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Ayer Productions v Capulong (1988)

In the case at bar, the interests observable

are the right to privacy asserted by
respondent and the right of freedom of
expression invoked by petitioner.
Hal McElroy, a Australian film maker and his
movie production company, Ayer Productions
had envisioned for commercial viewing and
for international release the film The Four
Day Revolution, relating to the relatively
peaceful change of government that took
place at EDSA in February 1986, and the
train of events which led up to that event.
The film was endorsed by the MTRCB as well
as the other government agencies which
were consulted. General Fildel Ramos also
signified his approval of the production.
Petioner submits that the subject matter of
the film is one of public interest and concern.
The subject thus relates to a highly critical
stage in the history of the Philippines and as
such, must be regarded as having passed
into the public domain and as an appropriate
subject for speech and expression and
coverage by any form of mass media.
Private respondent Enrile however expressed
his disapproval of the use, appropriation,
reproduction and/or exhibition of his name,
or picture, or that of any member of his
production, film or other medium for
advertising or commercial exploitation and
that no reference should be made to him or
any member of his family.
The movie production company acceded to
this demand and the use of Enriles name
and likeness were deleted from the whole
script, and the company proceeded with the
On Feb 23, 1988, Enrile filed a Complaint for
with Application for TRO seeking to enjoin
petitioners from producing the subject film,
alleging that the production of the film
constitutes an obvious violation of his right of
privacy. The RTC of Makati issued a Writ of
Preliminary injunction against AYER.

ISSUE: Whether or not the granting of

the Writ of Preliminary Injunction by the
respondent court is a restraint of the
petitioners freedom of expression?





freedom of speech and of expression the

Court would once more stress that this
freedom includes the freedom to film and
produce motion pictures and to exhibit such
motion pictures in theaters or to diffuse them
through television. This freedom is available
in our country both to locally-owned and to
foreign-owned motion picture companies.
Furthermore the circumstance that the
production of motion picture films is a
commercial activity expected to yield
monetary profit, is not a disqualification for
availing of freedom of speech and of
On the assertion of Enrile regarding the
violation of his right to privacy, the Court
held that The production and filming by
petitioners of the projected motion picture
"The Four Day Revolution" does not, in the
circumstances of this case, constitute an
unlawful intrusion upon private respondent's
"right of privacy."
The right of privacy is not an absolute right.
The prevailing doctrine is the clear and
present danger rule is such a limitation.
The respondent Judge has restrained
petitioners from filming and producing the
respondent Judge should have stayed his
hand, instead of issuing an ex-parte
Temporary Restraining Order and issuing a
Preliminary Injunction twenty (20) days later;
for the projected motion picture was as yet
uncompleted and hence not exhibited to any
audience. Neither private respondent nor the
respondent trial Judge knew what the
completed film would precisely look like.
There was, in other words, no "clear
and present danger" of any violation of
any right to privacy that private
respondent could lawfully assert.
The subject matter of "The Four Day
Revolution", does not relate to the individual
life and certainly not to the private life of
private respondent Ponce Enrile. It is not
principally about, nor is it focused upon, the
man Juan Ponce Enrile' but it is compelled, if
it is to be historical, to refer to the role
played by Juan Ponce Enrile in the
precipitating and the constituent events of
the change of government in February 1986.
The extent of the instrusion upon the life of
private respondent Juan Ponce Enrile that
would be entailed by the production and
exhibition of "The Four Day Revolution"
would, therefore, be limited in character
which is reasonably necessary to keep that
film a truthful historical account. Private
respondent does not claim that petitioners
threatened to depict in "The Four Day
Revolution" any part of the private life of
private respondent or that of any member of

his family.
Private respondent is a "public figure"
precisely because, inter alia, of his
participation as a principal actor in the
culminating events of the change of
government in February 1986. Because his
participation therein was major in character,
a film reenactment of the peaceful revolution
that fails to make reference to the role
played by private respondent would be
grossly unhistorical. The right of privacy of a
"public figure" is necessarily narrower than
that of an ordinary citizen. Private
respondent has not retired into the seclusion
of simple private citizenship. he continues to
be a "public figure." After a successful
participation in the EDSA Revolution was
directly or indirectly referred to in the press,
radio and television, he sits in a very public
place, the Senate of the Philippines.
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 personage.'
He is, in other words, a celebrity.
Temporary Restraining Order & Preliminary
Injunction issued were set aside and

Philippine Journalists Inc. v Theonen

On 30 September 1990, the a news item
appeared in the Peoples Journal, a tabloid of
general circulation. The news item is titled
Swiss Shoots Neighbors Pets, stating
that residents of a subdivision in Paraaque
have asked the BIR to deport Francis
Thoenen, a Swiss who allegedly shoots
wayward neighbors pets that he finds in his
Claiming that the report was false and
defamatory, and that the petitioners acted
irresponsibly in failing to verify the truth of
the same prior to publication, he filed a civil
case for damages against herein petitioners
Philippine Journalists, Inc., Zacarias Nuguid,
Jr., its publisher, and reporter Cristina Lee.

moral duty to inform the public on matters of

general interest, promote the public good
and protect the moral public (sic) of the
people, and that the story was published in
good faith and without malice.
The principal source of the article was a
letter by Atty. Efren Angara, who represented
the residents, addressed to Commissioner
Andrea Domingo of the Commission on
Immigration and Deportation (CID, now BIR).
The letter asked for the verification of the
true status of Thoenen since the foreigner
has been causing troubles ever since he
showed up. He is too meticulous and had
been shooting dogs and cats passing his
house wall everytime. It further contained
that Theonen allegedly had been always
driving his car barbarously inside the
subdivision with children playing around the
It was proven at trial that the news article
contained several statements which were
untrue. Moreover, it is immediately apparent
that while the letter is a mere request for
verification of Thoenens status, Lee wrote
that residents of BF Homes had asked to
deport him. No complaints had in fact been
lodged against him by any of the BF
deportation proceedings been initiated
against him in the Bureau of Immigration.
The trial also showed that Lee made no
efforts to contact either Thoenen or the
purported letter-writer, Atty. Angara to verify
the facts for her report.
RTC Branch 62, Makati City rendered its
decision in favor of Phil Journ Inc. In its
decision, it stated that there is no malice
on the part of the petitioners in
publishing the news item since it was
done in the exercise of their profession as
journalist reporting to the people on matters
of public interest. Based on this, the RTC said
that the alleged defamatory article falls
within the purview of a qualifiedly privileged
matter protected by the freedom of the
press, and that therefore it cannot be
presumed to be malicious. And that the onus
of proving malice is shifted to Theonen, but
he accordingly failed to do.

Thoenen claimed that the article destroyed

the respect and admiration he enjoyed in the
community, and that since it had been
published, he and his wife received several
queries and angry calls from friends,
neighbors and relatives.

On appeal CA reversed the RTC decision and

held that although freedom of expression
and the right of speech and of the press are
among the most zealously guarded in the
Constitution, still, in the exercise of these
rights, Article 19 of the Civil Code requires
everyone to act with justice, give everyone
his due, and observe honesty and good

The petitioners admitted publication of the

news item, ostensibly out of a social and

The appellate court emphasized that

Thoenen was neither a public official nor a

public figure.
The petitioners argue that this case is one for
damages arising from libel, and not one for
abuse of rights under the New Civil Code.
They further claim the constitutional
protections extended by the freedom of
speech and of the press clause of the 1987
Constitution against liability for libel,
claiming that the article was published in
fulfillment of its social and moral duty to
inform the public on matters of general
interest, promote the public good and protect
the moral [fabric] of the people.

a third person or a stranger was able to

identify him as the object of the defamatory
Finally, malice or ill will must be present. Art.
354 of the Revised Penal Code provides
(please refer to Tulfo case on the exceptions
on the presumption of malice).
In this case, there is no controversy as to the
existence of the 1st three elements.
What the petitioners claim is the absence of
proof of the fourth element - malice.

constitutional privilege granted under
the freedom of speech and the press
against liability for damages extend to
the present case.

presumption of malice, however the Court
rules that the news item is not a privileged


A privileged communication may be either

absolutely privileged or qualifiedly privileged.
Absolutely privileged communications
are those which are not actionable even if
the author has acted in bad faith. An
example is found in Sec. 11, Art. VI of the
1987 Constitution which exempts a member
of Congress from liability for any speech or
debate in the Congress or in any Committee
thereof. Upon the other hand, qualifiedly
privileged communications containing
defamatory imputations are not actionable
unless found to have been made without
good intention or justifiable motive. To this
genre belong private communications and
fair and true report without any comments or

No, it does not.

The freedom of speech and of the press is
not absolute and not all speech is protected
by the
Constitution. These type of
unprotected speech include the lewd and
obscene, the profane, the libelous, and the
insulting or fighting words - those which by
their very utterance inflict injury or tend to
incite an immediate breach of the peace. It
has been well observed that such utterances
are no essential part of any exposition of
ideas, and are of such slight social value as a
step to truth that any benefit that may be
derived from them is clearly outweighed by
the social interest in order and morality.
For an imputation to be libelous, the
following requisites must be met: (a) the
allegation of a discreditable act or condition
concerning another; (b) publication of the
charge; (c) identity of the person defamed;
and (d) existence of malice.
An allegation is considered defamatory if it
ascribes to a person the commission of a
crime, the possession of a vice or defect, real
or imaginary, or any act, omission, condition,
status or circumstance which tends to
dishonor or discredit or put him in contempt,
or which tends to blacken the memory of one
who is dead.
There is publication if the material is
communicated to a third person. It is not
required that the person defamed has read
or heard about the libelous remark. What is
material is that a third person has read or
heard the libelous statement, for a mans
reputation is the estimate in which others
hold him, not the good opinion which he has
of himself.
On the other hand, to satisfy the element of
identifiability, it must be shown that at least

The appellate court correctly ruled that the

petitioners story is not privileged in
communication nor a fair and true report
without any comments or remarks.
Even if we assume that the letter of Atty.
Angara is a privileged communication, it lost
its character as such when the matter was
published in the newspaper and circulated
among general publication. A written letter
containing libelous matter cannot be
privileged when it is published and
circulated in public.
Nor is the article related to any act
performed by public officers in the exercise
of their functions, for it concerns only false
imputations against a private individual.
There is no constitutional value in false
statements of fact.