Cebu Citizens-Press Council

Being accountable comes with being free

A judge’s view on decriminalizing libel

May 4th, 2012 · No Comments

By Court of Appeals Associate Justice Gabriel T. Ingles

(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 CarlosCebu 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).


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).


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


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)

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
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.

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.

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