of regard for the values of reputation and privacy.”

4.  I agree with the stand of the Cebu Citizens-Press Council that the editor, publisher, news director or station manager should only be made liable if he/she reviewed the offensive material before publication.

5. As regards venue I also support the Council’s stand to limit to the RTC of the province or city where the respondent holds office or conducts business but only with respect to “political libel” but not for “private libel.”

In summary the proposed solutions to the issue mentioned can be outlined thus:
1. Decriminalize libel;
2. Do not decriminalize with the following options:
a.) limit the penalty to fine; or
b.) do not reinvent the penalty but distinguish between political and private libel and apply different standards namely: for political libel, malice should not be presumed but the prosecution should prove actual malice while the accused can prove truth to rebut;
c.) adopt the distinction between political and private libel and decriminalize the former;
d.) adopt the distinction between political and private libel and decriminalize only upon fulfillment of certain conditions enumerated by Mr. Luis Teodoro. In the meantime, limit the penalty to fine for political libel;
e.) adopt the distinction between political and private libel, decriminalize political libel and allow the press to work out for the fulfillment of the conditions.

Knowing that

1.    Through the years, there have been bills filed, both in the Senate
and the House, seeking to amend provisions of the Revised Penal
Code and special laws on libel. The bills pending in the current
Congress on decriminalizing libel are Senate Bills 683 and 83 by
Sen. Jinggoy Estrada; SB 2053, Sen. Edgardo Angara; SB 2162,
Sen. Francis Escudero; House Bill 728, Reps. Rufus Rodriguez and
Maximo Rodriguez Jr.; HB 476, Rep. Juan Edgardo Angara; HB
1009, Reps. Teodoro Casiño and Neri Javier Colmenares; HB 2223,
Rep. Salvio Fortuno; and HB 2979, Rep. Salvador Escudero III.

2.    CCPC, in consultation with Cebu media practitioners in print and
broadcast and with advice from Cebu Media Legal Aid (Cemla), has expressed its views about the bills, through resolutions sent to congressional committees studying the bills;

3.    Previously on March 24, 2008, CCPC approved a resolution supporting proposals then pending in Congress that would, among others:

a.    remove the penalty of imprisonment from the crime of libel;
b.    keep libel as a crime but retain only the penalty of fine without subsidiary imprisonment in case of inability to pay the fine; and
c.    adjust the fine as penalty to effects of inflation without being oppressive and confiscatory.

4.    In a period of three weeks preceding the CCPC en banc meeting of
March 29, 2012, its secretariat headed by the executive director
conducted an informal survey among Cebu print and broadcast
practitioners on the issue of decriminalizing libel;

5.    Results of the survey and recommendation of CCPC’s legal advisor
Cemla as well as the resource persons invited to the en banc meeting reaffirmed the view expressed in the March 24, 2008
CCPC resolution; and

Recognizing that

1.    CCPC supports the United Nations Human Rights Committee declaration of October 2011 that the criminal sanction of libel is excessive and violative of the International Covenant on Civil
and Political Rights, of which the Philippines is a signatory; and

2.    The jail term sanction has been used to terrorize and oppress
journalists, silencing with the threat of detention press criticism of
government and reporting of matters of public interest;

3.    Taking out the prison term will end the use of libel law as means to suppress press freedom and yet won’t deprive the complainant
of means of redress in case press freedom is abused.

Considering that

1.    Removing only the jail term, as main or subsidiary penalty, will
remove the threat of arrest and detention that hampers media in
its functions without removing the burden of proof required (proof
beyond reasonable doubt instead of mere preponderance of
evidence);

2.    Consolidating venue for civil and criminal cases arising from the
same offense and requiring venue to be the Regional Trial Court where the principal office of business of the newspaper or broadcast station is located will remove a means of harassment and oppression by the complainant.

NOW THEREFORE, BE IT RESOLVED, as it is hereby resolved, by the Cebu Citizens-Press Council,

[1] That it supports proposals to remove the jail term as main or
subsidiary penalty in the crime of libel;

[2] That in the prosecution of the offense, venue shall be the principal office of business of the newspaper or broadcast station and/or
its journalists and venue of any civil complaint arising from the same offense shall be the same as that of the criminal complaint.

RESOLVED FURTHER that the CCPC resolution of March 24, 2008
be made as annex to this resolution and copies of the documents be provided to pertinent House and Senate committees and national organizations involved in the campaign to decriminalize libel.

APPROVED this 29th day of March in 2012 at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City, Philippines.

RESOLUTION
ON DECRIMINALIZING LIBEL
First Quarter Meeting
Cebu Citizens-Press Council
March 24, 2008

Knowing that

There are at least six (6) bills filed with the Senate—SB 918 (Sen. Edgardo Angara), SB 110 (Sen. Mar Roxas), SB 223 (Sen. Loren Legarda), SB 1403 (Sen. Francis Escudero), SB 5 (Sen. Jinggoy Estrada) and SB 2108 (Sen. Richard Gordon)—and one bill with the House: HB 2802 (Speaker Prospero Nograles), all aimed to amend some provisions on libel in the Revised Penal Code and special laws.

All the bills are motivated by public good and aimed to enhance press freedom without diminishing press accountability;

The press and media organizations such as the Cebu Citizens-Press Council (CCPC) are committed to protect freedom of the press and heighten journalists’ sense of responsibility;

Legislation affecting media also affects functions of the press in society, and thus newspapers, broadcast stations, and media-involved organizations like the CCPC, as well as media practitioners, have a large stake in how Congress will decide on those bills;

Affirming that

The CCPC works with the press and the public on issues affecting media, as in fact it has done with regard to the bills regarding libel in the Senate and the House, studying the proposals and consulting media practitioners about their experiences with libel complaints on their work and their personal lives;

NOW THEREFORE, BE IT RESOLVED by the Cebu Citizens-Press Council, meeting en banc in its first regular quarterly meeting for 2008, as it hereby resolves,

That it inform the House and the Senate through the authors and sponsors of the pending bills on libel, that the Cebu press, comprising both print and broadcast, supports the provisions in the said bills:

[1] Removing the penalty of imprisonment from the crime of libel;
[2] Keeping libel as a crime but retaining only the penalty of fine;
[3] Raising the fine as penalty but not in large amounts that community journalists cannot afford to pay;
[4] Limiting the venue of libel to the court of the province or city where the principal office of work and business of respondent journalists is located;
[5] Reducing prescriptive period of libel from one year to six months from publication;

[6] Exempting from liability any editor, publisher, newspaper or station manager, or news director who has not reviewed the alleged libelous material before printing or airing.

RESOLVED FURTHER that the position paper adopted by newspaper and broadcast editors and representatives of the Cebu Media Legal Aid (Cemla) at a meeting held last March 12, 2008 at Cebu City Marriott Hotel be made as annex to and part of this resolution.

APPROVED AND SIGNED this 24th day of March, 2008 at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City, Philippines.

ARGUMENTS FOR PROVISIONS IN SENATE
AND HOUSE BILLS DECRIMINALIZING LIBEL
THAT THE CEBU PRESS SUPPORTS
(Adopted by newspaper and broadcast editors and representatives of the Cebu Media Legal Aid at a meeting held last March 12, 2008 at Cebu City Marriott Hotel)

[1] Removing jail term as penalty

No journalist wants to end up in jail for what he writes or says. Five bills in the Senate and one in the House all seek to abolish imprisonment as penalty for libel.  We agree with the legislators that removing the threat of jail term will enhance freedom of the press.

[2] Keeping libel as a crime

We are for retaining libel as a crime, not fully abolishing it, as Sen. Francis Escudero proposes. Freedom comes with responsibility and being made to account for excess or abuse helps to sharpen the journalist’s sense of responsibility.

Libel as a crime requires proof beyond reasonable doubt, which serves as safeguard for the journalist. We also want complainants of excess or abuse of the press to have means of redress in the courts instead of using violence or intimidation.

[3] Raising the penalty of fine but within range not oppressive to
community journalists

The fine under existing law of P200 to P6,000 is too low these days, but
the P100,000-P300,000 as proposed by Sen. Loren Legarda is
excessively high, considering the weak financial capability of
community journalists. Between the P20,000-P50,000 range proposed
by Rep. Prospero Nograles and Senator Legarda’s proposed P100,000-
P300,000, perhaps a range more realistic (to the journalist paying) can
be adopted.

[4] Limiting liability for libel to news reporter, opinion maker, or
author of the alleged libel. Editor, publisher, news director, or
station manager shall be liable only if he reviewed the alleged
offensive material before printing or airing.

All too often, a person in the paper or broadcast station is dragged to a        libel case in which he cannot be found guilty under the law. Libel requires malice, which in turn requires at least knowledge of the “offensive” material.

[5] Limiting venue, in case of community journalists, to the
Regional Trial Court of the province or city where the
respondent holds office or conducts business

Existing law is used to harass community journalists. A public official
who resides in Cebu but holds office in Manila can file his complaint in
Manila. A private person who worked in Cebu and the alleged libel is
about his work in Cebu can file his complaint in Parañaque where he
resides.

Community journalists are oppressed not just by the hassle of
answering the complaint but paying for its much higher cost when the
venue is far from the place of work or business. Community journalists
can be found guilty by default, for not having resources to answer
complaints far from the newspaper’s or broadcast station’s home.

[6] Cutting prescriptive period of libel from one year to six months
from publication

The Cebu press appreciates the cut-off time. A person aggrieved by an
“offensive” material doesn’t even have to wait for a month to decide
whether to sue. Still, the Cebu press is comfortable with the six-month
period.

CCPC statement on death of Isagani Yambot     

The Cebu Citizens-Press Council (CCPC), through executive director Pachico Seares, today issued this statement on the death of Isagani Yambot Sr., newspaper publisher:

Isagani Yambot was genuinely concerned about the community press. As trustee and later as chairman of the Philippine Press Institute (PPI), he initiated and supported training programs aimed to improve craft and values of community journalists. He fought for press freedom and grieved with, and helped seek justice for, families of slain media workers in the countryside.

Gani was publisher of a giant national broadsheet, Philippine Daily Inquirer, and yet he was deeply interested in the survival and growth of small newspapers in the community.

As his fellow trustee at PPI, I had seen Gani up close in his efforts to help upgrade the community press and protect its freedom.  At MediaNation 8 held in Cebu last Sept. 30, I thanked him for his help to community media. I’m glad I did.

THE reincarnation of the Provincial Government’s proposed anti-tabloid ordinance, now renamed the Anti-Obscenity Ordinance, triggers discussion among the members of the Cebu Citizens-Press Council (CCPC).

After a review by the Cebu Media Legal Aid (Cemla) and feedback from lawyer Earl Bonachita, president of the Cebu City Chapter of the Integrated Bar of the Philippines, the council found two provisions in the draft law that violates Constitutional guarantees.

“These new provisions (are) constitutionally flawed since it amounts to unreasonable search and seizure, and offensive as they constitute prior restraint and violate due process of law,” the council said in a statement following its last quarterly meeting for 2011 yesterday.

The “flawed” provisions refer to section 9(b) and 9(c) of the proposed anti-obscenity measure. The first grants unto a to-be-created Anti-Obscenity Board (AOB) the power to “conduct inspection and/or investigation on any and all printed or written materials for sale, distribution, or exhibition to the public, to see if such materials are not violative of the ordinance.”

The second, meanwhile, grants unto the same board the “power to recommend to the provincial governor the confiscation or forfeiture of any and all printed or written materials upon finding the same to be obscene.”

Represented in yesterday’s council meeting by its president, lawyer Elias L. Espinoza, Cemla maintains that the proposed AOB cannot give itself the power to “inspect and investigate” because only the court can order seizures. Besides, Espinoza stressed, even the court observes the proper legal steps as enumerated by the Supreme Court in Pita vs. Court of Appeals.

On the governor’s authority to confiscate upon finding that a publication contains obscenity, Cemla said this power is reserved for the courts.

“Obscenity, the Supreme Court has always ruled, is an issue that is proper for judicial determination and should be treated on a case-to-case basis and on the judge’s sound discretion. It is not for a board or the governor to determine obscenity,” the council’s statement read.

The provisions of Sec. 9(b) and 9(c) in the draft ordinance followed the move of the Cebu Provincial Board (PB) to scrap the original measure – the anti-tabloid ordinance.

CCPC also opposed that measure for being “ambiguous and misinformed, having declared tabloids as contraband and equated tabloids with obscenity.”

The CCPC’s position was shared by other sectors, including the Kapisanan ng mga Brodkaster ng Pilipinas.

The PB overhauled the measure but, in so doing, came up with the proposed ordinance creating the AOB and giving it powers.

“Cemla and CCPC recognize the authority of the Provincial Board to enact ordinances aimed to promote the general welfare, as long as they don’t infringe on freedoms guaranteed by the Constitution,” the CCPC statement read.

During its last en banc meeting for 2011, the CCPC board also lauded the initiative of Rep. Giorgidi Aggabao (4th District, Isabela) to amend the Revised Penal Code provision on libel by reducing the prescription period and limiting venues.

If approved, his amend­ment will give people intending to file libel charges against journalists six months from the time of discovery to initiate their criminal action. The current period is one year.

The second proposed area of amendment, meanwhile, is seen to put an end to using the court to harass community journalists.

Under the amendment, a public official who intends to file a complaint against a journalist can no longer file it in his hometown or the place where his office is located. The complaint can only be filed in the principal area of business of the publication he or she intends to sue.

POSITION OF THE CEBU CITIZENS-PRESS COUNCIL ON THE PROPOSED ORDINANCE, ORIGINALLY TITLED ANTI-TABLOID ORDINANCE BUT ALREADY OVERHAULED AND RE-TITLED, SEEKING TO BAN OBSCENE PRINTED MATERIALS IN CEBU PROVINCE AND TO CREATE AN ANTI-OBSCENITY BOARD

CONSIDERING

[1] That the Cebu Provincial Board earlier referred to its committee on laws the so-called Anti-Tabloid Ordinance for study;

[2] That the Cebu Media Legal Aid (Cemla), CCPC’s legal adviser, vigorously opposed the original proposal because:

a) it violated the Constitution since it
—was ambiguous and misinformed, having declared tabloids as contraband and equated tabloids with obscenity;
—constituted prior restraint;
—breached equal protection of laws; and
—transgressed due process of law; which are all gross and serious flaws that made the proposal constitutionally offensive at its core;

b) it was unnecessary because existing laws in the Revised Penal Code prohibit obscenity and they have met the constitutional standard of validity; and

c) it was dangerous, as it entrusted enforcement, which included seizure of printed materials, including tabloids, to town and city mayors in the province who might have ax to grind against the publications.

[3] That CCPC heard the position of Cemla and that of the authors of the ordinance (who sent representatives) during CCPC’s en banc meeting last Sept. 22, 2011 at Harolds Hotel;

[4] That the Provincial Board committee on laws was apparently persuaded by Cemla stand and the opposition of other sectors, including Integrated Bar of the Philippines (IBP) Cebu City chapter, Kapisanan ng mga Brodkaster ng Pilipinas (KBP) Cebu, and Malacañang which warned that the proposal would violate the Constitution;

[5] That the said PB committee on laws totally overhauled the original ordinance and came up with a new version which proposed the prohibition of the “sale, distribution and exhibition of obscene printed or written materials” and the creation of an Anti-Obscenity Board;

CONSIDERING FURTHER

[6] That CCPC recognizes the right of local legislatures to enact ordinances aimed to promote the general welfare, as long as they don’t infringe on freedoms guaranteed by the Constitution, and CCPC also opposes obscenity as defined by the Supreme Court;

[7] That while the new version of the ordinance has responded to many of the objections of Cemla and other organizations, it includes among the powers of the proposed Anti-Obscenity Board (AOB):

—under Section 9 (b) the power “to conduct inspection and/or investigation on any and all printed or written materials for sale, distribution, or exhibition to the public, to see if such materials are not violative” of the ordinance; and

—under Section 9 (c) the power “to recommend to the provincial governor the confiscation or forfeiture of any and all printed or written materials upon finding the same to be obscene.”

[8] That Cemla has found those provisions to be constitutionally offensive as they constitute prior restraint and violate due process of law since, Cemla submits, the AOB has no authority to inspect and investigate printed materials and neither has the governor the authority to seize and confiscate materials they find to be obscene:

—Obscenity, the Supreme Court has always ruled, is an issue that is “proper for judicial determination and should be treated on a case-to-case basis and on the judge’s sound discretion.” It is not for the board or the governor to determine obscenity. They may file a complaint for obscenity but it’s the court that decides.

—Confiscation of property, under the guise of obscenity, is not within the power of the AOB or the governor. Only the court can order the seizure after proper legal steps are taken which are enumerated in Pita vs. Court of Appeals (GR #80806, Oct. 5, 1989);

—Newspapers and magazines are highly perishable commodity. Inspection, investigation, and confiscation before judicial determination of obscenity constitute prior restraint and violation of due process;

NOW THEREFORE BE IT RESOLVED, AS IT HEREBY RESOLVES, that the Cebu Citizens-Press Council express, strongly and clearly, its opposition to Section 9 (b) and (c) of the proposed Provincial Board ordinance as they offend the constitutional provisions on prior restraint and due process of law, which would impair freedom of the press and property rights of publications;

BE IT ALSO RESOLVED that a copy of the resolution be provided to the Provincial Board for its consideration and that Cemla volunteers through its president Elias Espinoza be authorized to represent CCPC at any public hearing the Provincial Board may call on the proposed ordinance;

BE IT RESOLVED FINALLY that a copy of the Cemla position on the issue be annexed to this document.

UNANIMOUSLY APPROVED this sixth day of December, 2011, during CCPC’s 25th en banc meeting at the MBF Cebu Press Center, Sudlon, Lahug, Cebu City, Philippines.

STATEMENT OF CEBU MEDIA LEGAL AID ON THE ANTI-TABLOID ORDINANCE OF THE PROVINCE OF CEBU, WHICH WAS OVERHAULED AND RE-TITLED, SEEKING TO BAN OBSCENE PRINTED MATERIALS IN THE PROVINCE AND TO CREATE AN ANTI-OBSCENITY BOARD

We, members of Cebu Media Free Legal Aid (Cemla) Inc., a duly incorporated non-stock, non-profit organization that serves as the legal adviser of the Cebu Citizens-Press Council (CCPC), discussed the above issue on Nov. 24, 2011 and came up with the following position.

[1] As a backgrounder, the Cebu Provincial Board earlier referred to its committee on laws the so-called Anti-Tabloid Ordinance for study;

[2] The Cebu Media Legal Aid (Cemla), CCPC’s legal adviser, vigorously opposed the original proposal because:

a)    it violated the Constitution since it

—was ambiguous and misinformed, having declared tabloids as contraband and equated tabloids with obscenity;

—constituted prior restraint;

—breached equal protection of laws; and

—transgressed due process of law; which are all gross and   serious flaws that made the proposal constitutionally offensive at its core;

b) it was unnecessary since the Revised Penal Code’s provisions prohibit obscenity and they have met the constitutional standard of validity; and

c) it was dangerous, as it entrusted enforcement, which included seizure of printed materials, including tabloids, to town and city mayors in the province who might have ax to grind against the publications.
[3] CCPC heard the position of Cemla and that of the authors of the ordinance (who sent representatives) during CCPC’s en banc meeting last Sept. 22, 2011 at Harolds Hotel;

[4] The Provincial Board committee on laws was apparently convinced of Cemla’s legal stand and the opposition of other sectors, including Integrated Bar of the Philippines (IBP) Cebu City chapter, Kapisanan ng mga Brodkaster ng Pilipinas (KBP) Cebu, and Malacañang which warned that the proposal would violate the Constitution;

[5] The PB committee on laws totally overhauled the original ordinance and came up with a new version which proposed the prohibition of the “sale, distribution and exhibition of obscene printed or written materials” and the creation of an Anti-Obscenity Board;

[6] CEMLA and CCPC recognize the authority of the provincial board to enact ordinances aimed to promote the general welfare, as long as they don’t infringe on freedoms guaranteed by the Constitution;

[7] While the new version of the ordinance has responded to some objections of Cemla and other organizations, it includes among the powers of the proposed Anti-Obscenity Board (AOB):

—under Section 9(b) the power “to conduct inspection and/or investigation on any and all printed or written materials for sale, distribution, or exhibition to the public, to see if such materials are not violative” of the ordinance; and

—under Section 9(c) the power “to recommend to the provincial governor the confiscation or forfeiture of any and all printed or written materials upon finding the same to be obscene.”

[8] Cemla has found these new provisions to be constitutionally flawed since it amounts to unreasonable search and seizure and offensive as they constitute prior restraint and violate due process of law. Cemla submits that AOB has no authority to inspect and investigate printed materials and neither has the governor the authority to order the seizure and confiscation of the materials they think to be obscene:

—Obscenity, the Supreme Court has always ruled, is an issue that is “proper for judicial determination and should be treated on a case-to-case basis and on the judge’s sound discretion.” It is not for the board or the governor to determine obscenity. They may file a complaint for obscenity but it’s the court that determines and decides.

—Confiscation of property, under the guise of obscenity, is not within the power of the AOB or the governor as it amounts to unreasonable seizure that the Constitution proscribes. Only the court can order the seizure after proper legal steps are taken which are enumerated in Pita vs. Court of Appeals (GR #80806, Oct. 5, 1989); and

—Newspapers and magazines are highly perishable commodity. Inspection, investigation, and confiscation before a judicial determination can be had whether the publication is obscene or not constitutes prior restraint and infringes due process.

From the foregoing premises, Cemla most respectfully recommends to the Cebu Citizens-Press Council to express, strongly and clearly, its opposition to Section 9(b) and (c) of the proposed Provincial Board ordinance as they infringe the constitutional provisions on unreasonable searches and seizure, prior restraint, and due process of law, which would impair freedom of the press and property rights of publications.

CONSIDERING

That Cebu Media Legal Aid (Cemla), as legal adviser of Cebu Citizens-Press Council (CCPC), was asked by the CCPC executive director to study House Bill 2901, which seeks amendments to certain provisions of the Revised Penal Code regarding libels, particularly on the impact of the proposed legislation on press freedom and accountability;

That Cemla submitted its recommendations and CCPC has found them meritorious and, if the proposed amendments to the law on libel are approved, CCPC believes they will enhance press freedom without diminishing the duty of journalists to account for what they publish;

NOW THEREFORE, BE IT RESOLVED, as it is hereby resolved that Cebu Citizens-Press Council (CCPC) support the following proposed amendments of House Bill 2901 —

[1] In Section 1, making “any discussion of public concern or criticism of official conduct of public figures, qualifiedly privileged”:

Privileged communication is expanded with respect to public libel, which means there’s no longer a presumption of malice with respect to any discussion about official conduct or conduct of public figures, unless it is shown by the prosecution “to be false and shown to have been made by the defendant knowing its falsity or with reckless disregard of whether it is false or not.”

While the Supreme Court has already decided that the scope of privileged communication covers any discussion on public conduct and about public figures, even in the absence of express legislation, the proposed specific legal provision is both a reminder to public officials and a warning to journalists.

[2] In Section 2, reducing the prescriptive period for the crime of libel to six (6) months counted from the first publication, airing, or exhibition of the libelous material:

Prescriptive period is one year, which is too long for a complainant to decide on whether to sue.

[3] In Section 5, providing that a defamatory article “passed through the said publisher, editor, or business manager for editing and required the latter’s approval for publication” before the said publisher, editor, or business manager may be held liable:

The amendment will correct the gross anomaly of making a publisher, editor, or business manager liable for a material that didn’t pass through him and he didn’t approve for publication. Malice, or ill-will or spite, cannot logically be attributed to a person who hadn’t even seen the offensive material before publication.

[4] In the same section 5, on the requirement of venue, in case of libel filed against a community journalist, providing that “the venue shall be the Regional Trial Court of the province or city where the principal office of the publication is located…”

The amendment will spare community journalists and publications and broadcast stations, which are financially distressed, to bear the additional burden of defending themselves against complaints filed far outside their principal office of publication. Even on flimsy accusations, community journalists and media organizations are already punished by the heavy cost of the lawsuit alone.

CCPC has also supported a similar proposal that Cemla crafted (introduced as House Bill 77 by then Rep. Raul del Mar in the 13^th Congress; approved as House Bill 431 in the 14^th Congress, with Rep. Raul del Mar as principal author and Reps. Matias Defensor Jr., Eduardo Gullas, Amelita Villarosa, Eufrocino Codilla Sr., Neptali Gonzales, Del De Guzman, Victor Agbayani, Rene Velarde, and Roman Romulo as co-authors; and re-filed as House Bill 371 by Rep. Cutie del Mar in the 15th Congress).

BE IT RESOLVED FURTHER that copies of the resolution be provided to proponent Giorgidi B. Aggabao, the members of the House committee on public information; other House members from Cebu; and the Philippine Press Institute (PPI) and Center for Media Freedom & Responsibility (CMFR).

APPROVED BY THE CEBU CITIZENS-PRESS COUNCIL, this sixth day of December, 2011 at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City.

STATEMENT OF CEBU MEDIA LEGAL AID ON HOUSE BILL 2901, INTRODUCED BY GIORGIDI B. AGGABAO, IN THE FIRST REGULAR SESSION OF THE 15TH CONGRESS, PROPOSING AMENDMENTS TO PROVISIONS ON LIBEL IN THE REVISED PENAL CODE

We, members of Cebu Media Free Legal Aid (Cemla) Inc., a duly incorporated non-stock, non-profit organization that serves as the legal adviser of the Cebu Citizens-Press Council (CCPC), commend the initiative of House Rep. Giorgidi B. Aggabao to enhance and strengthen the provisions on libel in the Revised Penal Code.

[1] Under the Revised Penal Code, malice is an element of libel without which there can be no libel. However, Article 354 of the Revised Penal Code also provides that malice is presumed in every defamatory imputation, except in the following qualified privileged communication:

(a)    A private communication made by one person to another in the performance of any legal, moral or social duty; and

(b)    A fair and true report, made in good faith, without any comments or remarks of any judicial, legislative or other official proceedings which are not confidential in nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

The Supreme Court, however, in several decisions, concluded that the two enumerations under Article 354 as aforecited are not exclusive. The Supreme Court, by manner of judicial legislation, has declared that discussions of any matter of public concern or criticism of official conduct or conduct of public figures, although defamatory, are not presumed to be malicious, unless these were made despite knowledge of their falsity or with reckless disregard of whether they are false or not.

Section 1 of House Bill 2901 seeks to expand the scope of qualified privileged communication with respect to libel by incorporating the abovecited judicial legislation into the provisions of libel in the Revised Penal Code.

[2] Article 90 of the Revised Penal Code provides that libel prescribes in one year.

Section 2 of House Bill 2901 seeks to shorten the prescriptive period for libel to six months counted from the date of the first publication, airing or exhibition of the libelous material, which is certainly beneficial to journalists.

With such reduction in libel’s prescriptive period, complainants would only have six months within which to decide whether or not to sue for libel. Beyond that period, they can no longer sue for libel.

[3] Article 360 of the Revised Penal Code makes editors, publishers or business editors liable for libel to the same extent as if they were the author of the libelous material.

Section 5 of House Bill 2901 seeks to make editors, business managers or publishers liable for libel only if the said libelous material passed through him.

This amendment will correct the anomalous situation of making editors, publishers and business managers liable for libelous materials which they have not even read, more so, approved. The logic behind the amendment is simply that, malice, also known as spite or ill-will or bad motive, could not be attributed to a person who has not even read the alleged offensive material.

[4] The same section of House Bill 2901 further seeks to limit the venue for libel against community journalists to the Regional Trial Court in the place where the principal office of the publication is located.

With such amendment, community journalists, publications and broadcast stations, who are financially distressed, will be spared the additional burden of having to defend themselves in libel cases filed far from their principal place of publication. The sheer act of filing libel cases in distant places, though flimsy and unsubstantiated, can already be taxing on community journalists who have to bear the high costs of litigation.

MEMORANDUM OF UNDERSTANDING: PNP REGIONAL OFFICE 7 AND CEBU MEDIA MANAGERS

RECOGNIZING the importance that the Police can enforce the law in hostage-taking and similar crisis situations without obstruction from the Media and Media can perform its work of covering the news event without unnecessary restriction from Police;

REAFFIRMING the imperative of protecting lives and properties and valuing public safety as paramount in a crisis coverage; and

APPRECIATING the need for the Police to adhere to constitutionally guaranteed rights of access to information and transparency and for Media to exercise its freedom responsibly;

WHEREAS, the Philippine National Police (PNP) through the Police Regional Office (PRO) 7 asked Cebu Media to consider a draft agreement on guidelines regarding coverage of hostage situations, demonstrations and rallies, civil disturbances, police raids and the like which involve operations in a crisis incident;

WHEREAS, the request was raised to the Cebu Citizens-Press Council (CCPC) which suggested that it be taken up not just by police and defense reporters but also by news managers of newspapers and broadcast stations who direct coverage by reporters, photographers and TV camera crews during such crisis incidents;

WHEREAS, the CCPC in its en banc membership meeting last Feb. 25, 2011 at MBF Cebu Press Center, after hearing the region’s top police officers, decided that under CCPC auspices, news managers may agree on a Memorandum of Understanding with PRO 7 after threshing out thorny points and refining the PNP draft;

WHEREAS, on March 23, 2011, a group of representatives from PRO 7 and news managers from Cebu broadcast and print with CCPC officers met at the PNP Media Center and discussed the PNP proposal; and on June 30, 2011, CCPC agreed to discuss further the points raised by some Kapisanan ng mga Brodkaster ng Pilipinas (KBP) members; and since then there have been at least six drafts circulated among the would-be signatories and the final draft reflects the intents of the parties concerned;

AND CONSIDERING that

[1] This Memorandum of Understanding will clarify the position of both Police and Media on the conduct of both sides during coverage of any crisis incident;

[2] The MOU will help avoid unnecessary loss of lives and destruction of properties and reduce the blame-tossing after any fiasco in police operations;

[3] The MOU will encourage both sides to be circumspect in their roles, given the risk involved, without obstructing police work and yet not impeding free flow of information;

NOW THEREFORE, Cebu’s news media managers and police officials DO HEREBY AGREE to adopt this Memorandum of Understanding:

POLICE EXPECTATIONS OF MEDIA

[1] That Media follow basic guidelines on coverage of a crisis situation involving the Police, as defined—

a.    [for print]: in their respective in-house guidelines for news coverage, as supplemented by guidelines from Philippine Press Institute (PPI) and Center for Media Freedom & Responsibility (CMFR);

b.    [for broadcast]: in their respective in-house guidelines for news coverage, supplemented, for KBP members, by the 2007 Broadcast Code of the Philippines as amended on Oct. 20, 2010 and, for non-KBP members, guidelines on crisis coverage issued by press organizations to which they belong.

[2] That the Media observe the guidelines laid down by their respective news outlets and other media organizations, including those on proper identification of journalists through press IDs or other visible insignia; police lines; preserving crime scenes; conducting interviews with suspects, victims or relatives; broadcasting police plans or movements; withholding some information; and other sensitive situations, trusting the Media to seriously reflect on the adverse consequences of a failed police operation;

[3] That Media practitioners consider not just their personal safety during coverage but also the safety of others—especially those of civilians, victims, and law enforcers—who are caught in the crisis;

[4] That the Media, using its best judgment, avoid language that instigates violence, stirs hysteria, or provokes public hatred or contempt of the authorities, which goes beyond reporting and explaining the news; instead, that Media be encouraged to tell its audience why some information is being withheld;

[5] That the Media conduct its coverage of crisis incidents with: (a) full regard for the personal safety of its journalists, (b) respect for the job of law enforcers, taking care not to disrupt or derail it, and (c) appreciation of the danger to lives and properties of people if police work fails.

[6] That the Media, through the news managers and allied media organizations like the Cebu Citizens-Press Council, disseminate the guidelines among their journalists and to the public.

MEDIA EXPECTATIONS OF POLICE

[1] That the Police designate a spokesperson or liaison during a crisis coverage, whose appointment shall be disseminated immediately to the press at the scene and to the various newsrooms directing coverage; such liaison shall relay police advice or request, and give updates on the police operation;

[2] That the Police know and appreciate how the Media works in covering a crisis incident, what journalists must do even as the story is developing, and its obligation to the public; thus, any restrictions are basically on live coverage and are temporary and shall be lifted as soon as danger to police operations and lives and properties of people has passed;

[3] That the Police respect the decision of an individual news organization on how it conducts its news coverage, knowing that ultimately each news outlet and its news managers are accountable to the public and the law;

[4] That the Police recognize Media’s practice of self-regulation and that exercises in cooperation and dialogue with the Police don’t constitute a waiver of Media’s rights.

[5] That the Police disseminate the guidelines under this memorandum among police officers and personnel.

ENFORCEMENT

The agreement carries no penalty or sanction. But both parties are deeply committed to carrying out their respective roles guided by this agreement out of a shared concern for the welfare of the community and the importance of a well-informed citizenry.

SIGNED this 22nd day of September in the year of our Lord 2011, at Harolds Hotel in Lahug, Cebu City, Philippines.

We, members of Cebu Media Legal Aid (Cemla), which was organized under the auspices of Cebu Citizens-Press Council (CCPC), view with alarm the proposed ordinance pending with the Cebu Provincial Board that would ban tabloids in the towns and cities of the Province.

While the proponents are apparently well-intentioned, concerned about protecting community values, and Cemla rejects obscenity, we believe the proposal is unconstitutional, unnecessary, and dangerous.

UNCONSTITUTIONAL

It violates the Constitution because:

[1] It is ambiguous and misinformed.

Under the ordinance, a tabloid is erroneously defined. It classifies any small-sized and obscene paper as a tabloid. It equates tabloids with obscenity. There are tabloids that are not obscene (most community papers in the country are tabloids) just as there are broadsheets that are obscene. Its ambiguity and deceptiveness are fatal flaws in any legislation.

[2] It is prior restraint, a no-no in a democracy.

It is government ban prior to publication and circulation. Categorizing tabloids as contraband, it prohibits the sale, distribution, possession or exhibition of tabloids and similar reading materials with “immoral or indecent” content. Declaring tabloids as illegal or nuisance per se, which considers them subject to seizure, is a “content-based restraint or censorship” on freedom of speech and the press.

Restriction of circulation already constitutes censorship. How much more treating tabloids and similar reading materials as contraband or nuisance per se?

The “over-breadth doctrine” prohibits government from achieving its purpose “by means that sweep unnecessarily broadly…” Legitimate interest of government can be satisfied without going so far as to reach into “protected freedom.” Over-breadth “should be slain in sight whenever it rears its ugly head.”

Furthermore, under the Local Government Code, local governments may regulate but not prohibit activities or trades that are not illegal per se. Banning tabloids would therefore be “ultra vires,” or outside the authority
of the Provincial Board.

[3] It is a breach of the equal protection clause.

It targets tabloids mostly if not solely. While it mentions “similar reading materials” purportedly to cover the rest of the print industry, it omits broadcast (radio and TV), the cinemas, billboards, advertising vehicles, and allied sources of information, and the new media in the internet where obscenity may also be found.

The ordinance impresses us that the sole source of obscenity are only reading materials, principally the tabloids. Equal protection clause requires that laws are “implemented and applied equally and uniformly on all persons under similar circumstances…”

Can material in a tabloid be more gross than similar material in, say, internet or broadcast?

[4] It transgresses due process of law.

The ordinance allows, without prior hearing and lawful court order, confiscation and detention of tabloids and printed materials by the local government unit that finds them obscene.

By considering the reading materials obscene and contraband, government impedes and destroys legitimate business of publications, a property right that can’t be taken away without due process of law.

UNNECESSARY

[1] There are existing laws in the Revised Penal Code that prohibit obscenity, which laws have met the constitutional standard of validity.

A local government ordinance is needless unless it spells out the “aggregate sense of the community” on what is obscene, which is not necessarily what bureaucrats say is obscene.

But what is obscene? What does the community collectively see as obscene? Surely, not just how a group of functionaries defines it.

[2] The Supreme Court test before government can validly interfere with constitutionally guaranteed right of the press is whether “a clear and present danger” of the evil feared by the ordinance exists. “There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger.”

The ordinance merely assumes that because some reading materials contain a feature or features the proponents deem “sexually provocative,” the morals of the populace are already endangered.

DANGEROUS

The ordinance may be open to abuse as determination of what is obscene is left to town and city mayors who may have grudges against publications that publish adverse news or opinion.

Under both U.S. and Philippine jurisprudence, there is no clear and specific definition of obscenity. Our Supreme Court has consistently ruled that obscenity is determined by the courts, not just on the say-so of public officials or functionaries of boards or commissions.

Thus, the grave danger posed by the enforcement of the proposed ordinance.

(The volunteer lawyers of Cebu Media Legal Aid are Piedad “Bingo” Gonzalez, Fritz Quiñanola, Pedro Rosito, Elias Espinoza, Francisco Malilong Jr., Maria Dee Seares-Del Rosario, Pachico Seares, Rosemarie Versoza, Eddie Barrita, Lucille Karen Isberto, Ruphil Bañoc and Ian Manticajon.)

[This resolution was submitted by Cebu Media Legal Aid (Cemla), a loose group of lawyer volunteers, to the Cebu Citizens-Press Council (CCPC) at its quarterly en banc membership meeting at the MBF Cebu Press Center on June 30, 2011. The CCPC approved the policy.]

CONSIDERING that

[] Two local legislatures, the Cebu Provincial Board and the Cebu City Council, in separate incidents wanted the presence of journalists in their sessions to explain what they reported in their newspapers;

[] For a news story, reporter Rene Borromeo wrote in The Freeman of July 7, 2008 and for an opinion column Efren Lonzon wrote in Sun.Star Superbalita [Cebu] of May 18, 2011, the two legislative bodies separately invited the two journalists;

[] While they were both invitations, in the more recent incident, a city councilor in a letter to a newspaper made the threat, thinly veiled, to subpoena columnist Lonzon, citing Section 5, Article XV of the Rules of Procedure of the City Council, which in effect says that any person summoned to appear before it and refuses without justifiable cause may be cited in contempt;

[] In the two incidents, the journalists refused the invitations but explained their absence; fortunately, the two legislatures didn’t push the attendance of the journalists: the Provincial Board and, more recently, the City Council considered the matter closed;

[] The presence of such a provision in the house rules, at least in the case of the City Council, may spur bolder moves in the future, using their perceived power to drag journalists before legislators by issuing subpoenas instead of invitations; and

CONSIDERING FURTHER that

[] Local legislatures have not been granted by the Local Government Code the power to issue compulsory process and the power to punish for contempt and any such subpoena or summons would be “ultra vires” and therefore null and void (as decided by the Supreme Court in Arturo Umbac vs. Sangguniang Panglungsod of Dumaguete [GR #72492 of Nov. 5, 1987], which Atty. Fritz Quiñanola cited in a published letter reacting to the threat of the city councilor cited earlier;

[] Journalists are accountable for what they write or broadcast to their publishers and editors or station owners and news directors and to their public, not to public officials who may be aggrieved by the publication;

[] There are remedies available for any person offended by a publication or broadcast: right of reply in the opinion or news section or segment, letters to the management or the press council (depending upon the nature of the complaint), or even lawsuits, but they don’t include summoning a journalist before the local legislators, where an inquiry may quickly turn into an inquisition;

[] Such a forum may be used by the local legislature or any other government office or agency to hit back at, or harass, journalists and their news organizations and thus would create a climate of fear and intimidation;

NOW THEREFORE,

The Cebu Citizens-Press Council hereby declares this as position of the Council:

It encourages journalists and their news organizations to reject any subpoena or summons from local legislatures and to be cautious about invitations to explain before them news or opinion published in print or broadcast, without, however, disregarding accountability under established procedures and practices of the industry.

ENACTED this 30th day of June, 2011, at the quarterly en banc meeting of the Cebu Citizens-Press Council at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City, Philippines.

[Cemla volunteers, mostly from media ranks, serve as legal arm of CCPC and help provide legal assistance to journalists. The members include Bingo Gonzalez, Fritz Quiñanola, Pedro Rosito, Elias Espinoza, Francisco Malilong Jr., Maria Dee Del Rosario, Rosemarie Versoza, Eddie Barrita, Lucille Karen Isberto, Ruphil Bañoc and Ian Manticajon.]