As I See It
The many pitfalls of libel
MANILA, Philippines – This will not sit well with the press in general, but I do not think decriminalizing libel is a good idea. With the recent conviction of Daily Tribune publisher-editor in chief Ninez Cacho-Olivares for libel, there is again a clamor from press groups to decriminalize libel and some members of Congress trying to curry favor with journalists, especially with elections coming up, may do just that.
Chief Justice Reynato Puno has already issued a circular telling judges that in imposing penalties on those convicted of libel, preference should be for the imposition of a fine rather than imprisonment. (Nevertheless, Judge Winlove M. Dumayas of the Makati RTC sentenced Olivares to a prison term of from six months to two years, 10 months and 40 days and to pay a fine of P4,000 and to pay the complainants the sum of P33,732 as actual damages and P5 million in moral damages. She said the libel on complainants “was calculated and intentional” and that she did not “verify her false claims.” “A mere fine would depreciate the seriousness of the offense,” she said.)
Puno’s good intention is appreciated but I think he should look at some of the scurrilous items appearing in some tabloids (I will show him some samples if he wants) to see the situation more clearly. The broadsheets do not generally libel people intentionally but the tabloids, especially those circulated in the Bureau of Customs, are something else. Some of their writers, editors and publishers deserve to be clamped in jail and the key thrown away. You will cringe at what they are writing and ask: “Can they really do this?”
Unfortunately, we cannot have one law for tabloids and another for broadsheets. And I think the Puno circular and the decriminalization movement have emboldened some tabloid denizens (after all, the fine ranges only from P200 to P6,000; that hardly discourages libel) so that they are now running amuck. We cannot have that behavior in a decent society.
I feel sorry for Ninez and I think it should not happen to a fighting journalist. I read Judge Dumayas’ decision in full as well as a backgrounder on the whole case and I will discuss later why the judge convicted her. First I would like to warn fellow journalists of the pitfalls of libel. Many of them don’t understand the libel law. Some tabloids list “legal counsels” in their editorial boxes, but even these lawyers don’t fully understand the details of the libel law.
There are four elements of libel:
1. the imputation of a discreditable act or condition on a person;
2. publication of the imputation;
3. identity of the person defamed; and
4. existence of malice.
Existence of the first three elements is present when a complaint for libel is filed.
It is only malice that has to be proven, and here is where many journalists make a mistake.
There are two types of malice: malice in law or presumed malice, and malice in fact or actual malice. Malice is presumed the moment you defame anybody. Your defense to that is to prove that you have a good reason for publishing the imputation, such as it is for the public good. Failing that, you are as good as convicted.
But even after proving justifiable reason for the story, the complainant can still prove actual malice, meaning you bear ill-will against him or are motivated by revenge, which are both hard to prove. And here is where most journalists have a false sense of security. I don’t know him or I don’t have any ill will against him, how can I have malice? They say. Wrong.
Failure to check on the truth of an allegation is interpreted by the courts as malice. And this is a common mistake of journalists in a hurry. Malice is present when it is shown that the author of the libelous item made such remarks with knowledge that it was false or with reckless disregard of whether it was false or not. Failure to check on the veracity of an allegation is reckless disregard and is interpreted as malice.
Another common error is that public officials and public figures are fair game; the public has the right to know what they are doing. Public officials are those who are elected or appointed to public positions; public figures are those who voluntarily thrust themselves into the public eye, such as movie stars, entertainers, society matrons, prominent businessmen, artists, athletes, etc. But it does not mean that anybody who attracts public attention is a public figure if he did not voluntarily thrust himself into the limelight. He is a private individual who has private rights and it is very risky to defame him.
Still another error is “fair comment.” Many believe that any column is fair comment.
But the Supreme Court laid down the guidelines for a fair comment on matters of public interest:
“Comment which is true or which, if false, expresses the real opinion of the author, such opinion having been formed with a reasonable degree of care and on reasonable grounds.” An opinion must be based on fact. A columnist cannot make a false accusation and say “that is my opinion.”
This is where the judge condemned Ninez. Dumayas said the evidence shows that the allegations in Ninez’s article are not true and that she “did not exercise reasonable degree of care or good faith efforts to arrive at the truth before writing and publishing the article.” Also “the accused did not present evidence showing that she verified the truth of the contents of the article.” She “even admitted that she did not make any effort to ask private complainants to verify her information.”
Another of her defenses is that F. Arthur L. Villaraza of the CVC law office is a “public figure” and therefore cannot sue. He is not, the judge said. “The fact that private individuals are involved in events that attract media attention is not proof that they are public figures since they may have been dragged unwillingly into the controversy.”
NUJP SAYS:
‘Olivares conviction stresses need to
decriminalize libel’
MANILA, Philippines — The conviction of Daily Tribune publisher Ninez Cacho-Olivares for libel “highlights the urgency of decriminalizing and improving our antiquated libel law,” a media organization said Thursday.
The National Union of Journalists of the Philippines (NUJP), in a statement signed by chairman Jose Torres Jr. and secretary general Rowena Paraan, reiterated its calls for Congress to “match its declarations of respect for press freedom and freedom of expression with action by working on the speedy passage of pending bills decriminalizing libel.”
Olivares was found guilty by Makati Regional Trial Court Branch 59 Judge Winlove Dumayas of charges filed by the Villaraza Cruz Marcelo & Angcanco Law Firm (also known as The Firm).
The charges stemmed from an article she wrote accusing the law firm of influence peddling in the Ninoy Aquino International Airport Terminal 3 (NAIA3) deal.
Following the verdict, the law firm said it would pursue 47 other libel suits it had filed against the publisher.
While not commenting on the case itself, the NUJP said, the jail term imposed by Dumayas “goes against the grain of the Supreme Court’s earlier suggestion for judges to prefer fines over prison terms for libel.”
It also lamented how “the antiquated libel law allows” the law firm to pursue its plan to press the 47 other cases against Olivares.
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Decriminalizing libel may increase media killings |
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Written by Carmela Fonbuena |
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Wednesday, 06 August 2008 |
| Media organizations should be careful in calling for the decriminalization of libel, a lawyer of the Kapisanan ng mga Brodkaster ng Pilipinas (KBP) today warned in a hearing of the House committee on revision of laws. The committee is studying pending bills proposing making libel a purely civil offense.
“The initial position of the KBP was to support the calls for decriminalization. However, we received reactions from our own practitioners—broadcast journalists—pointing out that decriminalization would potentially increase violence against journalists because those who have been victimized by libel would have no recourse or would have limited recourse,” KBP general counsel Rudolph Jularbal said. The general call among journalists is to call for the decriminalization of libel. The most notorious of recent libel cases against journalists is the string of libel suits filed by First Gentleman Jose Miguel Arroyo against 46 or so journalists. “While Mr. Arroyo has withdrawn the charges, the message sent is clear,” said Sonny Fernandez of the National Union of Journalists of the Philippines. “In this modern day and age, journalists spending time in prison for their work is anathema to a democracy,” said Newsbreak and abs-cbnNEWS.com editor in chief Marites Danguilan Vitug. “It’s like book burning.” “Journalists report on public figures, politicians, and government institutions. Our work is central to a democracy, where accurate and honest writing, investigative reporting, and critical opinion grounded on sound analysis help strengthen institutions rather than diminish them,” Vitug added. In line with these calls, at least four bills that remove the punishment of imprisonment for libel cases are pending in the House of Representatives. Counterpart bills are also pending in the Senate. Middle groundAccording to Jularbal, the KBP has arrived at a “middle ground.” He said their proposal is to distinguish between the complainants of libel. “We support a bill that would decriminalize libel insofar as public officials and matters of public interest are concerned. But if the subjects of a libel are private persons… when it is purely a private matter, criminal libel should be retained,” he said. Isabela Rep. Giorgidi Aggabao was supportive of the proposal. We draw a line between political libel and private libel,” he said. Gabriela Rep. Luzviminda Ilagan was also supportive. “It will be a giant step towards strengthening of the democratic process in our land when freedom of expression is enshrined,” she said. However, not all congressmen may share Aggabao and Ilagan’s point of view. The bills decriminalizing libel have been pending in the House and the Senate for several Congresses now. Many of bills were just refilled from previous Congresses. While the media have complaints about the way some public officials have abused the libel law, Cavite Rep. Elpidio Barzaga said the public officials themselves are having problems with the media. “We have to be honest. My perception is that most of the legislators and government officials do not want to decriminalize libel because it is always the public officials who are the subject of news,” Barzaga said. “Being a government official for a number of years, I’ve been always hearing comments from fellow public officials that the press can make or unmake a public officials,” Barzaga added. Nevertheless, Barzaga said there’s still a possibility that a law decriminalizing libel can be passed. “Our congressmen know the situation and importance of press freedom,” he told reporters after the hearing. Media efforts to police ranksJularbal and Vitug acknowledged media’s faults. But they both said imprisonment is too harsh a punishment for journalists. “There are efforts of individual organizations to make staff members observe ethical standards. Some news organizations do investigate and have suspended their staff,” Vitug said. “At the same time, public officials and those in government should get to know how media organizations work so that they become more tolerant of honest reporting and dissenting opinion,” Vitug said. (abs-cbnNEWS.com/Newsbreak) |
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Last Updated ( Wednesday, 06 August 2008 ) |
Lifting jail terms in libel may
boomerang on media
NOT all media workers want to scrap criminal penalties of libel, a lawyer said yesterday.
Some broadcasters actually fear there would be more killings of journalists if jail terms are no longer part of the punishment for libel. This is because aggrieved parties may be frustrated and take the law into their own hands.
Lawyer Rudolph Steve Jularbal of the Kapisanan ng mga Brodkaster ng Pilipinas (KBP) Manila made this observation yesterday in a seminar of lawyers.
He was a speaker in a seminar for Mandatory Continuing Legal Education (MCLE) at the University of Cebu (UC) Banilad.
“Posibling patayin na lang nila (journalist) because the offended parties feel there is no more justice for them,” said Jularbal.
Jularbal heads the Regulatory Compliance Group of the Manila Broadcasting Company and Affiliates.
He said many officials of media organizations in Manila in a recent meeting expressed that the decriminalization of libel may increase the number of murder cases of journalists.
Last January, the National Union of Journalists in the Philippines (NUJP) supported Chief Justice Reynato Puno’s circular calling for the decriminalization of libel.
In the circular, Puno advised judges to apply fines instead of jail terms for media men convicted of libel.
The NUJP and other media groups continue to lobby with Congress ro amend the law on libel to remove the penalty of imprisonment.
The bill is pending in Congress along with bill on the the “Right to Reply” and “Access to Information.
Jularbal said that during a recent Senate committee hearing, representative of different media organizations declared they were not in favor for the “Right to Reply” bil which would penalize print and broadcast media if they refuse to publish or broadcast the reply of the subject of derogatory reports or comments.
Sen. Aquilino Pimentel co-authored the bill decriminalizing libel with Sen. Francis Escudero.
Other media groups who are against the Right to Reply bill pending at the House and Senate include the Philippine Press Institute, the National Union of Journalists in the Philippines and the Cebu Citizens Press Council (CCPC).
The CCPC passed a resolution opposing the bill. The CCPC said that the core of press freedom is the right of journalists to choose what to publish and what not to publish, restrained only by laws against libel, obscenity, sedition, and violations of national security, and industry rules and standards.
The CCPC also said that journalists already practice the right to reply as part of individual and corporate standards and the news outlets’ accountability to their public and audience.
The resolution said that whatever lapses of journalists under the right to reply are being corrected by the press’ own mechanisms, such as in-house codes of standards and ethics and citizens-press organizations.
Meanwhile, Jularbal also said some media outfit still continue to violate the rights of children by giving “indirect information” that identifies minors in crime situations by giving the names of parents or the place of a child’s residence. Jularbal said journalists could be sued for this.
He also reminded guidelines of the Department of Justice (DOJ) limit how the media should cover children who become crime victims.
No video footage or photograph of the child should be released.
He said a common violation of the media is to show the image of the parents with the child’s photo blurred.
The child could still be identified because of the parents’ photo.
Jularbal told lawyers they could also petition the court to ban media from live coverage of a sensationalized case.
He cited the ruling of the Supreme Court on the freedom of the press and the right of the accused in the plunder case of former President Joseph Estrada where media workers were only allowed to have live coverage during the promulgation of the decision of the case.
SENATE OF THE PHILIPPINES
Press Release
January 29, 2008
KIKO PUSHES FOR AMENDMENTS ON THE EXISTING LIBEL LAW
Senate Majority Leader and Independent senator Kiko Pangilinan is willing to spearhead the move to amend the existing libel law following Supreme Court Chief Justice Reynato Puno’s suggestion that judges should prefer imposing a fine rather than imprisonment on erring journalists. “Having been a former mediaman myself, I understand the plight of practitioners. Libel suits are oftentimes used to harass and intimidate the media. In effect, there is an indirect but apparent method of curtailing press freedom through unwarranted libel suits,” Kiko said.
Chief Justice Puno earlier issued a memorandum circular to judges urging them to mete out fine as penalty for media people found guilty of libel, instead of jail time.”The existing libel law has been in the statute books for almost 80 years, and remains essentially unchanged. The current libel law is a vestige of our colonial past. We should amend the said law to be compatible with constitutionally guaranteed rights to free speech, of expression, and of the press,” Kiko furthers. Kiko however clarifies that this does not mean that the press should be without limitations.”The rights to free speech and of the press are attended with an obligation on the part of the journalists to report accurately, fairly and with factual basis,” The media on the other hand must strengthen their mechanisms for self regulation so that parties who feel aggrieved due to abuses or irresponsible and unprofessional conduct by the media can have speedy redress’ Kiko ended.
Press Release
June 6, 2008
KIKO URGES FELLOW LAWMAKERS TO RETHINK OUR ANTIQUATED LIBEL LAW
The recent libel conviction of a veteran journalist is another instance for lawmakers to rethink our antiquated libel law, Senate Majority Leader Kiko Pangilinan today said.
There was a judicial determination that journalist Ninez Cacho-Olivarez committed. Without going into the merits and presuming regularity, the court merely based its findings on the existing libel law. But said law has remained essentially unamended for almost 80 years. Panahon na sigurong pag-aralan ang posibleng pag-amyenda ng nasabing batas,’ Kiko said.
Kiko reiterates the possibility of decriminalizing libel, to remedy the doctrinal ‘chilling effect’ on the media whenever journalists critical to the government are arrested for or convicted of libel.
“Our current libel law is a vestige of our colonial past. Being a former mediaman myself, i know the inherent sense of duty of journalists to seek the truth. On the other hand, privacy and reputation must not be totally brushed aside as well. The legislators should sit down and discuss possible crafting of a libel law contemporaneous and reflective of the current situations,” Kiko said.
‘Ang kalayaan ng pamamahayag at mga karapatan ng mga indibidwal mapanatili sa tama ang kanilang pribadong buhay o reputasyon at parehong bunga ng demokrasya. We can always try our best to strike a balance so that neither will be unduly sacrificed,’ Kiko ended.
