Started in the 2010 elections by the Cebu Citizens-Press Council, the Philippine National Police-Police Regional Office (PRO) 7, the Commission on Elections (Comelec) 7, and the poll watchdog Cebu-Citizens’ Involvement and Maturation in People’s Empowerment and Liberation (C-Cimpel), the project now counts the Dilaab Foundation Inc. among its convenors.

The project involves a media center to provide a centralized site for the flow of information, dialogues between the media and the Comelec and police on election coverage concerns, and voters’ literacy programs.

The Elections Media Center (EMC) is at the PRO 7 compound on Osmeña Blvd., Cebu City. It will be the site for joint press conferences held by the convenors particularly on the crucial days of May 12-14, which includes the day of the elections.

Smart Communications will provide the EMC with wireless Internet connectivity, while the Philippine Long Distance Telephone Co. will provide two telephone landlines, three TV sets and four laptops for use by the media, as well as backup wireless connectivity for those three days. The Visayan Electric Co. will provide the snacks at the center.

The first of the project’s dialogues immediately followed the project launch at the MBF Cebu Press Center. It featured Comelec 7 Director Temie Lambino, who addressed questions ranging from the rule on interviews and advertisements, to the grant of the right of reply, journalist security, the procedure for the filing of complaints and the Comelec’s capability to enforce the provisions of the Fair Election Act.

The dialogue with the police and the discussion on the recommendations of C-Cimpel on voters’ education and of Dilaab on voters’ values will take place in April.

A NEW bill that seeks to help citizens meet the challenges of navigating cyberspace could be a double-edged sword for journalists.

During the Cebu Citizens-Press Council’s (CCPC) 29th quarterly meeting yesterday, Cebu Media Legal Aid (Cemla) president Elias Espinoza said Senate Bill (SB) 3327, or “The Magna Carta for Philippine Internet Freedom,” is favorable to journalists because unlike the Revised Penal Code of the Philippines (RPC), it does not provide for imprisonment for Internet libel.

Under Sen. Miriam Defensor-Santiago’s bill filed last Nov. 12, only civil liability will arise.

Under SB 3327, malice is also not presumed, said Espinoza, unlike in the RPC, where malice is presumed with every defamatory imputation “if no good intention and justifiable motive” is shown.

But during discussions at the MBF Cebu Press Center, The Freeman editor John Rey Saavedra raised the prospect of a reporter being prosecuted under both the RPC and the Magna Carta if his article printed in the newspaper also appeared on the Internet.

Sun.Star Cebu columnist and Cemla vice chairman Frank Malilong Jr. warned that in such cases, reporters might be charged with two separate crimes.

Asked what bloggers had to say about this, Ruben Licera Jr., president of the Cebu Bloggers Society Inc., said Cebu bloggers were “100 percent against the implementation of the anti-cybercrime law.”

TRO

The Cybercrime Prevention Act of 2012, passed in September, provides for a penalty one degree higher for Internet libel than that provided for other forms of libel.

In October, the Supreme Court issued a 120-day temporary restraining order on its implementation after the law’s constitutionality was challenged.

Licera said there are currently no rules governing social media, but bloggers should be “held accountable for what they say.”

He said bloggers should not claim to be journalists because journalists receive training in reporting that bloggers do not get.

Innopub Media co-founder and Sun.Star Cebu business editor Max Limpag said many social media users don’t go out to be journalists since they report on events only to their clique.

“But when they take on the mantle of reporting, they must also take on the responsibility of journalism,” he said.

Commenting on bloggers who also cover events, Licera said he lamented the bad reputation some bloggers had received as “loot baggers,” or people who attend events so they can receive the loot bags handed out at such events.

He said this practice of bloggers was also enabled by some public relations practitioners.

Licera said no bloggers’ code of ethics is written, but bloggers are encouraged to “be honest and fair, minimize harm, and be accountable.”

Motivation

While journalists are accountable to their media outlets and audience, however, the system of accountability is not clear for bloggers.

Evanjohnn Mendoza, social media manager of the Cebu Provincial Government, said even without clear rules for social media users, erring bloggers could be chastised by the community of bloggers who can simply counter with their own online comments any wrong information provided by erring bloggers.

But Cebu Daily News publisher Eileen Mangubat said it would be better for bloggers to know their motivation for writing.

“If it’s not clear to you, then you’ll have a problem on who you’re accountable to,” she said.

Online responsibility

Licera acknowledged the many issues social media has brought, including cyber bullying and invasion of privacy. Yet, he was uncomfortable with bloggers being regulated.

He urged social media users to be responsible online, saying all tweets in the microblogging site Twitter since 2006 have been “stored in the Library of Congress.”

He said his group encourages its members to practice social responsibility by blogging about their communities.

In the 2013 election, Cebu bloggers will send photos and information from certain sites. He said they will test the system during the Sinulog festivities in January.

The Cebu Citizens-Press Council (CCPC) will inform Sen. Gringo Honasan, chairman of the Senate committee on public information and mass media, that CCPC has asked for the immediate passage of two bills: Freedom of Information Act and the amendment of the Sotto Law.

Honasan will hold a consultation with a group of print and broadcast journalists at noon in Cebu City on Nov. 30, 2012. The two bills will be discussed.

Pachico Seares, CCPC executive director, said CCPC, in its 28th en banc quarterly meeting last Sept. 20, 2012, adopted a resolution asking President Aquino and Congress to enact the long-delayed Freedom of Information (FOI) Act.

Last Tuesday, the House committee on public information passed the FOI bill without the right of reply (ROR) provision. An opposition group in the House, however, threatened to block the bill if the ROR would not be included.

Seares said the ROR bill is an entirely separate issue involving constitutional rights that shouldn’t be lumped with the FOI bill as a trade-off.

On the feared abuse of rights by journalists, he said other laws are already in place to curb any media excess.

Sotto Law
As to the Sotto Law, Seares said CCPC took its position as early as 2006 in a resolution that supported House Bill 2960, filed by then congressman Raul del Mar of Cebu City north.

The House bill would extend the protection of the Sotto Law, under which journalists cannot be compelled to reveal their sources, to broadcast or electronic journalists and Internet writers.

Seares said the amendment would correct an anomaly of several decades, the exclusion of broadcasters from the privilege.

Five bills currently pending in the Senate propose the amendment of the Sotto Law.

“It’s long overdue. Court of Appeals Justice Gabriel Ingles was still a Regional Trial Court judge when he pointed out the discrepancy at a 2003 Cebu Press Freedom Week forum,” Seares said.

Considering that

[1] The Cybercrime Prevention Act of 2012 signed into law by President Benigno Aquino III on Sept. 12, 2012 penalizes online libel;

[2] Republic Act 10175 merely refers to Art. 355 of the Revised Penal Code and applies it to acts “committed through a computer system or any other similar means which may be devised in the future” without clearly defining the crime, a serious omission since Internet libel, given the technology’s peculiarities, is different from other kinds of libel;

[3] The new law would punish anyone using the Internet, without specifying whether a person who merely tweets or otherwise comments on an “offensive” material is liable, and is thus ambiguous;

[4] The said law inexplicably also increases the penalty for computer-related libel, as aptly noted by the Human Rights Watch based in New York: the minimum raised 12 times, from six months to six years; the maximum doubled from six years to 12 years. It is oppressive and discriminatory as it makes Internet libel a bigger crime than print or broadcast libel. A complainant would use the law, instead of the Revised Penal Code, to go after a journalist whose work is also published online;

[5] It runs counter to the growing consensus in Congress, as evidenced by various bills filed for the purpose, and the increasing clamor of the press and other sectors for the Philippines to honor the guarantee  of free expression in the Constitution and human rights treaties signed by the Government;

[6] Republic Act 10175 also empowers the Department of Justice, on its own and without court process, to order the shutdown of any website it finds libelous, which will have the same effect as padlocking a newspaper plant or broadcast station.

The Internet, as a media platform or vehicle, is equally protected under the constitutional guarantee of free speech and free press.

Considering further that

[7] CCPC in a resolution adopted during its 10th quarterly en banc meeting on March 24, 2008 urged Congress to retain libel as a crime but remove the jail sentence as penalty, which, the Council believes, would temper the law’s harshness without losing accountability;

[8] The Council agrees with the need to curb excesses in the social media, as it is regulated in mainstream media, but the law on Internet libel must be so crafted as to consider unique attributes of the platform or vehicle, not only to balance right to free speech against right to protect one’s integrity and privacy but also to assure enforcement in the new media;

IN SUM

[9] The provision on Internet libel under the new law violates the constitutional guarantee of free speech and free press, due process of law, and equal protection of the law, aside from being unclear about innocent participants in the conversation on the web.

NOW THEREFORE be it RESOLVED, as it is hereby resolved by members of the Cebu Citizens-Press Council that:

[1] It strongly and earnestly ask the President and Congress to review the Cybercrime Act of 2012 and amend the objectionable provisions in it, especially those on Internet libel, with regard to definition, penalty, and the power of DOJ to shut down a website;

[2] It suggest that Congress hold more public hearings, if necessary, for the disputed portions of the law to be discussed with affected stakeholders, including journalists, bloggers and other Internet users and media organizations and technical groups that have been studying the Internet technology and its impact on society and government;

[3] Copies of this resolution be provided to legislators and media organizations concerned and publicized in regular media and the CCPC website.

APPROVED THIS 28th day, of September 2012, after it was circulated among members of the Council in Cebu City, Philippines.

Certified correct:

PACHICO A. SEARES
Executive Director

Considering that

On Feb. 3, 2012, the Palace submitted to the House of Representatives its version of the Freedom of Information Act of 2012, which it said addresses stakeholders’ desire “to have more transparency and more access to information” but balances the public’s right to know with government’s “right to legitimate secrets”;

Since then, Rep. Erin Tañada in the House and Sen. Gregorio Honasan in the Senate separately filed a consolidated version of FOI of 2012;

In submitting the Palace version, proponents made it clear that the FOI Act of 2012 is an integral component of the Aquino Good Governance and Anti-Corruption Plan of 2010-2016 and it wants “every other administration to work under the same standard of transparency and accountability:”

Since last February, however, there have been mixed signals from President Aquino and from his allies regarding their real intent about the bill but with a common wariness: “pseudo” journalists might use information as additional fodder for their attacks against public officials;

That and other sources of apprehension can be threshed out at the House or Senate committees with the bill authors and representatives of the media;

If the fear about “hawsiao” press could frustrate a right guaranteed by the Constitution and an election promise and a framework of action by the Aquino government, that wouldn’t speak well of the leadership’s resolve to succeed in its goals and the press’s willingness to police its ranks;

And considering further that

The 15th Congress has only three months before yearend, with the 2013 elections to pre-occupy the legislators during the rest of term’s third year;

NOW THEREFORE, in an en banc meeting of members of the Cebu Citizens-Press Council (CCPC), it is hereby resolved that the Council:

1. Urgently request leaders and members of the House and the Senate to approve the Freedom of Information Act of 2012 before the 15th Congress closes; and if they cannot, the Council demands that legislators explain to the public why they refuse to do so.

2. Ask the honorable legislators to pass a bill that serves the public’s right to know without prejudicing public interest, as distinguished from the private interest of government officials, and without using the bill as vehicle for the right-to-reply bill, which requires full and separate discussion.

3. Provide copies of this resolution to President Benigno Simeon Aquino III, Congress and national media organizations that have worked for the passage of the bill.

APPROVED this 20th day of September, 2012, during the celebration of Cebu Press Freedom Week at Marco Polo Plaza Cebu.

Considering

[] There is a need for a database that comprises the law and jurisprudence affecting media and journalists and a record of incidents regarding violence, abuse, or harassment of journalists and their co-workers, with focus and emphasis on the Cebu experience;

[] Such a database will be useful to practitioners of both law and media, not only for purposes of litigation but also for research on news stories and in defending against proposed legislation and acts of government that may impinge on press freedom;

[] The storage of information will help media practitioners and future journalists in avoiding libel, contempt, violence and other pitfalls of media work;

[] It will also be beneficial to any study of the growth of Cebu journalism and journalism practices that show efforts at sharpening the journalists’ sense of accountability to their public and the rest of society.

THEREFORE, the Cebu Citizens-Press Council (CCPC) and Cebu Media Legal Aid (Cemla) initiate, in partnership with the two chapters of the Integrated Bar of the Philippines (IBP), Cebu City Chapter and Cebu Chapter, the project called:

CEBU JOURNLAW

* Journalism Law, Jurisprudence
* Cases of Assault on Media
——————————
Cebu Citizens-Press Council
(CCPC) and Cebu Media Legal Aid
(Cemla) with IBP Cebu City and
IBP Cebu Chapters
——————————

UNDER THIS MEMORANDUM, the parties hereby agree that:

1. CCPC shall provide the CCPC website (cebucitizenspresscouncil.org) as storehouse for the website, managing CEBUJOURNLAW, handling the design and posting of content and keeping responsibility for control and maintenance of the database;

2. Cemla shall oversee selection and the tasks of summarizing, and converting into digital form of the content on journalism law and jurisprudence; and for the purpose shall agree with IBP Cebu City Chapter and IBP Cebu Chapter on operation procedures and work of volunteers or hired services they may tap for the purpose;

3. The parties shall periodically assess progress on startup and run of the project and agree on changes that may be needed.

SIGNED THIS 28th day of June, 2012, during the 27th en banc meeting of the Cebu Citizens-Press Council at the MBF Cebu Press Center in Sudlon, Lahug, Cebu City, Philippines.

(The memorandum of agreement was signed by Sabino R. Dapat, vice president,  Cebu Citizens-Press Council; Atty. Elias L. Espinoza, president, Cebu Media Legal Aid; Atty. Earl M. Bonachita, president, Integrated Bar of the Philippines-Cebu City Chapter; and Atty. Ferdinand A. Pepito, president, Integrated Bar of the Philippines-Cebu Chapter. Signing as witnesses were Elias O. Baquero, president, Cebu Federation of Beat Journalists; and Atty. Ruphil F. Bañoc, chairman, Kapisanan ng mga Brodkaster ng Pilipinas-Cebu Chapter.)

“IS the Philippines considered free as far as press freedom is concerned?” Pachico Seares, executive director of the Cebu Citizens-Press Council (CCPC), asked a forum celebrating the 2012 World Press Freedom Day.

The audience was silent. With the Maguindanao massacre in 2009 making the Philippines the third worst place to live for journalists in 2011, people apparently find it difficult to say if the country is free.

Various media organizations and groups held the forum yesterday entitled “Decriminalizing Libel.”

The forum was held at the Theodore Buttenbruch Hall, USC-Main, Cebu City by the CCPC, in partnership with the United States Embassy and The Peace and Conflict Journalism Network.

According to a study, the Philippines is “partly free” as far as press freedom is concerned.

During the forum, three media practitioners shared their experiences with being charged with libel.

“It’s part of the job description of a publisher and an editor-in-chief,” said Eileen Mangubat, publisher of Cebu Daily News.

Three years ago, Mangubat and three of her staff faced a libel suit.

Karlon Rama, former Sun.Star Cebu reporter, said it is part of the hazards of the job. He was charged with a libel case twice when he was still with the media.

Choy Torralba, dyRF radio program host, was charged with 23 libel cases, 18 of which reached the Supreme Court.

“Nituo man gud ko sa una nga pag wa pa ka gikiha og libelo (I used to think that if you don’t have a libel case), you haven’t arrived yet,” he said.

He said he has learned that one should be extra careful with what one says.

Through the years, several bills in both Houses of Congress were filed to decriminalize libel.

Upon consultation with the Cebu media practitioners and the Cebu Media Legal Aid, CCPC took its stand in a resolution that supports the proposal to remove the penalty of imprisonment in libel, but still consider it as a public crime.

Lead discussant Gabriel T. Ingles, court of Appeals associate justice, talked about the benefits and pitfalls of decriminalizing libel.

“Make it more difficult to prove malice so that it would be more difficult to get a conviction,” Ingles said.

He proposed that Justice Vicente Mendoza’s compromise formula on making a distinction between political and private libel be adopted.

Representatives of different media groups also discussed some issues on the proposal to decriminalize libel, including CCPC’s resolution presented by Rose Versoza, Cebu Media Legal Aid treasurer.

The resolution supports proposals to remove the jail term as main or subsidiary penalty for the crime of libel.

Also discussed in the forum was the article “Attacking Press Freedom while ‘Enhancing’ It” by the Freedom Fund for Filipino Journalists (FFFJ).

The article said FFFJ was founded to address the killing of journalists and to protect them from threats. Objections to any right of reply (ROR) law were repeatedly emphasized.

“The right of reply is in the first place already part of the professional and ethical responsibilities of the press. It is also dangerous since it would infringe on a freedom vital to the health of a democracy,” the FFFJ said in the article.

The talk, attended by the different media practitioners from different media entities and students, was concluded with an open forum.

PPI members also conducted various programs yesterday in Manila, Davao, Bulacan, Gen. Santos, Baguio, and Cagayan de Oro cities to celebrate World Press Freedom Day. Arvee F. Saren & Roxanne Cabriana, CNU Comm Interns/with Jewel Villaflores & Pauline Mae Abaiz, STC Mass Com interns

(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.

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.