damages in a libel action brought by a public official against critics of his official
conduct.
Libel/Tort
New York Times Co. v. Sullivan (No. 39)
Argued: January 6, 1964
Decided: March 9, 1964
273 Ala. 656, 144 So.2d 25, reversed and remanded.
Syllabus
Opinion, Brennan
Concurrence, Black
Concurrence, Goldberg
Syllabus
Respondent, an elected official in Montgomery, Alabama, brought suit in a state
court alleging that he had been libeled by an advertisement in corporate petitioner's
newspaper, the text of which appeared over the names of the four individual
petitioners and many others. The advertisement included statements, some of which
were false, about police action allegedly directed against students who participated
in a civil rights demonstration and against a leader of the civil rights movement;
respondent claimed the statements referred to him because his duties included
supervision of the police department. The trial judge instructed the jury that such
statements were "libelous per se," legal injury being implied without proof of actual
damages, and that, for the purpose of compensatory damages, malice was
presumed, so that such damages could be awarded against petitioners if the
statements were found to have been published by them and to have related to
respondent. As to punitive damages, the judge instructed that mere negligence was
not evidence of actual malice, and would not justify an award of punitive damages;
he refused to instruct that actual intent to harm or recklessness had to be found
before punitive damages could be awarded, or that a verdict for respondent should
differentiate between compensatory and punitive damages. The jury found for
respondent, and the State Supreme Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments, award damages
to a public official for defamatory falsehood relating to his official conduct unless he
proves "actual malice" -- that the statement was made with knowledge of its falsity
or with reckless disregard of whether it was true or false. Pp. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a
judgment in a civil action, is "state action" under the Fourteenth Amendment. P. 265.
(b) Expression does not lose constitutional protection to which it would otherwise be
entitled because it appears in the form of a paid advertisement. Pp. 265-266. [p255]
(c) Factual error, content defamatory of official reputation, or both, are insufficient to
warrant an award of damages for false statements unless "actual malice" --
knowledge that statements are false or in reckless disregard of the truth -- is alleged
and proved. Pp. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate
between punitive damages, as to which, under state law, actual malice must be
proved, and general damages, as to which it is "presumed," precludes any
determination as to the basis of the verdict, and requires reversal, where
presumption of malice is inconsistent with federal constitutional requirements. P.
284.
(e) The evidence was constitutionally insufficient to support the judgment for
respondent, since it failed to support a finding that the statements were made with
actual malice or that they related to respondent. Pp. 285-292.
Opinion
BRENNAN, J., Opinion of the Court
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We are required in this case to determine for the first time the extent to which the
constitutional protections for speech and press limit a State's power to award
Respondent L. B. Sullivan is one of the three elected Commissioners of the City of
Montgomery, Alabama. He testified that he was
Commissioner of Public Affairs, and the duties are supervision of the Police
Department, Fire Department, Department of Cemetery and Department of Scales.
He brought this civil libel action against the four individual petitioners, who are
Negroes and Alabama clergymen, and against petitioner the New York Times
Company, a New York corporation which publishes the New York Times, a daily
newspaper. A jury in the Circuit Court of Montgomery County awarded him damages
of $500,000, the full amount claimed, against all the petitioners, and the Supreme
Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25.
Respondent's complaint alleged that he had been libeled by statements in a full-
page advertisement that was carried in the New York Times on March 29, 1960. [n1]
Entitled "Heed Their Rising Voices," the advertisement began by stating that,
As the whole world knows by now, thousands of Southern Negro students are
engaged in widespread nonviolent demonstrations in positive affirmation of the right
to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.
It went on to charge that, in their efforts to uphold these guarantees, they are being
met by an unprecedented wave of terror by those who would deny and negate that
document which the whole world looks upon as setting the pattern for modern
freedom. . . .
Succeeding [p257] paragraphs purported to illustrate the "wave of terror" by
describing certain alleged events. The text concluded with an appeal for funds for
three purposes: support of the student movement, "the struggle for the right to
vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the movement,
against a perjury indictment then pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their
activities in public affairs, religion, trade unions, and the performing arts. Below
these names, and under a line reading "We in the south who are struggling daily for
dignity and freedom warmly endorse this appeal," appeared the names of the four
individual petitioners and of 16 other persons, all but two of whom were identified as
clergymen in various Southern cities. The advertisement was signed at the bottom
of the page by the "Committee to Defend Martin Luther King and the Struggle for
Freedom in the South," and the officers of the Committee were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of the
sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the
State Capitol steps, their leaders were expelled from school, and truckloads of police
armed with shotguns and tear-gas ringed the Alabama State College Campus. When
the entire student body protested to state authorities by refusing to reregister, their
dining hall was padlocked in an attempt to starve them into submission.
Sixth paragraph:
Again and again, the Southern violators have answered Dr. King's peaceful protests
with intimidation and violence. They have bombed his home, almost killing his wife
and child. They have [p258] assaulted his person. They have arrested him seven
times -- for "speeding," "loitering" and similar "offenses." And now they have
charged him with "perjury" -- a felony under which they could imprison him for ten
years. . . .
Although neither of these statements mentions respondent by name, he contended
that the word "police" in the third paragraph referred to him as the Montgomery
Commissioner who supervised the Police Department, so that he was being accused
of "ringing" the campus with police. He further claimed that the paragraph would be
read as imputing to the police, and hence to him, the padlocking of the dining hall in
order to starve the students into submission. [n2] As to the sixth paragraph, he
contended that, since arrests are ordinarily made by the police, the statement "They
have arrested [Dr. King] seven times" would be read as referring to him; he further
contended that the "They" who did the arresting would be equated with the "They"
who committed the other described acts and with the "Southern violators." Thus, he
argued, the paragraph would be read as accusing the Montgomery police, and hence
him, of answering Dr. King's protests with "intimidation and violence," bombing his
home, assaulting his person, and charging him with perjury. Respondent and six
other Montgomery residents testified that they read some or all of the statements as
referring to him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs
were not accurate descriptions of events which occurred in Montgomery. Although
Negro students staged a demonstration on the State Capitol steps, they sang the
National Anthem and not "My [p259] Country, 'Tis of Thee." Although nine students
were expelled by the State Board of Education, this was not for leading the
demonstration at the Capitol, but for demanding service at a lunch counter in the
Montgomery County Courthouse on another day. Not the entire student body, but
most of it, had protested the expulsion, not by refusing to register, but by boycotting
classes on a single day; virtually all the students did register for the ensuing
semester. The campus dining hall was not padlocked on any occasion, and the only
students who may have been barred from eating there were the few who had
neither signed a preregistration application nor requested temporary meal tickets.
Although the police were deployed near the campus in large numbers on three
occasions, they did not at any time "ring" the campus, and they were not called to
the campus in connection with the demonstration on the State Capitol steps, as the
third paragraph implied. Dr. King had not been arrested seven times, but only four,
and although he claimed to have been assaulted some years earlier in connection
with his arrest for loitering outside a courtroom, one of the officers who made the
arrest denied that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to
him, respondent was allowed to prove that he had not participated in the events
described. Although Dr. King's home had, in fact, been bombed twice when his wife
and child were there, both of these occasions antedated respondent's tenure as
Commissioner, and the police were not only not implicated in the bombings, but had
made every effort to apprehend those who were. Three of Dr. King's four arrests took
place before respondent became Commissioner. Although Dr. King had, in fact, been
indicted (he was subsequently acquitted) on two counts of perjury, each of which
carried a possible five-year sentence, respondent had nothing to do with procuring
the indictment. [p260]
Respondent made no effort to prove that he suffered actual pecuniary loss as a
result of the alleged libel. [n3] One of his witnesses, a former employer, testified
that, if he had believed the statements, he doubted whether he "would want to be
associated with anybody who would be a party to such things that are stated in that
ad," and that he would not reemploy respondent if he believed "that he allowed the
Police Department to do the things that the paper say he did." But neither this
witness nor any of the others testified that he had actually believed the statements
in their supposed reference to respondent. The cost of the advertisement was
approximately $4800, and it was published by the Times upon an order from a New
York advertising agency acting for the signatory Committee. The agency submitted
the advertisement with a letter from A. Philip Randolph, Chairman of the Committee,
certifying that the persons whose names appeared on the advertisement had given
their permission. Mr. Randolph was known to the Times' Advertising Acceptability
Department as a responsible person, and, in accepting the letter as sufficient proof
of authorization, it followed its established practice. There was testimony that the
copy of the advertisement which accompanied the letter listed only the 64 names
appearing under the text, and that the statement, "We in the south . . . warmly
endorse this appeal," and the list of names thereunder, which included those of the
individual petitioners, were subsequently added when the first proof of the
advertisement was received. Each of the individual petitioners testified that he had
not authorized the use of his name, and that he had been unaware of its use until
receipt of respondent's demand for a retraction. The manager of the Advertising
Acceptability [p261] Department testified that he had approved the advertisement
for publication because he knew nothing to cause him to believe that anything in it
was false, and because it bore the endorsement of "a number of people who are well
known and whose reputation" he "had no reason to question." Neither he nor anyone
else at the Times made an effort to confirm the accuracy of the advertisement,
either by checking it against recent Times news stories relating to some of the
described events or by any other means.
Alabama law denies a public officer recovery of punitive damages in a libel action
brought on account of a publication concerning his official conduct unless he first
makes a written demand for a public retraction and the defendant fails or refuses to
comply. Alabama Code, Tit. 7, 914. Respondent served such a demand upon each
of the petitioners. None of the individual petitioners responded to the demand,
primarily because each took the position that he had not authorized the use of his
name on the advertisement, and therefore had not published the statements that
respondent alleged had libeled him. The Times did not publish a retraction in
response to the demand, but wrote respondent a letter stating, among other things,
that "we . . . are somewhat puzzled as to how you think the statements in any way
reflect on you," and "you might, if you desire, let us know in what respect you claim
that the statements in the advertisement reflect on you." Respondent filed this suit a
few days later without answering the letter. The Times did, however, subsequently
publish a retraction of the advertisement upon the demand of Governor John
Patterson of Alabama, who asserted that the publication charged him with grave
misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-
Officio Chairman of the State Board of Education of Alabama.
When asked to explain why there had been a retraction for the Governor but not for
respondent, the [p262] Secretary of the Times testified:
We did that because we didn't want anything that was published by The Times to be
a reflection on the State of Alabama, and the Governor was, as far as we could see,
the embodiment of the State of Alabama and the proper representative of the State,
and, furthermore, we had by that time learned more of the actual facts which the
and purported to recite and, finally, the ad did refer to the action of the State
authorities and the Board of Education, presumably of which the Governor is the ex-
officio chairman. . . .
On the other hand, he testified that he did not think that "any of the language in
there referred to Mr. Sullivan."
The trial judge submitted the case to the jury under instructions that the statements
in the advertisement were "libelous per se," and were not privileged, so that
petitioners might be held liable if the jury found that they had published the
advertisement and that the statements were made "of and concerning" respondent.
The jury was instructed that, because the statements were libelous per se, "the law .
. . implies legal injury from the bare fact of publication itself," "falsity and malice are
presumed," "general damages need not be alleged or proved, but are presumed,"
and "punitive damages may be awarded by the jury even though the amount of
actual damages is neither found nor shown." An award of punitive damages -- as
distinguished from "general" damages, which are compensatory in nature --
apparently requires proof of actual malice under Alabama law, and the judge
charged that mere negligence or carelessness is not evidence of actual malice or
malice in fact, and does not justify an award of exemplary or punitive damages.
He refused to charge, however, that the jury must be "convinced" of malice, in the
sense of "actual intent" to harm or "gross negligence and recklessness," to make
such an award, and he also refused to require that a verdict for respondent
differentiate between compensatory and punitive damages. The judge rejected
petitioners' contention [p263] that his rulings abridged the freedoms of speech and
of the press that are guaranteed by the First and Fourteenth Amendments.
In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's
rulings and instructions in all respects. 273 Ala. 656, 144 So.2d 25. It held that,
where the words published tend to injure a person libeled by them in his reputation,
profession, trade or business, or charge him with an indictable offense, or tend to
bring the individual into public contempt, they are "libelous per se"; that "the matter
complained of is, under the above doctrine, libelous per se, if it was published of and
concerning the plaintiff", and that it was actionable without "proof of pecuniary
injury . . . . such injury being implied." Id. at 673, 676, 144 So.2d at 37, 41. It
approved the trial court's ruling that the jury could find the statements to have been
made "of and concerning" respondent, stating:
We think it common knowledge that the average person knows that municipal
agents, such as police and firemen, and others, are under the control and direction
of the city governing body, and, more particularly, under the direction and control of
a single commissioner. In measuring the performance or deficiencies of such groups,
praise or criticism is usually attached to the official in complete control of the body.
Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the
verdict was not excessive, the court said that malice could be inferred from the
Times' "irresponsibility" in printing the advertisement while the Times, in its own
files, had articles already published which would have demonstrated the falsity of
the allegations in the advertisement;
from the Times' failure to retract for respondent while retracting for the Governor,
whereas the falsity of some of the allegations was then known to the Times and "the
matter contained in the advertisement was equally false as to both parties", and
from the testimony of the Times' Secretary that, [p264] apart from the statement
that the dining hall was padlocked, he thought the two paragraphs were
"substantially correct." Id. at 686-687, 144 So.2d at 50-51. The court reaffirmed a
statement in an earlier opinion that "There is no legal measure of damages in cases
of this character." Id. at 686, 144 So.2d at 50. It rejected petitioners' constitutional
contentions with the brief statements that "The First Amendment of the U.S.
Constitution does not protect libelous publications," and "The Fourteenth
Amendment is directed against State action, and not private action." Id. at 676, 144
So.2d at 40.
Because of the importance of the constitutional issues involved, we granted the
separate petitions for certiorari of the individual petitioners and of the Times. 371
U.S. 946. We reverse the judgment. We hold that the rule of law applied by the
Alabama courts is constitutionally deficient for failure to provide the safeguards for
freedom of speech and of the press that are required by the First and Fourteenth
Amendments in a libel action brought by a public official against critics of his official
conduct. [n4] We [p265] further hold that, under the proper safeguards, the
evidence presented in this case is constitutionally insufficient to support the
judgment for respondent.
I.
We may dispose at the outset of two grounds asserted to insulate the judgment of
the Alabama courts from constitutional scrutiny. The first is the proposition relied on
by the State Supreme Court -- that "The Fourteenth Amendment is directed against
State action, and not private action." That proposition has no application to this
case. Although this is a civil lawsuit between private parties, the Alabama courts
have applied a state rule of law which petitioners claim to impose invalid restrictions
on their constitutional freedoms of speech and press. It matters not that that law has
been applied in a civil action and that it is common law only, though supplemented
by statute. See, e.g., Alabama Code, Tit. 7, 908-917. The test is not the form in
which state power has been applied but, whatever the form, whether such power
has, in fact, been exercised. See Ex parte Virginia, 100 U.S. 339, 346-347; American
Federation of Labor v. Swing. 312 U.S. 321.
The second contention is that the constitutional guarantees of freedom of speech
and of the press are inapplicable here, at least so far as the Times is concerned,
because the allegedly libelous statements were published as part of a paid,
"commercial" advertisement. The argument relies on Valentine v. Chrestensen, 316
U.S. 52, where the Court held that a city ordinance forbidding street distribution of
commercial and business advertising matter did not abridge the First Amendment
freedoms, even as applied to a handbill having a commercial message on one side
but a protest against certain official action, on the other. The reliance is wholly
misplaced. The Court in Chrestensen reaffirmed the constitutional protection for "the
freedom of communicating [p266] information and disseminating opinion"; its
holding was based upon the factual conclusions that the handbill was "purely
commercial advertising" and that the protest against official action had been added
only to evade the ordinance.
The publication here was not a "commercial" advertisement in the sense in which
the word was used in Chrestensen. It communicated information, expressed opinion,
recited grievances, protested claimed abuses, and sought financial support on
behalf of a movement whose existence and objectives are matters of the highest
public interest and concern. See NAACP v. Button, 371 U.S. 415, 435. That the Times
was paid for publishing the advertisement is as immaterial in this connection as is
the fact that newspapers and books are sold. Smith v. California, 361 U.S. 147, 150;
cf. Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 64, n. 6. Any other conclusion would
discourage newspapers from carrying "editorial advertisements" of this type, and so
might shut off an important outlet for the promulgation of information and ideas by
persons who do not themselves have access to publishing facilities -- who wish to
exercise their freedom of speech even though they are not members of the press.
Cf. Lovell v. Griffin, 303 U.S. 444, 452; Schneider v. State, 308 U.S. 147, 164. The
effect would be to shackle the First Amendment in its attempt to secure "the widest
possible dissemination of information from diverse and antagonistic sources."
Associated Press v. United States, 326 U.S. 1, 20. To avoid placing such a handicap
upon the freedoms of expression, we hold that, if the allegedly libelous statements
would otherwise be constitutionally protected from the present judgment, they do
not forfeit that protection because they were published in the form of a paid
advertisement. [n5] [p267]
II
Under Alabama law, as applied in this case, a publication is "libelous per se" if the
words "tend to injure a person . . . in his reputation" or to "bring [him] into public
contempt"; the trial court stated that the standard was met if the words are such as
to "injure him in his public office, or impute misconduct to him in his office, or want
of official integrity, or want of fidelity to a public trust. . . ." The jury must find that
the words were published "of and concerning" the plaintiff, but, where the plaintiff is
a public official, his place in the governmental hierarchy is sufficient evidence to
support a finding that his reputation has been affected by statements that reflect
upon the agency of which he is in charge. Once "libel per se" has been established,
the defendant has no defense as to stated facts unless he can persuade the jury
that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263,
178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124
So.2d 441, 457-458 (1960). His privilege of "fair comment" for expressions of
opinion depends on the truth of the facts upon which the comment is based. Parsons
v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). Unless he
can discharge the burden of proving truth, general damages are presumed, and may
be awarded without proof of pecuniary injury. A showing of actual malice is
apparently a prerequisite to recovery of punitive damages, and the defendant may,
in any event, forestall a punitive award by a retraction meeting the statutory
requirements. Good motives and belief in truth do not negate an inference of malice,
but are relevant only in mitigation of punitive damages if the jury chooses to accord
them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So.2d at
458. [p268]
The question before us is whether this rule of liability, as applied to an action
brought by a public official against critics of his official conduct, abridges the
freedom of speech and of the press that is guaranteed by the First and Fourteenth
Amendments.
Respondent relies heavily, as did the Alabama courts, on statements of this Court to
the effect that the Constitution does not protect libelous publications. [n6] Those
statements do not foreclose our inquiry here. None of the cases sustained the use of
libel laws to impose sanctions upon expression critical of the official conduct of
public officials. The dictum in Pennekamp v. Florida, 328 U.S. 331, 348-349, that
"when the statements amount to defamation, a judge has such remedy in damages
for libel as do other public servants," implied no view as to what remedy might
constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U.S. 250,
the Court sustained an Illinois criminal libel statute as applied to a publication held
to be both defamatory of a racial group and "liable to cause violence and disorder."
But the Court was careful to note that it "retains and exercises authority to nullify
action which encroaches on freedom of utterance under the guise of punishing
libel"; for "public men are, as it were, public property," and "discussion cannot be
denied, and the right, as well as the duty, of criticism must not be stifled." Id. at
263-264, and n. 18. In the only previous case that did present the question of
constitutional limitations upon the power to award damages for libel of a public
official, the Court was equally divided and the question was not decided.
Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642. [p269] In deciding the
question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. NAACP
v. Button, 371 U.S. 415, 429. Like insurrection, [n7] contempt, [n8] advocacy of
unlawful acts, [n9] breach of the peace, [n10] obscenity, [n11] solicitation of legal
business, [n12] and the various other formulae for the repression of expression that
have been challenged in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that satisfy the First
Amendment.
The general proposition that freedom of expression upon public questions is secured
by the First Amendment has long been settled by our decisions. The constitutional
safeguard, we have said, "was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the people." Roth v.
United States, 354 U.S. 476, 484.
The maintenance of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be
obtained by lawful means, an opportunity essential to the security of the Republic, is
a fundamental principle of our constitutional system.
Stromberg v. California, 283 U.S. 359, 369. "[I]t is a prized American privilege to
speak one's mind, although not always with perfect good taste, on all public
institutions," Bridges v. California, 314 U.S. 252, 270, and this opportunity is to be
afforded for "vigorous advocacy" no less than "abstract discussion." NAACP v.
Button, 371 U.S. 415, 429. [p270] The First Amendment, said Judge Learned Hand,
presupposes that right conclusions are more likely to be gathered out of a multitude
of tongues than through any kind of authoritative selection. To many, this is, and
always will be, folly, but we have staked upon it our all.
United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice
Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376,
gave the principle its classic formulation:
Those who won our independence believed . . . that public discussion is a political
duty, and that this should be a fundamental principle of the American government.
They recognized the risks to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies, and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by law -- the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed.
Thus, we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. See
Terminiello v. Chicago, 337 U.S. 1, 4; De Jonge v. Oregon, 299 U.S. 353, [p271] 365.
The present advertisement, as an expression of grievance and protest on one of the
major public issues of our time, would seem clearly to qualify for the constitutional
protection. The question is whether it forfeits that protection by the falsity of some
of its factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently
refused to recognize an exception for any test of truth -- whether administered by
judges, juries, or administrative officials -- and especially one that puts the burden of
proving truth on the speaker. Cf. Speiser v. Randall, 357 U.S. 513, 525-526. The
constitutional protection does not turn upon "the truth, popularity, or social utility of
the ideas and beliefs which are offered." NAACP v. Button, 371 U.S. 415, 445. As
Madison said, "Some degree of abuse is inseparable from the proper use of every
thing, and in no instance is this more true than in that of the press." 4 Elliot's
Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310
U.S. 296, 310, the Court declared:

In the realm of religious faith, and in that of political belief, sharp differences arise.
In both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times resorts
to exaggeration, to vilification of men who have been, or are, prominent in church or
state, and even to false statement. But the people of this nation have ordained, in
the light of history, that, in spite of the probability of excesses and abuses, these
liberties are, in the long view, essential to enlightened opinion and right conduct on
the part of the citizens of a democracy.
That erroneous statement is inevitable in free debate, and that it must be protected
if the freedoms of expression [p272] are to have the "breathing space" that they
"need . . . to survive," NAACP v. Button, 371 U.S. 415, 433, was also recognized by
the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76
U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge
Edgerton spoke for a unanimous court which affirmed the dismissal of a
Congressman's libel suit based upon a newspaper article charging him with anti-
Semitism in opposing a judicial appointment. He said:
Cases which impose liability for erroneous reports of the political conduct of officials
reflect the obsolete doctrine that the governed must not criticize their governors. . . .
The interest of the public here outweighs the interest of appellant or any other
individual. The protection of the public requires not merely discussion, but
information. Political conduct and views which some respectable people approve,
and others condemn, are constantly imputed to Congressmen. Errors of fact,
particularly in regard to a man's mental states and processes, are inevitable. . . .
Whatever is added to the field of libel is taken from the field of free debate. [n13]
Injury to official reputation affords no more warrant for repressing speech that would
otherwise be free than does factual error. Where judicial officers are involved, this
Court has held that concern for the dignity and [p273] reputation of the courts does
not justify the punishment as criminal contempt of criticism of the judge or his
decision. Bridges v. California, 314 U.S. 252. This is true even though the utterance
contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331,
342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and
present danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367;
Wood v. Georgia, 370 U.S. 375. If judges are to be treated as "men of fortitude, able
to thrive in a hardy climate," Craig v. Harney, supra, 331 U.S. at 376, surely the
same must be true of other government officials, such as elected city
commissioners. [n14] Criticism of their official conduct does not lose its
constitutional protection merely because it is effective criticism, and hence
diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional
shield from criticism of official conduct, the combination of the two elements is no
less inadequate. This is the lesson to be drawn from the great controversy over the
Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the
central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at
258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute
made it a crime, punishable by a $5,000 fine and five years in prison,
if any person shall write, print, utter or publish . . . any false, scandalous and
malicious [p274] writing or writings against the government of the United States, or
either house of the Congress . . . or the President . . . with intent to defame . . . or to
bring them, or either of them, into contempt or disrepute; or to excite against them,
or either or any of them, the hatred of the good people of the United States.
The Act allowed the defendant the defense of truth, and provided that the jury were
to be judges both of the law and the facts. Despite these qualifications, the Act was
vigorously condemned as unconstitutional in an attack joined in by Jefferson and
Madison. In the famous Virginia Resolutions of 1798, the General Assembly of
Virginia resolved that it doth particularly protest against the palpable and alarming
infractions of the Constitution in the two late cases of the "Alien and Sedition Acts,"
passed at the last session of Congress. . . . [The Sedition Act] exercises . . . a power
not delegated by the Constitution, but, on the contrary, expressly and positively
forbidden by one of the amendments thereto -- a power which, more than any other,
ought to produce universal alarm because it is leveled against the right of freely
examining public characters and measures, and of free communication among the
people thereon, which has ever been justly deemed the only effectual guardian of
every other right.
4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the
protest. His premise was that the Constitution created a form of government under
which "The people, not the government, possess the absolute sovereignty." The
structure of the government dispersed power in reflection of the people's distrust of
concentrated power, and of power itself at all levels. This form of government was
"altogether different" from the British form, under which the Crown was sovereign
and the people were subjects. "Is [p275] it not natural and necessary, under such
different circumstances," he asked, "that a different degree of freedom in the use of
the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the
House of Representatives, Madison had said:
If we advert to the nature of Republican Government, we shall find that the censorial
power is in the people over the Government, and not in the Government over the
people.
4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his
Report said:
In every state, probably, in the Union, the press has exerted a freedom in canvassing
the merits and measures of public men, of every description, which has not been
confined to the strict limits of the common law. On this footing, the freedom of the
press has stood; on this foundation it yet stands. . . .
4 Elliot's Debates, supra, p. 570. The right of free public discussion of the
stewardship of public officials was thus, in Madison's view, a fundamental principle
of the American form of government. [n15] [p276]
Although the Sedition Act was never tested in this Court, [n16] the attack upon its
validity has carried the day in the court of history. Fines levied in its prosecution
were repaid by Act of Congress on the ground that it was unconstitutional. See, e.g.,
Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong.,
1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed
that its invalidity was a matter "which no one now doubts." Report with Senate bill
No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had
been convicted and sentenced under the Act and remitted their fines, stating:
I discharged every person under punishment or prosecution under the sedition law
because I considered, and now consider, that law to be a nullity, as absolute and as
palpable as if Congress had ordered us to fall down and worship a golden image.
Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555,
556. The invalidity of the Act has also been assumed by Justices of this Court. See
Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U.S.
616, 630; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U.S. 250, 288-289;
Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional
Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the
United States (1942), pp. 27-28. These views reflect a broad consensus that the Act,
because of the restraint it imposed upon criticism of government and public officials,
was inconsistent with the First Amendment.
There is no force in respondent's argument that the constitutional limitations implicit
in the history of the Sedition Act apply only to Congress, and not to the States. It is
true that the First Amendment was originally addressed only to action by the Federal
Government, and [p277] that Jefferson, for one, while denying the power of
Congress "to controul the freedom of the press," recognized such a power in the
States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United States, 341
U.S. 494, 522, n. 4 (concurring opinion). But this distinction was eliminated with the
adoption of the Fourteenth Amendment and the application to the States of the First
Amendment's restrictions. See, e.g., Gitlow v. New York, 268 U.S. 652, 666;
Schneider v. State, 308 U.S. 147, 160; Bridges v. California, 314 U.S. 252, 268;
Edwards v. South Carolina, 372 U.S. 229, 235.
What a State may not constitutionally bring about by means of a criminal statute is
likewise beyond the reach of its civil law of libel. [n17] The fear of damage awards
under a rule such as that invoked by the Alabama courts here may be markedly
more inhibiting than the fear of prosecution under a criminal statute. See City of
Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for
example, has a criminal libel law which subjects to prosecution "any person who
speaks, writes, or prints of and concerning another any accusation falsely and
maliciously importing the commission by such person of a felony, or any other
indictable offense involving moral turpitude," and which allows as punishment upon
conviction a fine not exceeding $500 and a prison sentence of six months. Alabama
Code, Tit. 14, 350. Presumably, a person charged with violation of this statute
enjoys ordinary criminal law safeguards such as the requirements of an indictment
and of proof beyond a reasonable doubt. These safeguards are not available to the
defendant in a civil action. The judgment awarded in this case -- without the need
for any proof of actual pecuniary loss -- was one thousand times greater than the
maximum fine provided by the Alabama criminal statute, and one hundred times
greater than that provided by the Sedition Act. [p278] And since there is no double
jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may
be awarded against petitioners for the same publication. [n18] Whether or not a
newspaper can survive a succession of such judgments, the pall of fear and timidity
imposed upon those who would give voice to public criticism is an atmosphere in
which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil
libel is a form of regulation that creates hazards to protected freedoms markedly
greater than those that attend reliance upon the criminal law. Bantam Books, Inc. v.
Sullivan, 372 U.S. 58, 70.
The state rule of law is not saved by its allowance of the defense of truth. A defense
for erroneous statements honestly made is no less essential here than was the
requirement of proof of guilty knowledge which, in Smith v. California, 361 U.S. 147,
we held indispensable to a valid conviction of a bookseller for possessing obscene
writings for sale. We said:
For, if the bookseller is criminally liable without knowledge of the contents, . . . He
will tend to restrict the books he sells to those he has inspected, and thus the State
will have imposed a restriction upon the distribution of constitutionally protected, as
well as obscene, literature. . . . And the bookseller's burden would become the
public's burden, for, by restricting him, the public's access to reading matter would
be restricted. . . . [H]is timidity in the face of his absolute criminal liability thus would
tend to restrict the public's access to forms of the printed word which the State
could not constitutionally [p279] suppress directly. The bookseller's self-censorship,
compelled by the State, would be a censorship affecting the whole public, hardly
less virulent for being privately administered. Through it, the distribution of all
books, both obscene and not obscene, would be impeded.
( 361 U.S. 147, 153-154.) A rule compelling the critic of official conduct to guarantee
the truth of all his factual assertions -- and to do so on pain of libel judgments
virtually unlimited in amount -- leads to a comparable "self-censorship." Allowance of
the defense of truth, with the burden of proving it on the defendant, does not mean
that only false speech will be deterred. [n19] Even courts accepting this defense as
an adequate safeguard have recognized the difficulties of adducing legal proofs that
the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v.
Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public
Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be
critics of official conduct may be deterred from voicing their criticism, even though it
is believed to be true and even though it is, in fact, true, because of doubt whether
it can be proved in court or fear of the expense of having to do so. They tend to
make only statements which "steer far wider of the unlawful zone." Speiser v.
Randall, supra, 357 U.S. at 526. The rule thus dampens the vigor and limits the
variety of public debate. It is inconsistent with the First and Fourteenth
Amendments. The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made [p280]
with "actual malice" -- that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. An oft-cited statement of a like rule, which
has been adopted by a number of state courts, [n20] is found in the Kansas case of
Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General, a
candidate for reelection and a member of the commission charged with the
management and control of the state school fund, sued a newspaper publisher for
alleged libel in an article purporting to state facts relating to his official conduct in
connection with a school-fund transaction. The defendant pleaded privilege and the
trial judge, over the plaintiff's objection, instructed the jury that
where an article is published and circulated among voters for the sole purpose of
giving what the defendant [p281] believes to be truthful information concerning a
candidate for public office and for the purpose of enabling such voters to cast their
ballot more intelligently, and the whole thing is done in good faith and without
malice, the article is privileged, although the principal matters contained in the
article may be untrue, in fact, and derogatory to the character of the plaintiff, and in
such a case the burden is on the plaintiff to show actual malice in the publication of
the article.
In answer to a special question, the jury found that the plaintiff had not proved
actual malice, and a general verdict was returned for the defendant. On appeal, the
Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78
Kan., at 724, 98 P. at 286):
It is of the utmost consequence that the people should discuss the character and
qualifications of candidates for their suffrages. The importance to the state and to
society of such discussions is so vast, and the advantages derived are so great, that
they more than counterbalance the inconvenience of private persons whose conduct
may be involved, and occasional injury to the reputations of individuals must yield to
the public welfare, although at times such injury may be great. The public benefit
from publicity is so great, and the chance of injury to private character so small, that
such discussion must be privileged.
The court thus sustained the trial court's instruction as a correct statement of the
law, saying:
In such a case the occasion gives rise to a privilege, qualified to this extent: any one
claiming to be defamed by the communication must show actual malice or go
remediless. This privilege extends to a great variety of subjects, and includes
matters of [p282] public concern, public men, and candidates for office.
Such a privilege for criticism of official conduct [n21] is appropriately analogous to
the protection accorded a public official when he is sued for libel by a private citizen.
In Barr v. Matteo, 360 U.S. 564, 575, this Court held the utterance of a federal official
to be absolutely privileged if made "within the outer perimeter" of his duties. The
States accord the same immunity to statements of their highest officers, although
some differentiate their lesser officials and qualify the privilege they enjoy. [n22] But
all hold that all officials are protected unless actual malice can be proved. The
reason for the official privilege is said to be that the threat of damage suits would
otherwise "inhibit the fearless, vigorous, and effective administration of policies of
government" and "dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360
U.S. at 571. Analogous considerations support the privilege for the citizen-critic of
government. It is as much his duty to criticize as it is the official's duty to administer.
See Whitney v. California, 274 U.S. 357, 375 (concurring opinion of Mr. Justice
Brandeis), quoted supra, p. 270. As Madison said, see supra p. 275, "the censorial
power is in the people over the Government, and not in the Government over the
people." It would give public servants an unjustified preference over the public they
serve, if critics of official conduct [p283] did not have a fair equivalent of the
immunity granted to the officials themselves.
We conclude that such a privilege is required by the First and Fourteenth
Amendments.
III
We hold today that the Constitution delimits a State's power to award damages for
libel in actions brought by public officials against critics of their official conduct.
Since this is such an action, [n23] the rule requiring proof of actual malice is
applicable. While Alabama law apparently requires proof of actual malice for an
award of punitive damages, [n24] where general damages are concerned malice is
"presumed." Such a presumption is inconsistent [p284] with the federal rule. "The
power to create presumptions is not a means of escape from constitutional
restrictions," Bailey v. Alabama, 219 U.S. 219, 239, "the showing of malice required
for the forfeiture of the privilege is not presumed but is a matter for proof by the
plaintiff. . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959). [n25]
Since the trial judge did not instruct the jury to differentiate between general and
punitive damages, it may be that the verdict was wholly an award of one or the
other. But it is impossible to know, in view of the general verdict returned. Because
of this uncertainty, the judgment must be reversed and the case remanded.
Stromberg v. California, 283 U.S. 359, 367-368; Williams v. North Carolina, 317 U.S.
287, 291-292; see Yates v. United States, 354 U.S. 298, 311-312; Cramer v. United
States, 325 U.S. 1, 36, n. 45.
Since respondent may seek a new trial, we deem that considerations of effective
judicial administration require us to review the evidence in the present record to
determine [p285] whether it could constitutionally support a judgment for
respondent. This Court's duty is not limited to the elaboration of constitutional
principles; we must also in proper cases review the evidence to make certain that
those principles have been constitutionally applied. This is such a case, particularly
since the question is one of alleged trespass across "the line between speech
unconditionally guaranteed and speech which may legitimately be regulated."
Speiser v. Randall, 357 U.S. 513, 525. In cases where that line must be drawn, the
rule is that we examine for ourselves the statements in issue and the circumstances
under which they were made to see . . . whether they are of a character which the
principles of the First Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect.
Pennekamp v. Florida, 328 U.S. 331, 335; see also One, Inc., v. Olesen, 355 U.S. 371;
Sunshine Book Co. v. Summerfield, 355 U.S. 372. We must "make an independent
examination of the whole record," Edwards v. South Carolina, 372 U.S. 229, 235, so
as to assure ourselves that the judgment does not constitute a forbidden intrusion
on the field of free expression. [n26]
Applying these standards, we consider that the proof presented to show actual
malice lacks the convincing [p286] clarity which the constitutional standard
demands, and hence that it would not constitutionally sustain the judgment for
respondent under the proper rule of law. The case of the individual petitioners
requires little discussion. Even assuming that they could constitutionally be found to
have authorized the use of their names on the advertisement, there was no
evidence whatever that they were aware of any erroneous statements or were in
any way reckless in that regard. The judgment against them is thus without
constitutional support.
As to the Times, we similarly conclude that the facts do not support a finding of
actual malice. The statement by the Times' Secretary that, apart from the
padlocking allegation, he thought the advertisement was "substantially correct,"
affords no constitutional warrant for the Alabama Supreme Court's conclusion that it
was a
cavalier ignoring of the falsity of the advertisement [from which] the jury could not
have but been impressed with the bad faith of The Times, and its maliciousness
inferable therefrom.
The statement does not indicate malice at the time of the publication; even if the
advertisement was not "substantially correct" -- although respondent's own proofs
tend to show that it was -- that opinion was at least a reasonable one, and there was
no evidence to impeach the witness' good faith in holding it. The Times' failure to
retract upon respondent's demand, although it later retracted upon the demand of
Governor Patterson, is likewise not adequate evidence of malice for constitutional
purposes. Whether or not a failure to retract may ever constitute such evidence,
there are two reasons why it does not here. First, the letter written by the Times
reflected a reasonable doubt on its part as to whether the advertisement could
reasonably be taken to refer to respondent at all. Second, it was not a final refusal,
since it asked for an explanation on this point -- a request that respondent chose to
ignore. Nor does the retraction upon the demand of the Governor supply the [p287]
necessary proof. It may be doubted that a failure to retract, which is not itself
evidence of malice, can retroactively become such by virtue of a retraction
subsequently made to another party. But, in any event, that did not happen here,
since the explanation given by the Times' Secretary for the distinction drawn
between respondent and the Governor was a reasonable one, the good faith of
which was not impeached.
Finally, there is evidence that the Times published the advertisement without
checking its accuracy against the news stories in the Times' own files. The mere
presence of the stories in the files does not, of course, establish that the Times
"knew" the advertisement was false, since the state of mind required for actual
malice would have to be brought home to the persons in the Times' organization
having responsibility for the publication of the advertisement. With respect to the
failure of those persons to make the check, the record shows that they relied upon
their knowledge of the good reputation of many of those whose names were listed
as sponsors of the advertisement, and upon the letter from A. Philip Randolph,
known to them as a responsible individual, certifying that the use of the names was
authorized. There was testimony that the persons handling the advertisement saw
nothing in it that would render it unacceptable under the Times' policy of rejecting
advertisements containing "attacks of a personal character"; [n27] their failure to
reject it on this ground was not unreasonable. We think [p288] the evidence against
the Times supports, at most, a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the recklessness that is
required for a finding of actual malice. Cf. Charles Parker Co. v. Silver City Crystal
Co., 142 Conn. 605, 618, 116 A.2d 440, 446 (1955); Phoenix Newspapers, Inc., v.
Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957).
We also think the evidence was constitutionally defective in another respect: it was
incapable of supporting the jury's finding that the allegedly libelous statements were
made "of and concerning" respondent. Respondent relies on the words of the
advertisement and the testimony of six witnesses to establish a connection between
it and himself. Thus, in his brief to this Court, he states:
The reference to respondent as police commissioner is clear from the ad. In addition,
the jury heard the testimony of a newspaper editor . . . ; a real estate and insurance
man . . . ; the sales manager of a men's clothing store . . . ; a food equipment man . .
. ; a service station operator . . . , and the operator of a truck line for whom
respondent had formerly worked. . . . Each of these witnesses stated that he
associated the statements with respondent. . . .
(Citations to record omitted.) There was no reference to respondent in the
advertisement, either by name or official position. A number of the allegedly libelous
statements -- the charges that the dining hall was padlocked and that Dr. King's
home was bombed, his person assaulted, and a perjury prosecution instituted
against him -- did not even concern the police; despite the ingenuity of the
arguments which would attach this significance to the word "They," it is plain that
these statements could not reasonably be read as accusing respondent of personal
involvement in the acts [p289] in question. The statements upon which respondent
principally relies as referring to him are the two allegations that did concern the
police or police functions: that "truckloads of police . . . ringed the Alabama State
College Campus" after the demonstration on the State Capitol steps, and that Dr.
King had been "arrested . . . seven times." These statements were false only in that
the police had been "deployed near" the campus, but had not actually "ringed" it,
and had not gone there in connection with the State Capitol demonstration, and in
that Dr. King had been arrested only four times. The ruling that these discrepancies
between what was true and what was asserted were sufficient to injure respondent's
reputation may itself raise constitutional problems, but we need not consider them
here. Although the statements may be taken as referring to the police, they did not,
on their face, make even an oblique reference to respondent as an individual.
Support for the asserted reference must, therefore, be sought in the testimony of
respondent's witnesses. But none of them suggested any basis for the belief that
respondent himself was attacked in the advertisement beyond the bare fact that he
was in overall charge of the Police Department and thus bore official responsibility
for police conduct; to the extent that some of the witnesses thought respondent to
have been charged with ordering or approving the conduct or otherwise being
personally involved in it, they based this notion not on any statements in the
advertisement, and not on any evidence that he had, in fact, been so involved, but
solely on the unsupported assumption that, because of his official position, he must
have been. [n28] This reliance on the bare [p290] fact of respondent's official
position [n29] was made explicit by the Supreme Court of Alabama. That court, in
holding that the trial court "did not err in overruling the demurrer [of the Times] in
the aspect that the libelous [p291] matter was not of and concerning the [plaintiff,]"
based its ruling on the proposition that:
We think it common knowledge that the average person knows that municipal
agents, such as police and firemen, and others, are under the control and direction
of the city governing body, and more particularly under the direction and control of a
single commissioner. In measuring the performance or deficiencies of such groups,
praise or criticism is usually attached to the official in complete control of the body.
This proposition has disquieting implications for criticism of governmental conduct.
For good reason, no court of last resort in this country has ever held, or even
suggested, that prosecutions for libel on government have any place in the
American system of jurisprudence.
City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. [p292] 86, 88 (1923). The
present proposition would sidestep this obstacle by transmuting criticism of
government, however impersonal it may seem on its face, into personal criticism,
and hence potential libel, of the officials of whom the government is composed.
There is no legal alchemy by which a State may thus create the cause of action that
would otherwise be denied for a publication which, as respondent himself said of the
advertisement, "reflects not only on me but on the other Commissioners and the
community." Raising as it does the possibility that a good faith critic of government
will be penalized for his criticism, the proposition relied on by the Alabama courts
strikes at the very center of the constitutionally protected area of free expression.
[n30] We hold that such a proposition may not constitutionally be utilized to
establish that an otherwise impersonal attack on governmental operations was a
libel of an official responsible for those operations. Since it was relied on exclusively
here, and there was no other evidence to connect the statements with respondent,
the evidence was constitutionally insufficient to support a finding that the
statements referred to respondent.
The judgment of the Supreme Court of Alabama is reversed, and the case is
remanded to that court for further proceedings not inconsistent with this opinion.
Reversed and remanded. [p293]
485 U.S. 46
Hustler Magazine, Inc. v. Falwell (No. 86-1278)
Argued: December 2, 1987
Decided: February 24, 1988
Syllabus
Respondent, a nationally known minister and commentator on politics and public
affairs, filed a diversity action in Federal District Court against petitioners, a
nationally circulated magazine and its publisher, to recover damages for, inter alia,
libel and intentional infliction of emotional distress arising from the publication of an
advertisement "parody" which, among other things, portrayed respondent as having
engaged in a drunken incestuous rendezvous with his mother in an outhouse. The
jury found against respondent on the libel claim, specifically finding that the parody
could not "reasonably be understood as describing actual facts . . . or events," but
ruled in his favor on the emotional distress claim, stating that he should be awarded
compensatory and punitive damages. The Court of Appeals affirmed, rejecting
petitioners' contention that the "actual malice" standard of New York Times Co. v.
Sullivan, 376 U.S. 254, must be met before respondent can recover for emotional
distress. Rejecting as irrelevant the contention that, because the jury found that the
parody did not describe actual facts, the ad was an opinion protected by the First
Amendment to the Federal Constitution, the court ruled that the issue was whether
the ad's publication was sufficiently outrageous to constitute intentional infliction of
emotional distress.
Held: In order to protect the free flow of ideas and opinions on matters of public
interest and concern, the First and Fourteenth Amendments prohibit public figures
and public officials from recovering damages for the tort of intentional infliction of
emotional distress by reason of the publication of a caricature such as the ad parody
at issue without showing in addition that the publication contains a false statement
of fact which was made with "actual malice," i.e., with knowledge that the statement
was false or with reckless disregard as to whether or not it was true. The State's
interest in protecting public figures from emotional distress is not sufficient to deny
First Amendment protection to speech that is patently offensive and is intended to
inflict emotional injury when that speech could not reasonably have been
interpreted as stating actual facts about the public figure involved. Here, respondent
is clearly a "public figure" for First Amendment purposes, and the lower courts'
finding that the ad parody was not reasonably believable must be accepted.
"Outrageousness" [p47] in the area of political and social discourse has an inherent
subjectiveness about it which would allow a jury to impose liability on the basis of
the jurors' tastes or views, or perhaps on the basis of their dislike of a particular
expression, and cannot, consistently with the First Amendment, form a basis for the
award of damages for conduct such as that involved here. Pp. 50-57.
797 F.2d 1270, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL,
BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. WHITE, J., filed an opinion
concurring in the judgment, post, p. 57. KENNEDY, J., took no part in the
consideration or decision of the case.
REHNQUIST, C.J., Opinion of the Court
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation.
Respondent Jerry Falwell, a nationally known minister who has been active as a
commentator on politics and public affairs, sued petitioner and its publisher,
petitioner Larry Flynt, to recover damages for invasion of [p48] privacy, libel, and
intentional infliction of emotional distress. The District Court directed a verdict
against respondent on the privacy claim, and submitted the other two claims to a
jury. The jury found for petitioners on the defamation claim, but found for
respondent on the claim for intentional infliction of emotional distress and awarded
damages. We now consider whether this award is consistent with the First and
Fourteenth Amendments of the United States Constitution.
The inside front cover of the November, 1983, issue of Hustler Magazine featured a
"parody" of an advertisement for Campari Liqueur that contained the name and
picture of respondent and was entitled "Jerry Falwell talks about his first time." This
parody was modeled after actual Campari ads that included interviews with various
celebrities about their "first times." Although it was apparent by the end of each
interview that this meant the first time they sampled Campari, the ads clearly
played on the sexual double entendre of the general subject of "first times." Copying
the form and layout of these Campari ads, Hustler's editors chose respondent as the
featured celebrity and drafted an alleged "interview" with him in which he states
that his "first time" was during a drunken incestuous rendezvous with his mother in
an outhouse. The Hustler parody portrays respondent and his mother as drunk and
immoral, and suggests that respondent is a hypocrite who preaches only when he is
drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad
parody -- not to be taken seriously." The magazine's table of contents also lists the
ad as "Fiction; Ad and Personality Parody."
Soon after the November issue of Hustler became available to the public,
respondent brought this diversity action in the United States District Court for the
Western District of Virginia against Hustler Magazine, Inc., Larry C. Flynt, and Flynt
Distributing Co., Inc. Respondent stated in his complaint that publication of the ad
parody in Hustler entitled [p49] him to recover damages for libel, invasion of
privacy, and intentional infliction of emotional distress. The case proceeded to trial.
[n1] At the close of the evidence, the District Court granted a directed verdict for
petitioners on the invasion of privacy claim. The jury then found against respondent
on the libel claim, specifically finding that the ad parody could not "reasonably be
understood as describing actual facts about [respondent] or actual events in which
[he] participated." App. to Pet. for Cert. C1. The jury ruled for respondent on the
intentional infliction of emotional distress claim, however, and stated that he should
be awarded $100,000 in compensatory damages, as well as $50,000 each in
punitive damages from petitioners. [n2] Petitioners' motion for judgment
notwithstanding the verdict was denied.
On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the
judgment against petitioners. Falwell v. Flynt, 797 F.2d 1270 (1986). The court
rejected petitioners' argument that the "actual malice" standard of New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), must be met before respondent can recover for
emotional distress. The court agreed that, because respondent is concededly a
public figure, petitioners are "entitled to the same level of first amendment
protection in the claim for intentional infliction of emotional distress that they
received in [respondent's] claim for libel." 797 F.2d at 1274. But this does not mean
that a literal application of the actual malice rule is appropriate in the context of an
emotional distress claim. In the court's view, the New York Times decision
emphasized the constitutional importance not of the falsity of the statement or the
defendant's disregard for the truth, but of the heightened level of culpability
embodied in the requirement of "knowing . . . or reckless" conduct. Here, the New
York [p50] Times standard is satisfied by the state law requirement, and the jury's
finding, that the defendants have acted intentionally or recklessly. [n3] The Court of
Appeals then went on to reject the contention that, because the jury found that the
ad parody did not describe actual facts about respondent, the ad was an opinion
that is protected by the First Amendment. As the court put it, this was "irrelevant,"
as the issue is "whether [the ad's] publication was sufficiently outrageous to
constitute intentional infliction of emotional distress." Id. at 1276. [n4] Petitioners
then filed a petition for rehearing en banc, but this was denied by a divided court.
Given the importance of the constitutional issues involved, we granted certiorari.
480 U.S. 945 (1987).
This case presents us with a novel question involving First Amendment limitations
upon a State's authority to protect its citizens from the intentional infliction of
emotional distress. We must decide whether a public figure may recover damages
for emotional harm caused by the publication of an ad parody offensive to him, and
doubtless gross and repugnant in the eyes of most. Respondent would have us find
that a State's interest in protecting public figures from emotional distress is
sufficient to deny First Amendment protection to speech that is patently offensive
and is intended to inflict emotional injury, even when that speech could not
reasonably have been interpreted as stating actual facts about the public figure
involved. This we decline to do.
At the heart of the First Amendment is the recognition of the fundamental
importance of the free flow of ideas and opinions on matters of public interest and
concern.
[T]he [p51] freedom to speak one's mind is not only an aspect of individual liberty --
and thus a good unto itself -- but also is essential to the common quest for truth and
the vitality of society as a whole.
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-504 (1984).
We have therefore been particularly vigilant to ensure that individual expressions of
ideas remain free from governmentally imposed sanctions. The First Amendment
recognizes no such thing as a "false" idea. Gertz v. Robert Welch, Inc., 418 U.S. 323,
339 (1974). As Justice Holmes wrote,
when men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas -- that the best
test of truth is the power of the thought to get itself accepted in the competition of
the market. . . .
Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).
The sort of robust political debate encouraged by the First Amendment is bound to
produce speech that is critical of those who hold public office or those public figures
who are
intimately involved in the resolution of important public questions or, by reason of
their fame, shape events in areas of concern to society at large.
Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U.S. 130,
164 (1967) (Warren, C.J., concurring in result). Justice Frankfurter put it succinctly in
Baumgartner v. United States, 322 U.S. 665, 673-674 (1944), when he said that
"[o]ne of the prerogatives of American citizenship is the right to criticize public men
and measures." Such criticism, inevitably, will not always be reasoned or moderate;
public figures as well as public officials will be subject to "vehement, caustic, and
sometimes unpleasantly sharp attacks," New York Times, supra, at 270.
[T]he candidate who vaunts his spotless record and sterling integrity cannot
convincingly cry "Foul!" when an opponent or an industrious reporter attempts [p52]
to demonstrate the contrary.
Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971).
Of course, this does not mean that any speech about a public figure is immune from
sanction in the form of damages. Since New York Times Co. v. Sullivan, 376 U.S. 254
(1964), we have consistently ruled that a public figure may hold a speaker liable for
the damage to reputation caused by publication of a defamatory falsehood, but only
if the statement was made "with knowledge that it was false or with reckless
disregard of whether it was false or not." Id. at 279-280. False statements of fact are
particularly valueless; they interfere with the truthseeking function of the
marketplace of ideas, and they cause damage to an individual's reputation that
cannot easily be repaired by counterspeech, however persuasive or effective. See
Gertz, 418 U.S. at 340, 344, n. 9. But even though falsehoods have little value in and
of themselves, they are "nevertheless inevitable in free debate," id. at 340, and a
rule that would impose strict liability on a publisher for false factual assertions would
have an undoubted "chilling" effect on speech relating to public figures that does
have constitutional value. "Freedoms of expression require "breathing space."'"
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772 (1986) (quoting New York
Times, supra, at 272). This breathing space is provided by a constitutional rule that
allows public figures to recover for libel or defamation only when they can prove
both that the statement was false and that the statement was made with the
requisite level of culpability.
Respondent argues, however, that a different standard should apply in this case
because, here, the State seeks to prevent not reputational damage, but the severe
emotional distress suffered by the person who is the subject of an offensive
publication. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)
(ruling that the "actual malice" standard does not apply to the tort of appropriation
of a right of publicity). In respondent's view, and in the view of the [p53] Court of
Appeals, so long as the utterance was intended to inflict emotional distress, was
outrageous, and did in fact inflict serious emotional distress, it is of no constitutional
import whether the statement was a fact or an opinion, or whether it was true or
false. It is the intent to cause injury that is the gravamen of the tort, and the State's
interest in preventing emotional harm simply outweighs whatever interest a speaker
may have in speech of this type.
Generally speaking, the law does not regard the intent to inflict emotional distress
as one which should receive much solicitude, and it is quite understandable that
most, if not all, jurisdictions have chosen to make it civilly culpable where the
conduct in question is sufficiently "outrageous." But in the world of debate about
public affairs, many things done with motives that are less than admirable are
protected by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64 (1964), we
held that, even when a speaker or writer is motivated by hatred or ill-will, his
expression was protected by the First Amendment:
Debate on public issues will not be uninhibited if the speaker must run the risk that
it will be proved in court that he spoke out of hatred; even if he did speak out of
hatred, utterances honestly believed contribute to the free interchange of ideas and
the ascertainment of truth.
Id. at 73. Thus, while such a bad motive may be deemed controlling for purposes of
tort liability in other areas of the law, we think the First Amendment prohibits such a
result in the area of public debate about public figures.
Were we to hold otherwise, there can be little doubt that political cartoonists and
satirists would be subjected to damages awards without any showing that their work
falsely defamed its subject. Webster's defines a caricature as "the deliberately
distorted picturing or imitating of a person, literary style, etc. by exaggerating
features or mannerisms for satirical effect." Webster's New Unabridged Twentieth
[p54] Century Dictionary of the English Language 275 (2d ed.1979). The appeal of
the political cartoon or caricature is often based on exploitation of unfortunate
physical traits or politically embarrassing events -- an exploitation often calculated
to injure the feelings of the subject of the portrayal. The art of the cartoonist is often
not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed
the nature of the art in these words:
The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least
effective when it tries to pat some politician on the back. It is usually as welcome as
a bee sting, and is always controversial in some quarters.
Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill 56, 57
(Nov.1962). Several famous examples of this type of intentionally injurious speech
were drawn by Thomas Nast, probably the greatest American cartoonist to date, who
was associated for many years during the post-Civil War era with Harper's Weekly. In
the pages of that publication Nast conducted a graphic vendetta against William M.
"Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been
described by one historian of the subject as "a sustained attack which in its passion
and effectiveness stands alone in the history of American graphic art." M. Keller, The
Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success
of the Nast cartoon was achieved "because of the emotional impact of its
presentation. It continuously goes beyond the bounds of good taste and
conventional manners." C. Press, The Political Cartoon 251 (1981).

Despite their sometimes caustic nature, from the early cartoon portraying George
Washington as an ass down to the present day, graphic depictions and satirical
cartoons have played a prominent role in public and political debate. Nast's
castigation of the Tweed Ring, Walt McDougall's characterization of Presidential
candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The
Royal [p55] Feast of Belshazzar," and numerous other efforts have undoubtedly had
an effect on the course and outcome of contemporaneous debate. Lincoln's tall,
gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's
jutting jaw and cigarette holder have been memorialized by political cartoons with
an effect that could not have been obtained by the photographer or the portrait
artist. From the viewpoint of history, it is clear that our political discourse would
have been considerably poorer without them.
Respondent contends, however, that the caricature in question here was so
"outrageous" as to distinguish it from more traditional political cartoons. There is no
doubt that the caricature of respondent and his mother published in Hustler is at
best a distant cousin of the political cartoons described above, and a rather poor
relation at that. If it were possible by laying down a principled standard to separate
the one from the other, public discourse would probably suffer little or no harm. But
we doubt that there is any such standard, and we are quite sure that the pejorative
description "outrageous" does not supply one. "Outrageousness" in the area of
political and social discourse has an inherent subjectiveness about it which would
allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps
on the basis of their dislike of a particular expression. An "outrageousness" standard
thus runs afoul of our longstanding refusal to allow damages to be awarded because
the speech in question may have an adverse emotional impact on the audience. See
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) ("Speech does not lose
its protected character . . . simply because it may embarrass others or coerce them
into action"). And, as we stated in FCC v. Pacifica Foundation, 438 U.S. 726 (1978):
[T]he fact that society may find speech offensive is not a sufficient reason for
suppressing it. Indeed, if it is the speaker's opinion that gives offense, that
consequence is a reason for according it constitutional protection. [p56] For it is a
central tenet of the First Amendment that the government must remain neutral in
the marketplace of ideas.
Id. at 745-746. See also Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly
settled that . . . the public expression of ideas may not be prohibited merely because
the ideas are themselves offensive to some of their hearers").
Admittedly, these oft-repeated First Amendment principles, like other principles, are
subject to limitations. We recognized in Pacifica Foundation that speech that is
"vulgar,' offensive,' and shocking'" is "not entitled to absolute constitutional
protection under all circumstances." 438 U.S. at 747. In Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942), we held that a State could lawfully punish an
individual for the use of insulting "fighting' words -- those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace." Id. at
571-572. These limitations are but recognition of the observation in Dun &
Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985), that this
Court has "long recognized that not all speech is of equal First Amendment
importance." But the sort of expression involved in this case does not seem to us to
be governed by any exception to the general First Amendment principles stated
above.
We conclude that public figures and public officials may not recover for the tort of
intentional infliction of emotional distress by reason of publications such as the one
here at issue without showing, in addition, that the publication contains a false
statement of fact which was made with "actual malice," i.e., with knowledge that the
statement was false or with reckless disregard as to whether or not it was true. This
is not merely a "blind application" of the New York Times standard, see Time, Inc. v.
Hill, 385 U.S. 374, 390 (1967); it reflects our considered judgment that such a
standard is necessary to give adequate "breathing space" to the freedoms protected
by the First Amendment. [p57]
Here it is clear that respondent Falwell is a "public figure" for purposes of First
Amendment law. [n5] The jury found against respondent on his libel claim when it
decided that the Hustler ad parody could not "reasonably be understood as
describing actual facts about [respondent] or actual events in which [he]
participated." App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury's
finding to be that the ad parody "was not reasonably believable," 797 F.2d at 1278,
and, in accordance with our custom, we accept this finding. Respondent is thus
relegated to his claim for damages awarded by the jury for the intentional infliction
of emotional distress by "outrageous" conduct. But, for reasons heretofore stated,
this claim cannot, consistently with the First Amendment, form a basis for the award
of damages when the conduct in question is the publication of a caricature such as
the ad parody involved here. The judgment of the Court of Appeals is accordingly
Reversed. JUSTICE KENNEDY took no part in the consideration or decision of this
case.
[G.R. No. 118971. September 15, 1999]
RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL TRIAL
COURT OF MANILA, BRANCH 40, and THE PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N: MENDOZA, J.:
The question for determination in this case is the liability for libel of a citizen who
denounces a barangay official for misconduct in office. The Regional Trial Court of
Manila, Branch 40, found petitioner guilty and fined him P1,000.00 on the ground
that petitioner failed to prove the truth of the charges and that he was motivated by
vengeance in uttering the defamatory statement. On appeal, the Court of Appeals,
in a decision[1] dated February 1, 1995, affirmed. Hence, this petition for review.
The decision appealed from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo
Foreshore Area. Sometime in April 1986, he and some 37 families from the area
went to see then National Housing Authority (NHA) General Manager Lito Atienza
regarding their complaint against their Barangay Chairman, Jaime Olmedo. After
their meeting with Atienza and other NHA officials, petitioner and his companions
were met and interviewed by newspaper reporters at the NHA compound concerning
their complaint. The next day, April 22, 1986, the following news article[2] appeared
in the newspaper Ang Tinig ng Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya
sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,
Zone 6, Tondo Foreshore Area, sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na
umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan
ng mga barung-barung ng 38 pamilya.
Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga
survey ng NHA noong nakalipas na taon na may karapatan kami sa mga lupang ito
ng pamahalaan, ani Vasquez.
Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA,
sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya nakalusot ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa
mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok.
Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero
pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin
kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni
Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner
alleging that the latters statements cast aspersions on him and damaged his
reputation. After conducting preliminary investigation, the city prosecutor filed the
following information in the Regional Trial Court of Manila, Branch 40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as
follows:
That on or about April 22, 1986, in the city of Manila, Philippines, the said accused,
with malicious intent of impeaching the reputation and character of one Jaime
Olmedo, chairman of Barangay 66, Zone 6 in Tondo, Manila, and with evident intent
of exposing him to public hatred, contempt, ridicule, did then and there willfully,
unlawfully, feloniously and maliciously caused the publication of an article entitled
38 Pamilya Inagawan ng Lupa in Ang Tinig ng Masa, a daily newspaper sold to the
public and of general circulation in the Philippines in its April 22, 1986 issue, which
portion of the said article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya
sa Tondo Foreshore Area na umanoy inagawan ng lupa ng kanilang barangay
chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul
1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66,
Zone 6, Tondo Foreshore Area sa mga project manager ng NHA upang makamkam
ang may 14 na lote ng lupa sa naturang lugar.
x x x Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa
ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng
NHA, sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila,
MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang barangay chairman
kaya nakalusot ang mga ginawa nitong katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa
mga ilegal na pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x
xx
with which statements, the said accused meant and intended to convey, as in fact
he did mean and convey false and malicious imputations that said Jaime Olmedo is
engaged in landgrabbing and involved in illegal gambling and stealing of chickens at
the Tondo Foreshore Area, Tondo, Manila, which statements, as he well knew, were
entirely false and malicious, offensive and derogatory to the good name, character
and reputation of said Jaime Olmedo, thereby tending to impeach, besmirch and
destroy the honor, character and reputation of Jaime Olmedo, as in fact, the latter
was exposed to dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case
was tried. The prosecution presented Barangay Chairman Olmedo and his neighbor,
Florentina Calayag, as witnesses. On the other hand, the defense presented Ciriaco
Cabuhat, Nicasio Agustin, Estrelita Felix, Fernando Rodriguez all residents of the
Tondo Foreshore Area and petitioner as its witnesses.
On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel
and sentencing him to pay a fine of P1,000.00. On appeal, the Court of Appeals
affirmed in toto. Hence, this petition for review. Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
PINPOINTING PETITIONER AS THE SOURCE OF THE ALLEGED LIBELOUS ARTICLE.
II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT PETITIONER IMPUTED THE QUESTIONED ACTS TO COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT THAT THE ALLEGED IMPUTATIONS WERE MADE MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL
COURT WHICH FAILED TO APPRECIATE PETITIONERS DEFENSE OF TRUTH.
V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT
THAT ALL THE ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was unfairly singled out as the source of the statements in
the article when any member of the 38 complainant-families could have been the
source of the alleged libelous statements.[3] The reference is to the following
portion of the decision of the Court of Appeals:
. . . In his sworn statement, appellant admitted he was the source of the libelous
article (Exh. B). He affirmed this fact when he testified in open court as follows: That
his allegation on the act of landgrabbing by Olmedo was based on the alleged report
and pronouncements of the NHA representatives (p. 5, tsn, Oct. 18, 1989); that said
allegations were made by him before the local press people in the pursuit of fairness
and truthfulness and not in bad faith (pp. 8-9, id.); that the only inaccurate account
in the published article of Ang Tinig ng Masa is the reference to the 487.87 sq.m. lot,
on which Olmedos residence now stands, attributed by the reporter as the lot
currently occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15,
1989; pp. 4-5, tsn, January 15, 1990); and that after the interview, he never
expected that his statement would be the cause of the much-publicized libelous
article (pp. 4-6, tsn, Nov. 15, 1989).[4]
It is true petitioner did not directly admit that he was the source of the statements in
the questioned article. What he said in his sworn statement[5] was that the contents
of the article are true in almost all respects, thus:
9. Tama ang nakalathala sa pahayagang Ang Masa maliban na lang sa tinutukoy na
ako at ang mga kasamahang maralitang taga-lungsod ay nakatira sa humigit
kumulang 487.87 square meters sapagkat ang nabanggit na 487.87 square meters
ay siyang kinatitirikan ng bahay ni Barangay Chairman Olmedo kung saan nakaloob
ang anim na lote - isang paglabag sa batas o regulasyon ng NHA;
10. Ang ginawa kong pahayag na nailathala sa Ang Masa ay sanhi ng aking nais na
maging mabuting mamamayan at upang maituwid ang mga katiwaliang nagaganap
sa Tondo Foreshore Area kung saan ako at sampu ng aking mga kasamang
maralitang taga-lungsod ay apektado at naaapi.
This was likewise what he stated in his testimony in court both on direct[6] and on
cross-examination.[7] However, by claiming that what he had told the reporter was
made by him in the performance of a civic duty, petitioner in effect admitted
authorship of the article and not only of the statements attributed to him therein, to
wit:
Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni
Olmedo sa pakikipagsabwatan sa mga project manager at legal officers ng NHA,
sabi ni Vasquez.
. . . .Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon,
pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa
akin kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni
Vasquez.
Petitioner cannot claim to have been the source of only a few statements in the
article in question and point to the other parties as the source of the rest, when he
admits that he was correctly identified as the spokesperson of the families during
the interview.
Second. Petitioner points out that the information did not set out the entire news
article as published. In fact, the second statement attributed to petitioner was not
included in the information. But, while the general rule is that the information must
set out the particular defamatory words verbatim and as published and that a
statement of their substance is insufficient,[8] United States v. Eguia, 38 Phil. 857
(1918).8 a defect in this regard may be cured by evidence.[9] In this case, the article
was presented in evidence, but petitioner failed to object to its introduction. Instead,
he engaged in the trial of the entire article, not only of the portions quoted in the
information, and sought to prove it to be true. In doing so, he waived objection
based on the defect in the information. Consequently, he cannot raise this issue at
this late stage.[10]
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that
what he said was true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the
following elements must be proved: (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.[11]
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.[12]
There is publication if the material is communicated to a third person.[13] 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.[14]
On the other hand, to satisfy the element of identifiability, it must be shown that at
least a third person or a stranger was able to identify him as the object of the
defamatory statement.[15]
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code
provides:
Every defamatory imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in the performance of
any legal, moral or security duty; and
2. 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.
In this case, there is no doubt that the first three elements are present. The
statements that Olmedo, through connivance with NHA officials, was able to obtain
title to several lots in the area and that he was involved in a number of illegal
activities (attempted murder, gambling and theft of fighting cocks) were clearly
defamatory. There is no merit in his contention that landgrabbing, as charged in the
information, has a technical meaning in law.[16] Such act is so alleged and proven in
this case in the popular sense in which it is understood by ordinary people. As held
in United States v. Sotto:[17]
. . . [F]or the purpose of determining the meaning of any publication alleged to be
libelous that construction must be adopted which will give to the matter such a
meaning as is natural and obvious in the plain and ordinary sense in which the
public would naturally understand what was uttered. The published matter alleged
to be libelous must be construed as a whole. In applying these rules to the language
of an alleged libel, the court will disregard any subtle or ingenious explanation
offered by the publisher on being called to account. The whole question being the
effect the publication had upon the minds of the readers, and they not having been
assisted by the offered explanation in reading the article, it comes too late to have
the effect of removing the sting, if any there be, from the words used in the
publication.
Nor is there any doubt that the defamatory remarks referred to complainant and
were published. Petitioner caused the publication of the defamatory remarks when
he made the statements to the reporters who interviewed him.[18]
The question is whether from the fact that the statements were defamatory, malice
can be presumed so that it was incumbent upon petitioner to overcome such
presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement
is made against a public official with respect to the discharge of his official duties
and functions and the truth of the allegation is shown, the accused will be entitled to
an acquittal even though he does not prove that the imputation was published with
good motives and for justifiable ends.[19]
In this case, contrary to the findings of the trial court, on which the Court of Appeals
relied, petitioner was able to prove the truth of his charges against the barangay
official. His allegation that, through connivance with NHA officials, complainant was
able to obtain title to several lots at the Tondo Foreshore Area was based on the
letter[20] of NHA Inspector General Hermogenes Fernandez to petitioners counsel
which reads:
09 August 1983
Atty. Rene V. Sarmiento
Free Legal Assistance Group (FLAG)
55 Third Street
New Manila, Quezon City
Dear Atty. Sarmiento:
In connection with your request that you be furnished with a copy of the results of
the investigation regarding the complaints of some Tondo residents against
Chairman Jaime Olmedo, we are providing you a summary of the findings based on
the investigation conducted by our Office which are as follows:

1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedos present
structure is constructed on six lots which were awarded before by the defunct Land
Tenure Administration to different persons as follows:
Lot 4 - Juana Buenaventura - 79.76 sq. m.
Lot 6 - Servando Simbulan - 48.50 sq. m.
Lot 7 - Alfredo Vasquez - 78.07 sq. m.
Lot 8 - Martin Gallardo - 78.13 sq. m.
Lot 9 - Daniel Bayan - 70.87 sq. m.
Lot 1 - Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)
The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus
sold the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other
remaining lots were either sold to Mr. Olmedo and/or to his immediate relatives.
Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo,
with an area of 47.40 sq. m.
The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
2. Block 261, SB 8, Area III
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A
four-door apartment owned by Mr. Olmedo is being rented to uncensused residents.
3. Block 262, SB 8, Area III
Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not
yet titled.
4. Block 256, SB 5, Area III
Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is
erected on a non-titled lot. The adjacent lot is titled in the name of Victoria. It was
issued OCT No. 10217 with an area of 202.23 sq. m. Inside this compound is another
structure owned and occupied by Amelia Dofredo, a censused houseowner. The
titled lot of Victoria now has an area of 338.20 sq. m.
For your information.
(s/t) HERMOGENES C. FERNANDEZ
Inspector General
Public Assistance & Action Office
In addition, petitioner acted on the basis of two memoranda,[21] both dated
November 29, 1983, of then NHA General Manager Gaudencio Tobias recommending
the filing of administrative charges against the NHA officials responsible for the
alleged irregular consolidation of lots [in Tondo to Jaime and Victoria Olmedo.]
With regard to the other imputations made by petitioner against complainant, it
must be noted that what petitioner stated was that various charges (for attempted
murder against petitioner, gambling, theft of fighting cocks) had been filed by the
residents against their barangay chairman but these had all been dismissed.
Petitioner was able to show that Olmedos involvement in the theft of fighting cocks
was the subject of an affidavit-complaint,[22] dated October 19, 1983, signed by
Fernando Rodriguez and Ben Lareza, former barangay tanods of Barangay 66, Zone
6, Tondo. Likewise, petitioner presented a resolution,[23] dated March 10, 1988, of
the Office of the Special Prosecutor in TBP-87-03694, stating that charges of
malversation and corrupt practices had been filed against Olmedo and nine (9) other
barangay officials but the same were dismissed. Indeed, the prosecutions own
evidence bears out petitioners statements. The prosecution presented the
resolution[24]in TBP Case No. 84-01854 dismissing the charge of attempted murder
filed by petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The
allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner only tried to prove that the
complainant [barangay chairman] is guilty of the crimes alluded to; accused,
however, has not proven that the complainant committed the crimes. For that is not
what petitioner said as reported in the Ang Tinig ng Masa. The fact that charges had
been filed against the barangay official, not the truth of such charges, was the issue.
In denouncing the barangay chairman in this case, petitioner and the other residents
of the Tondo Foreshore Area were not only acting in their self-interest but engaging
in the performance of a civic duty to see to it that public duty is discharged faithfully
and well by those on whom such duty is incumbent. The recognition of this right and
duty of every citizen in a democracy is inconsistent with any requirement placing on
him the burden of proving that he acted with good motives and for justifiable ends.
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,[25] which this Court has cited with
approval in several of its own decisions.[26] This is the rule of actual malice. In this
case, the prosecution failed to prove not only that the charges made by petitioner
were false but also that petitioner made them with knowledge of their falsity or with
reckless disregard of whether they were false or not.
A rule placing on the accused the burden of showing the truth of allegations of
official misconduct and/or good motives and justifiable ends for making such
allegations would not only be contrary to Art. 361 of the Revised Penal Code. It
would, above all, infringe on the constitutionally guaranteed freedom of expression.
Such a rule would deter citizens from performing their duties as members of a self-
governing community. Without free speech and assembly, discussions of our most
abiding concerns as a nation would be stifled. As Justice Brandeis has said, public
discussion is a political duty and the greatest menace to freedom is an inert people.
[27]
Complainant contends that petitioner was actuated by vengeful political motive
rather than by his firm conviction that he and his fellow residents had been deprived
of a property right because of acts attributable to their barangay chairman. The
Court of Appeals, sustaining complainants contention, held:
That the said imputations were malicious may be inferred from the facts that
appellant and complainant are enemies, hence, accused was motivated by
vengeance in uttering said defamatory statements and that accused is a leader of
Ciriaco Cabuhat who was defeated by complainant when they ran for the position of
barangay captain. . . .[28]
As already stated, however, in accordance with Art. 361, if the defamatory matter
either constitutes a crime or concerns the performance of official duties, and the
accused proves the truth of his charge, he should be acquitted.[29]
Instead of the claim that petitioner was politically motivated in making the charges
against complainant, it would appear that complainant filed this case to harass
petitioner. Art. 360 of the Revised Penal Code provides:
Persons responsible.Any person who shall publish, exhibit, or cause the publication
or exhibition of any defamation in writing or by similar means, shall be responsible
for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a
daily newspaper, magazine or serial publication, shall be responsible for the
defamations contained therein to the same extent as if he were the author
thereof. . . .

Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was
charged in court. What was said in an analogous case[30] may be applied mutatis
mutandis to the case at bar:
It is curious that the ones most obviously responsible for the publication of the
allegedly offensive news report, namely, the editorial staff and the periodical itself,
were not at all impleaded. The charge was leveled against the petitioner and,
curiouser still, his clients who have nothing to do with the editorial policies of the
newspaper. There is here a manifest effort to persecute and intimidate the petitioner
for his temerity in accusing the ASAC agents who apparently enjoyed special
privilegesand perhaps also immunitiesduring those oppressive times. The non-
inclusion of the periodicals was a transparent hypocrisy, an ostensibly pious if not at
all convincing pretense of respect for freedom of expression that was in fact one of
the most desecrated liberties during the past despotism.[31]
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is
ACQUITTED of the crime charged. SO ORDERED.
EN BANC: G.R. No. L-63559 May 30, 1986
NEWSWEEK, INC., petitioner,
vs.
THE INTERMEDIATE APPELLATE COURT, and NATIONAL FEDERATION OF
SUGARCANE PLANTERS INC., BINALBAGAN-ISABELA PLANTERS ASSOCIATION, INC.,
ASOCIACION DE AGRICULTORES DE LA CARLOTA, LA CASTELLANA y PONTEVEDRA,
INC., DONEDCO PLANTERS ASSOCIATION INC., ARMANDO GUSTILO, ENRIQUE ROJAS,
ALFREDO MONTELIBANO, JR., PABLO SOLA, JOSE MONTALVO, VICENTE GUSTILO,
JOSEPH MARANON, ROBERTO CUENCA, JOSE SICANGCO, FLORENCIO ALONSO,
MIGUEL GATUSLAO, PEDRO YULO, MARINO RUBIN and BENJAMIN BAUTISTA,
respondents.
San Juan, Africa, Gonzales & San Agustin Law Offices for private respondents.
FERIA, J.:
Petitioner, Newsweek, Inc., a foreign corporation licensed to do business in the
Philippines, in this special action for certiorari, prohibition with preliminary
injunction, seeks to annul the decision of the Intermediate Appellate Court dated
December 17, 1982 sustaining the Order of the then Court of First Instance of
Bacolod City which denied petitioner's Motion to Dismiss the complaint for libel filed
by private respondents (Civil Case No. 15812), and the Resolution dated March 10,
1983 which denied its Motion for Reconsideration.
It appears that on March 5, 1981, private respondents, incorporated associations of
sugarcane planters in Negros Occidental claiming to have 8,500 members and
several individual sugar planters, filed Civil Case No. 15812 in their own behalf
and/or as a class suit in behalf of all sugarcane planters in the province of Negros
Occidental, against petitioner and two of petitioners' non-resident
correspondents/reporters Fred Bruning and Barry Came. The complaint alleged that
petitioner and the other defendants committed libel against them by the publication
of the article "An Island of Fear" in the February 23, 1981 issue of petitioner's weekly
news magazine Newsweek. The article supposedly portrayed the island province of
Negros Occidental as a place dominated by big landowners or sugarcane planters
who not only exploited the impoverished and underpaid sugarcane workers/laborers,
but also brutalized and killed them with imprunity. Complainants therein alleged that
said article, taken as a whole, showed a deliberate and malicious use of falsehood,
slanted presentation and/or misrepresentation of facts intended to put them
(sugarcane planters) in bad light, expose them to public ridicule, discredit and
humiliation here in the Philippines and abroad, and make them objects of hatred,
contempt and hostility of their agricultural workers and of the public in general. They
prayed that defendants be ordered to pay them PlM as actual and compensatory
damages, and such amounts for moral, exemplary and corrective damages as the
court may determine, plus expenses of litigation, attorney's fees and costs of suit. A
photo copy of the article was attached to the complaint.
On November 5, 1981, petitioner filed a motion to dismiss on the grounds that (1)
the printed article sued upon is not actionable in fact and in law; and (2) the
complaint is bereft of allegations that state, much less support a cause of action. It
pointed out the non-libelous nature of the article and, consequently, the failure of
the complaint to state a cause of action. Private respondents filed an Opposition to
the motion to dismiss and petitioner filed a reply.
On March 17, 1982, the trial court denied the motion to dismiss, stating that the
grounds on which the motion to dismiss are predicated are not indubitable as the
complaint on its face states a valid cause of action; and the question as to whether
the printed article sued upon its actionable or not is a matter of evidence.
Petitioner's motion for reconsideration was denied on May 28, 1982.
On June 18, 1982, petitioner filed a petition for certiorari with respondent Court (CA-
G. R. No. 14406) seeking the annulment of the aforecited trial court's Orders for
having been issued with such a grave abuse of discretion as amounting to lack of
jurisdiction and praying for the dismissal of the complaint for failure to state a cause
of action.
As earlier stated, respondent Court affirmed the trial court's Orders in a Decision
dated December 17, 1982 and ordered the case to be tried on the merits on the
grounds that -(1) the complaint contains allegations of fact which called for the
presentation of evidence; and (2) certiorari under Rule 65 cannot be made to
substitute for an appeal where an appeal would lie at a proper time. Subsequently,
on March 10, 1983, the respondent Court denied petitioner's Motion for
Reconsideration of the aforesaid decision, hence this petition.
The proper remedy which petitioner should have taken from the decision of
respondent Court is an appeal by certiorari under Rule 45 of the Rules of Court and
not the special civil action of certiorari and prohibition under Rule 65 of said Rules.
However, since the petition was filed on time within fifteen days from notice of the
Resolution denying the motion for reconsideration, we shall treat the same as a
petition for review on certiorari. The two (2) issues raised in the petition are: (1)
whether or not the private respondents' complaint failed to state a cause of action;
and (2) whether or not the petition for certiorari and prohibition is proper to question
the denial of a motion to dismiss for failure to state a cause of action.
First, petitioner argues that private respondents' complaint failed to state a cause of
action because the complaint made no allegation that anything contained in the
article complained of regarding sugarcane planters referred specifically to any one of
the private respondents; that libel can be committed only against individual
reputation; and that in cases where libel is claimed to have been directed at a group,
there is actionable defamation only if the libel can be said to reach beyond the mere
collectivity to do damage to a specific, individual group member's reputation.
We agree with petitioner.
In the case of Corpus vs. Cuaderno, Sr. (16 SCRA 807) this Court ruled that "in order
to maintain a libel suit, it is essential that the victim be identifiable (People vs.
Monton, L-16772, November 30, 1962), although it is not necessary that he be
named (19 A.L.R. 116)." In an earlier case, this Court declared that" ... defamatory
matter which does not reveal the Identity of the person upon whom the imputation
is cast, affords no ground of action unless it be shown that the readers of the libel
could have Identified the personality of the individual defamed." (Kunkle vs.
Cablenews-American and Lyons 42 Phil. 760).
This principle has been recognized to be of vital importance, especially where a
group or class of persons, as in the case at bar, claim to have been defamed, for it is
evident that the larger the collectivity, the more difficult it is for the individual
member to prove that the defamatory remarks apply to him. (Cf. 70 ALR 2d. 1384).
In the case of Uy Tioco vs. Yang Shu Wen , 32 Phil. 624, this Court held as follows:
Defamatory remarks directed at a class or group of persons in general language
only, are not actionable by individuals composing the class or group unless the
statements are sweeping; and it is very probable that even then no action would lie
where the body is composed of so large a number of persons that common sense
would tell those to whom the publication was made that there was room for persons
connected with the body to pursue an upright and law abiding course and that it
would be unreasonable and absurd to condemn all because of the actions of a part.
(supra p. 628).
It is evident from the above ruling that where the defamation is alleged to have
been directed at a group or class, it is essential that the statement must be so
sweeping or all-embracing as to apply to every individual in that group or class, or
sufficiently specific so that each individual in the class or group can prove that the
defamatory statement specifically pointed to him, so that he can bring the action
separately, if need be.
We note that private respondents filed a "class suit" in representation of all the
8,500 sugarcane planters of Negros Occidental. Petitioner disagrees and argues that
the absence of any actionable basis in the complaint cannot be cured by the filing of
a class suit on behalf of the aforesaid sugar planters.
We find petitioner's contention meritorious.
The case at bar is not a class suit. It is not a case where one or more may sue for the
benefit of all (Mathay vs. Consolidated Bank and Trust Company, 58 SCRA 559) or
where the representation of class interest affected by the judgment or decree is
indispensable to make each member of the class an actual party (Borlaza vs.
Polistico, 47 Phil. 348). We have here a case where each of the plaintiffs has a
separate and distinct reputation in the community. They do not have a common or
general interest in the subject matter of the controversy.
The disputed portion of the article which refers to plaintiff Sola and which was
claimed to be libelous never singled out plaintiff Sola as a sugar planter. The news
report merely stated that the victim had been arrested by members of a special
police unit brought into the area by Pablo Sola, the mayor of Kabankalan. Hence, the
report, referring as it does to an official act performed by an elective public official,
is within the realm of privilege and protected by the constitutional guarantees of
free speech and press.
The article further stated that Sola and the commander of the special police unit
were arrested. The Court takes judicial notice of this fact. (People vs. Sola, 103 SCRA
393.)
The second issue to be resolved here is whether or not the special civil action of
certiorari or prohibition is available to petitioner whose motion to dismiss the
complaint and subsequent motion for reconsideration were denied.
As a general rule, an order denying a motion to dismiss is merely interlocutory and
cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule
4 1). The ordinary procedure to be followed in such a case is to file an answer, go to
trial and if the decision is adverse, reiterate the issue on appeal from the final
judgment. The same rule applies to an order denying a motion to quash, except that
instead of filing an answer a plea is entered and no appeal lies from a judgment of
acquittal.
This general rule is subject to certain exceptions. If the court, in denying the motion
to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave
abuse of discretion, then certiorari or prohibition lies. The reason is that it would be
unfair to require the defendant or accused to undergo the ordeal and expense of a
trial if the court has no jurisdiction over the subject matter or offense, or is not the
court of proper venue, or if the denial of the motion to dismiss or motion to quash is
made with grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be plain and
adequate. The following are a few examples of the exceptions to the general rule.
In De Jesus vs. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based
on lack of jurisdiction over the subject matter, this Court granted the petition for
certiorari and prohibition against the City Court of Manila and directed the
respondent court to dismiss the case.
In Lopez vs. City Judge (18 SCRA 616), upon the denial of a motion to quash based
on lack of jurisdiction over the offense, this Court granted the petition for prohibition
and enjoined the respondent court from further proceeding in the case.
In Enriquez vs. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss
based on improper venue, this Court granted the petition for prohibition and
enjoined the respondent judge from taking cognizance of the case except to dismiss
the same.
In Manalo vs. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on
bar by prior judgment, this Court granted the petition for certiorari and directed the
respondent judge to dismiss the case.
In Yuviengco vs. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss
based on the Statute of Frauds, this Court granted the petition for certiorari and
dismissed the amended complaint.
In Tacas vs. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after
the motion to quash based on double jeopardy was denied by respondent judge and
ordered him to desist from further action in the criminal case except to dismiss the
same.
In People vs. Ramos (83 SCRA 11), the order denying the motion to quash based on
prescription was set aside on certiorari and the criminal case was dismissed by this
Court.
Respondent Court correctly stated the general rule and its exceptions. However, it
ruled that none of the exceptions is present in the case at bar and that the case
appears complex and complicated, necessitating a full-blown trial to get to the
bottom of the controversy.
Petitioner's motion to dismiss is based on the ground that the complaint states no
cause of action against it by pointing out the non-libelous nature of the article sued
upon. There is no need of a trial in view of the conclusion of this Court that the
article in question is not libelous. The specific allegation in the complaint, to the
effect that the article attributed to the sugarcane planters the deaths and
brutalization of sugarcane workers, is not borne out by a perusal of the actual text.
The complaint contains a recital of the favorable working conditions of the
agricultural workers in the sugar industry and the various foundations and programs
supported by planters' associations for the benefit of their workers. Undoubtedly,
the statements in the article in question are sweeping and exaggerated; but,
paraphrasing the ruling in the Uy Tioco case above quoted, it would be unreasonable
and absurd to condemn the majority of the sugarcane planters, who have at heart
the welfare of their workers, because of the actions of a part. Nonetheless, articles
such as the one in question may also serve to prick the consciences of those who
have but are not doing anything or enough for those who do not have.
On the other hand, petitioner would do well to heed the admonition of the President
to media that they should check the sources of their information to ensure the
publication of the truth. Freedom of the press, like all freedoms, should be exercised
with responsibility.
WHEREFORE, the decision of the Intermediate Appellate Court is reversed and the
complaint in Civil Case No. 15812 of the Court of First Instance of Negros Occidental
is dismissed, without pronouncement as to costs. SO ORDERED.
G.R. No. 135306 January 28, 2003
MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and
AGUSTINO G. BINEGAS, JR., petitioners,
vs.ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN
R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED
DA SILVA and IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall fight to the death to make it possible
for you to continue writing it.
Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech
and free press liberties that belong as well, if not more, to those who question,
who do not conform, who differ. For the ultimate good which we all strive to achieve
for ourselves and our posterity can better be reached by a free exchange of ideas,
where the best test of truth is the power of the thought to get itself accepted in the
competition of the free market not just the ideas we desire, but including those
thoughts we despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than
seventy (70) Muslim religious organizations, and individual Muslims ABDULRAHMAN
R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA
and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of Manila a complaint for
damages in their own behalf and as a class suit in behalf of the Muslim members
nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA
and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August
1992 issue of Bulgar, a daily tabloid. The article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng
mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin
kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa
nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin
lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."
The complaint alleged that the libelous statement was insulting and damaging to the
Muslims; that these words alluding to the pig as the God of the Muslims was not only
published out of sheer ignorance but with intent to hurt the feelings, cast insult and
disparage the Muslims and Islam, as a religion in this country, in violation of law,
public policy, good morals and human relations; that on account of these libelous
words Bulgar insulted not only the Muslims in the Philippines but the entire Muslim
world, especially every Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense,
contended that the article did not mention respondents as the object of the article
and therefore were not entitled to damages; and, that the article was merely an
expression of belief or opinion and was published without malice nor intention to
cause damage, prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs
failed to establish their cause of action since the persons allegedly defamed by the
article were not specifically identified
It must be noted that the persons allegedly defamed, the herein plaintiffs, were not
identified with specificity. The subject article was directed at the Muslims without
mentioning or identifying the herein plaintiffs x x x. It is thus apparent that the
alleged libelous article refers to the larger collectivity of Muslims for which the
readers of the libel could not readily identify the personalities of the persons
defamed. Hence, it is difficult for an individual Muslim member to prove that the
defamatory remarks apply to him. The evidence presented in this case failed to
convince this court that, indeed, the defamatory remarks really applied to the herein
plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It
opined that it was "clear from the disputed article that the defamation was directed
to all adherents of the Islamic faith. It stated that pigs were sacred and idolized as
god by members of the Muslim religion. This libelous imputation undeniably applied
to the plaintiff-appellants who are Muslims sharing the same religious beliefs." It
added that the suit for damages was a "class suit" and that ISLAMIC DA'WAH
COUNCIL OF THE PHILIPPINES, INC.'s religious status as a Muslim umbrella
organization gave it the requisite personality to sue and protect the interests of all
Muslims.4
Hence, the instant petition for review assailing the findings of the appellate court (a)
on the existence of the elements of libel, (b) the right of respondents to institute the
class suit, and, (c) the liability of petitioners for moral damages, exemplary
damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring a
person's character, fame or reputation through false and malicious statements.5 It is
that which tends to injure reputation or to diminish the esteem, respect, good will or
confidence in the plaintiff or to excite derogatory feelings or opinions about the
plaintiff.6 It is the publication of anything which is injurious to the good name or
reputation of another or tends to bring him into disrepute.7 Defamation is an
invasion of a relational interest since it involves the opinion which others in the
community may have, or tend to have, of the plaintiff.8
It must be stressed that words which are merely insulting are not actionable as libel
or slander per se, and mere words of general abuse however opprobrious, ill-
natured, or vexatious, whether written or spoken, do not constitute a basis for an
action for defamation in the absence of an allegation for special damages.9 The fact
that the language is offensive to the plaintiff does not make it actionable by itself.10
Declarations made about a large class of people cannot be interpreted to advert to
an identified or identifiable individual. Absent circumstances specifically pointing or
alluding to a particular member of a class, no member of such class has a right of
action11 without at all impairing the equally demanding right of free speech and
expression, as well as of the press, under the Bill of Rights.12 Thus, in Newsweek,
Inc. v. Intermediate Appellate Court,13 we dismissed a complaint for libel against
Newsweek, Inc., on the ground that private respondents failed to state a cause of
action since they made no allegation in the complaint that anything contained in the
article complained of specifically referred to any of them. Private respondents,
incorporated associations of sugarcane planters in Negros Occidental claiming to
have 8,500 members and several individual members, filed a class action suit for
damages in behalf of all sugarcane planters in Negros Occidental. The complaint
filed in the Court of First Instance of Bacolod City alleged that Newsweek, Inc.,
committed libel against them by the publication of the article "Island of Fear" in its
weekly newsmagazine allegedly depicting Negros Province as a place dominated by
wealthy landowners and sugar planters who not only exploited the impoverished
and underpaid sugarcane workers but also brutalized and killed them with impunity.
Private respondents alleged that the article showed a deliberate and malicious use
of falsehood, slanted presentation and/or misrepresentation of facts intended to put
the sugarcane planters in a bad light, expose them to public ridicule, discredit and
humiliation in the Philippines and abroad, and make them the objects of hatred,
contempt and hostility of their agricultural workers and of the public in general. We
ratiocinated
x x x where the defamation is alleged to have been directed at a group or class, it is
essential that the statement must be so sweeping or all-embracing as to apply to
every individual in that group or class, or sufficiently specific so that each individual
in the class or group can prove that the defamatory statement specifically pointed to
him, so that he can bring the action separately, if need be x x x x The case at bar is
not a class suit. It is not a case where one or more may sue for the benefit of all, or
where the representation of class interest affected by the judgment or decree is
indispensable to make each member of the class an actual party. We have here a
case where each of the plaintiffs has a separate and distinct reputation in the
community. They do not have a common or general interest in the subject matter of
the controversy.
In the present case, there was no fairly identifiable person who was allegedly injured
by the Bulgar article. Since the persons allegedly defamed could not be identifiable,
private respondents have no individual causes of action; hence, they cannot sue for
a class allegedly disparaged. Private respondents must have a cause of action in
common with the class to which they belong to in order for the case to prosper.
An individual Muslim has a reputation that is personal, separate and distinct in the
community. Each Muslim, as part of the larger Muslim community in the Philippines
of over five (5) million people, belongs to a different trade and profession; each has
a varying interest and a divergent political and religious view some may be
conservative, others liberal. A Muslim may find the article dishonorable, even
blasphemous; others may find it as an opportunity to strengthen their faith and
educate the non-believers and the "infidels." There is no injury to the reputation of
the individual Muslims who constitute this community that can give rise to an action
for group libel. Each reputation is personal in character to every person. Together,
the Muslims do not have a single common reputation that will give them a common
or general interest in the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company,14 the United States Court of
Appeals held that one guiding principle of group libel is that defamation of a large
group does not give rise to a cause of action on the part of an individual unless it
can be shown that he is the target of the defamatory matter.
The rule on libel has been restrictive. In an American case,15 a person had allegedly
committed libel against all persons of the Jewish religion. The Court held that there
could be no libel against an extensive community in common law. In an English case,
where libel consisted of allegations of immorality in a Catholic nunnery, the Court
considered that if the libel were on the whole Roman Catholic Church generally, then
the defendant must be absolved.16 With regard to the largest sectors in society,
including religious groups, it may be generally concluded that no criminal action at
the behest of the state, or civil action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering more than 600
million, were defamed by the airing of a national television broadcast of a film
depicting the public execution of a Saudi Arabian princess accused of adultery, and
alleging that such film was "insulting and defamatory" to the Islamic religion.17 The
United States District Court of the Northern District of California concluded that the
plaintiffs' prayer for $20 Billion in damages arising from "an international conspiracy
to insult, ridicule, discredit and abuse followers of Islam throughout the world, Arabs
and the Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the
plaintiffs had failed to demonstrate an actionable claim for defamation. The
California Court stressed that the aim of the law on defamation was to protect
individuals; a group may be sufficiently large that a statement concerning it could
not defame individual group members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"19
discusses the inappropriateness of any action for tortious libel involving large
groups, and provides a succinct illustration:
There are groupings which may be finite enough so that a description of the body is
a description of the members. Here the problem is merely one of evaluation. Is the
description of the member implicit in the description of the body, or is there a
possibility that a description of the body may consist of a variety of persons, those
included within the charge, and those excluded from it?
A general charge that the lawyers in the city are shysters would obviously not be a
charge that all of the lawyers were shysters. A charge that the lawyers in a local
point in a great city, such as Times Square in New York City, were shysters would
obviously not include all of the lawyers who practiced in that district; but a
statement that all of the lawyers who practiced in a particular building in that district
were shysters would be a specific charge, so that any lawyer having an office within
that building could sue.
If the group is a very large one, then the alleged libelous statement is considered to
have no application to anyone in particular, since one might as well defame all
mankind. Not only does the group as such have no action; the plaintiff does not
establish any personal reference to himself.20 At present, modern societal groups
are both numerous and complex. The same principle follows with these groups: as
the size of these groups increases, the chances for members of such groups to
recover damages on tortious libel become elusive. This principle is said to embrace
two (2) important public policies: first, where the group referred to is large, the
courts presume that no reasonable reader would take the statements as so literally
applying to each individual member; and second, the limitation on liability would
satisfactorily safeguard freedom of speech and expression, as well as of the press,
effecting a sound compromise between the conflicting fundamental interests
involved in libel cases.21
In the instant case, the Muslim community is too vast as to readily ascertain who
among the Muslims were particularly defamed. The size of the group renders the
reference as indeterminate and generic as a similar attack on Catholics, Protestants,
Buddhists or Mormons would do. The word "Muslim" is descriptive of those who are
believers of Islam, a religion divided into varying sects, such as the Sunnites, the
Shiites, the Kharijites, the Sufis and others based upon political and theological
distinctions. "Muslim" is a name which describes only a general segment of the
Philippine population, comprising a heterogeneous body whose construction is not
so well defined as to render it impossible for any representative identification.
The Christian religion in the Philippines is likewise divided into different sects:
Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other groups the essence
of which may lie in an inspired charlatan, whose temple may be a corner house in
the fringes of the countryside. As with the Christian religion, so it is with other
religions that represent the nation's culturally diverse people and minister to each
one's spiritual needs. The Muslim population may be divided into smaller groups
with varying agenda, from the prayerful conservative to the passionately radical.
These divisions in the Muslim population may still be too large and ambiguous to
provide a reasonable inference to any personality who can bring a case in an action
for libel.
The foregoing are in essence the same view scholarly expressed by Mr. Justice
Reynato S. Puno in the course of the deliberations in this case. We extensively
reproduce hereunder his comprehensive and penetrating discussion on group libel
Defamation is made up of the twin torts of libel and slander the one being, in
general, written, while the other in general is oral. In either form, defamation is an
invasion of the interest in reputation and good name. This is a "relational interest"
since it involves the opinion others in the community may have, or tend to have of
the plaintiff.
The law of defamation protects the interest in reputation the interest in acquiring,
retaining and enjoying one's reputation as good as one's character and conduct
warrant. The mere fact that the plaintiff's feelings and sensibilities have been
offended is not enough to create a cause of action for defamation. Defamation
requires that something be communicated to a third person that may affect the
opinion others may have of the plaintiff. The unprivileged communication must be
shown of a statement that would tend to hurt plaintiff's reputation, to impair
plaintiff's standing in the community.
Although the gist of an action for defamation is an injury to reputation, the focus of a
defamation action is upon the allegedly defamatory statement itself and its
predictable effect upon third persons. A statement is ordinarily considered
defamatory if it "tend[s] to expose one to public hatred, shame, obloquy, contumely,
odium, contempt, ridicule, aversion, ostracism, degradation or disgracex x x." The
Restatement of Torts defines a defamatory statement as one that "tends to so harm
the reputation of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him."
Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove
as part of his prima facie case that the defendant (1) published a statement that
was (2) defamatory (3) of and concerning the plaintiff.
The rule in libel is that the action must be brought by the person against whom the
defamatory charge has been made. In the American jurisdiction, no action lies by a
third person for damages suffered by reason of defamation of another person, even
though the plaintiff suffers some injury therefrom. For recovery in defamation cases,
it is necessary that the publication be "of and concerning the plaintiff." Even when a
publication may be clearly defamatory as to somebody, if the words have no
personal application to the plaintiff, they are not actionable by him. If no one is
identified, there can be no libel because no one's reputation has been injured x x x x
In fine, in order for one to maintain an action for an alleged defamatory statement, it
must appear that the plaintiff is the person with reference to whom the statement
was made. This principle is of vital importance in cases where a group or class is
defamed since, usually, the larger the collective, the more difficult it is for an
individual member to show that he was the person at whom the defamation was
directed.
If the defamatory statements were directed at a small, restricted group of persons,
they applied to any member of the group, and an individual member could maintain
an action for defamation. When the defamatory language was used toward a small
group or class, including every member, it has been held that the defamatory
language referred to each member so that each could maintain an action. This small
group or class may be a jury, persons engaged in certain businesses, professions or
employments, a restricted subdivision of a particular class, a society, a football
team, a family, small groups of union officials, a board of public officers, or
engineers of a particular company.
In contrast, if defamatory words are used broadly in respect to a large class or group
of persons, and there is nothing that points, or by proper colloquium or innuendo
can be made to apply, to a particular member of the class or group, no member has
a right of action for libel or slander. Where the defamatory matter had no special,
personal application and was so general that no individual damages could be
presumed, and where the class referred to was so numerous that great vexation and
oppression might grow out of the multiplicity of suits, no private action could be
maintained. This rule has been applied to defamatory publications concerning
groups or classes of persons engaged in a particular business, profession or
employment, directed at associations or groups of association officials, and to those
directed at miscellaneous groups or classes of persons.
Distinguishing a small group which if defamed entitles all its members to sue from
a large group which if defamed entitles no one to sue is not always so simple.
Some authorities have noted that in cases permitting recovery, the group generally
has twenty five (25) or fewer members. However, there is usually no articulated limit
on size. Suits have been permitted by members of fairly large groups when some
distinguishing characteristic of the individual or group increases the likelihood that
the statement could be interpreted to apply individually. For example, a single player
on the 60 to 70 man Oklahoma University football team was permitted to sue when
a writer accused the entire team of taking amphetamines to "hop up" its
performance; the individual was a fullback, i.e., a significant position on the team
and had played in all but two of the team's games.
A prime consideration, therefore, is the public perception of the size of the group
and whether a statement will be interpreted to refer to every member. The more
organized and cohesive a group, the easier it is to tar all its members with the same
brush and the more likely a court will permit a suit from an individual even if the
group includes more than twenty five (25) members. At some point, however,
increasing size may be seen to dilute the harm to individuals and any resulting injury
will fall beneath the threshold for a viable lawsuit.

x x x x There are many other groupings of men than those that are contained within
the foregoing group classifications. There are all the religions of the world, there are
all the political and ideological beliefs; there are the many colors of the human race.
Group defamation has been a fertile and dangerous weapon of attack on various
racial, religious and political minorities. Some states, therefore, have passed
statutes to prevent concerted efforts to harass minority groups in the United States
by making it a crime to circulate insidious rumors against racial and religious groups.
Thus far, any civil remedy for such broadside defamation has been lacking.
There have been numerous attempts by individual members to seek redress in the
courts for libel on these groups, but very few have succeeded because it felt that the
groups are too large and poorly defined to support a finding that the plaintiff was
singled out for personal attack x x x x (citations omitted).
Our conclusion therefore is that the statements published by petitioners in the
instant case did not specifically identify nor refer to any particular individuals who
were purportedly the subject of the alleged libelous publication. Respondents can
scarcely claim to having been singled out for social censure pointedly resulting in
damages.
A contrary view is expressed that what is involved in the present case is an
intentional tortious act causing mental distress and not an action for libel. That
opinion invokes Chaplinsky v. New Hampshire22 where the U.S. Supreme Court held
that words heaping extreme profanity, intended merely to incite hostility, hatred or
violence, have no social value and do not enjoy constitutional protection; and
Beauharnais v. Illinois23 where it was also ruled that hate speech which denigrates a
group of persons identified by their religion, race or ethnic origin defames that group
and the law may validly prohibit such speech on the same ground as defamation of
an individual.
We do not agree to the contrary view articulated in the immediately preceding
paragraph. Primarily, an "emotional distress" tort action is personal in nature, i.e., it
is a civil action filed by an individual24 to assuage the injuries to his emotional
tranquility due to personal attacks on his character. It has no application in the
instant case since no particular individual was identified in the disputed article of
Bulgar. Also, the purported damage caused by the article, assuming there was any,
falls under the principle of relational harm which includes harm to social
relationships in the community in the form of defamation; as distinguished from the
principle of reactive harm which includes injuries to individual emotional
tranquility in the form of an infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to the standing of Muslims in the
community, especially to their activities in propagating their faith in Metro Manila
and in other non-Muslim communities in the country.25 It is thus beyond cavil that
the present case falls within the application of the relational harm principle of tort
actions for defamation, rather than the reactive harm principle on which the concept
of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to recover for the intentional
infliction of emotional distress the plaintiff must show that: (a) The conduct of the
defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct
was extreme and outrageous; (c) There was a causal connection between the
defendant's conduct and the plaintiff's mental distress; and, (d) The plaintiff's
mental distress was extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in civilized society.
The defendant's actions must have been so terrifying as naturally to humiliate,
embarrass or frighten the plaintiff.27 Generally, conduct will be found to be
actionable where the recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him or her to exclaim,
"Outrageous!" as his or her reaction.28
"Emotional distress" means any highly unpleasant mental reaction such as extreme
grief, shame, humiliation, embarrassment, anger, disappointment, worry, nausea,
mental suffering and anguish, shock, fright, horror, and chagrin.29 "Severe
emotional distress," in some jurisdictions, refers to any type of severe and disabling
emotional or mental condition which may be generally recognized and diagnosed by
professionals trained to do so, including posttraumatic stress disorder, neurosis,
psychosis, chronic depression, or phobia.30 The plaintiff is required to show, among
other things, that he or she has suffered emotional distress so severe that no
reasonable person could be expected to endure it; severity of the distress is an
element of the cause of action, not simply a matter of damages.31
Any party seeking recovery for mental anguish must prove more than mere worry,
anxiety, vexation, embarrassment, or anger. Liability does not arise from mere
insults, indignities, threats, annoyances, petty expressions, or other trivialities. In
determining whether the tort of outrage had been committed, a plaintiff is
necessarily expected and required to be hardened to a certain amount of criticism,
rough language, and to occasional acts and words that are definitely inconsiderate
and unkind; the mere fact that the actor knows that the other will regard the
conduct as insulting, or will have his feelings hurt, is not enough.32
Hustler Magazine v. Falwell33 illustrates the test case of a civil action for damages
on intentional infliction of emotional distress. A parody appeared in Hustler
magazine featuring the American fundamentalist preacher and evangelist Reverend
Jerry Falwell depicting him in an inebriated state having an incestuous, sexual liaison
with his mother in an outhouse. Falwell sued Hustler and its publisher Larry Flynt for
damages. The United States District Court for the Western District of Virginia ruled
that the parody was not libelous, because no reasonable reader would have
understood it as a factual assertion that Falwell engaged in the act described. The
jury, however, awarded $200,000 in damages on a separate count of "intentional
infliction of emotional distress," a cause of action that did not require a false
statement of fact to be made. The United States Supreme Court in a unanimous
decision overturned the jury verdict of the Virginia Court and held that Reverend
Falwell may not recover for intentional infliction of emotional distress. It was argued
that the material might be deemed outrageous and may have been intended to
cause severe emotional distress, but these circumstances were not sufficient to
overcome the free speech rights guaranteed under the First Amendment of the
United States Constitution. Simply stated, an intentional tort causing emotional
distress must necessarily give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S. High Court as a
"public figure," he was an individual particularly singled out or identified in the
parody appearing on Hustler magazine. Also, the emotional distress allegedly
suffered by Reverend Falwell involved a reactive interest an emotional response
to the parody which supposedly injured his psychological well-being.
Verily, our position is clear that the conduct of petitioners was not extreme or
outrageous. Neither was the emotional distress allegedly suffered by respondents so
severe that no reasonable person could be expected to endure it. There is no
evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of emotional
distress in this manner34
There is virtually unanimous agreement that such ordinary defendants are not liable
for mere insult, indignity, annoyance, or even threats, where the case is lacking in
other circumstances of aggravation. The reasons are not far to seek. Our manners,
and with them our law, have not yet progressed to the point where we are able to
afford a remedy in the form of tort damages for all intended mental disturbance.
Liability of course cannot be extended to every trivial indignity x x x x The plaintiff
must necessarily be expected and required to be hardened to a certain amount of
rough language, and to acts that are definitely inconsiderate and unkind x x x The
plaintiff cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:35
There is no occasion for the law to intervene in every case where someone's feelings
are hurt. There must still be freedom to express an unflattering opinion, and some
safety valve must be left through which irascible tempers may blow off relatively
harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of
recovery for emotional harm that would "open up a wide vista of litigation in the
field of bad manners," an area in which a "toughening of the mental hide" was
thought to be a more appropriate remedy.36 Perhaps of greater concern were the
questions of causation, proof, and the ability to accurately assess damages for
emotional harm, each of which continues to concern courts today.37
In this connection, the doctrines in Chaplinsky and Beauharnais had largely been
superseded by subsequent First Amendment doctrines. Back in simpler times in the
history of free expression the Supreme Court appeared to espouse a theory, known
as the Two-Class Theory, that treated certain types of expression as taboo forms of
speech, beneath the dignity of the First Amendment. The most celebrated statement
of this view was expressed in Chaplinsky:
There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These 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.
Today, however, the theory is no longer viable; modern First Amendment principles
have passed it by. American courts no longer accept the view that speech may be
proscribed merely because it is "lewd," "profane," "insulting" or otherwise vulgar or
offensive.38 Cohen v. California39 is illustrative: Paul Robert Cohen wore a jacket
bearing the words "Fuck the Draft" in a Los Angeles courthouse in April 1968, which
caused his eventual arrest. Cohen was convicted for violating a California statute
prohibiting any person from "disturb[ing] the peace x x x by offensive conduct." The
U.S. Supreme Court conceded that Cohen's expletive contained in his jacket was
"vulgar," but it concluded that his speech was nonetheless protected by the right to
free speech. It was neither considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or "fighting" words for it had not been
directed at a person who was likely to retaliate or at someone who could not avoid
the message. In other words, no one was present in the Los Angeles courthouse who
would have regarded Cohen's speech as a direct personal insult, nor was there any
danger of reactive violence against him.
No specific individual was targeted in the allegedly defamatory words printed on
Cohen's jacket. The conviction could only be justified by California's desire to
exercise the broad power in preserving the cleanliness of discourse in the public
sphere, which the U.S. Supreme Court refused to grant to the State, holding that no
objective distinctions can be made between vulgar and nonvulgar speech, and that
the emotive elements of speech are just as essential in the exercise of this right as
the purely cognitive. As Mr. Justice Harlan so eloquently wrote: "[O]ne man's
vulgarity is another man's lyric x x x words are often chosen as much for their
emotive as their cognitive force."40 With Cohen, the U.S. Supreme Court finally laid
the Constitutional foundation for judicial protection of provocative and potentially
offensive speech.
Similarly, libelous speech is no longer outside the First Amendment protection. Only
one small piece of the Two-Class Theory in Chaplinsky survives U.S. courts
continue to treat "obscene" speech as not within the protection of the First
Amendment at all. With respect to the "fighting words" doctrine, while it remains
alive it was modified by the current rigorous clear and present danger test.41 Thus,
in Cohen the U.S. Supreme Court in applying the test held that there was no showing
that Cohen's jacket bearing the words "Fuck the Draft" had threatened to provoke
imminent violence; and that protecting the sensibilities of onlookers was not
sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate
as Chaplinsky. Indeed, when Beauharnais was decided in 1952, the Two-Class Theory
was still flourishing. While concededly the U.S. High Tribunal did not formally
abandon Beauharnais, the seminal shifts in U.S. constitutional jurisprudence
substantially undercut Beauharnais and seriously undermined what is left of its
vitality as a precedent. Among the cases that dealt a crushing impact on
Beauharnais and rendered it almost certainly a dead letter case law are
Brandenburg v. Ohio,42 and, again, Cohen v. California.43 These decisions recognize
a much narrower set of permissible grounds for restricting speech than did
Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under
the Ohio Criminal Syndicalism Statute for advocating the necessity, duty and
propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means
of accomplishing industrial or political reforms; and for voluntarily assembling with a
group formed to teach or advocate the doctrines of criminal syndicalism. Appellant
challenged the statute and was sustained by the U.S. Supreme Court, holding that
the advocacy of illegal action becomes punishable only if such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce
such action.45 Except in unusual instances, Brandenburg protects the advocacy of
lawlessness as long as such speech is not translated into action.
The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla
affirmed that "Brandenburg must be understood as overruling Beauharnais and
eliminating the possibility of treating group libel under the same First Amendment
standards as individual libel."46 It may well be considered as one of the lynchpins of
the modern doctrine of free speech, which seeks to give special protection to
politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the filing of a
class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during the
deliberations, "an element of a class suit is the adequacy of representation. In
determining the question of fair and adequate representation of members of a class,
the court must consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion of those made
parties as it so bears to the total membership of the class; and, (c) any other factor
bearing on the ability of the named party to speak for the rest of the class.47
The rules require that courts must make sure that the persons intervening should be
sufficiently numerous to fully protect the interests of all concerned. In the present
controversy, Islamic Da'wah Council of the Philippines, Inc., seeks in effect to assert
the interests not only of the Muslims in the Philippines but of the whole Muslim world
as well. Private respondents obviously lack the sufficiency of numbers to represent
such a global group; neither have they been able to demonstrate the identity of
their interests with those they seek to represent. Unless it can be shown that there
can be a safe guaranty that those absent will be adequately represented by those
present, a class suit, given its magnitude in this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral damages may be
recovered only if the plaintiff is able to satisfactorily prove the existence of the
factual basis for the damages and its causal connection with the acts complained
of,49 and so it must be, as moral damages although incapable of pecuniary
estimation are designed not to impose a penalty but to compensate for injury
sustained and actual damages suffered.50 Exemplary damages, on the other hand,
may only be awarded if claimant is able to establish his right to moral, temperate,
liquidated or compensatory damages.51 Unfortunately, neither of the requirements
to sustain an award for either of these damages would appear to have been
adequately established by respondents."
In a pluralistic society like the Philippines where misinformation about another
individual's religion is as commonplace as self-appointed critics of government, it
would be more appropriate to respect the fair criticism of religious principles,
including those which may be outrageously appalling, immensely erroneous, or
those couched as fairly informative comments. The greater danger in our society is
the possibility that it may encourage the frequency of suits among religious
fundamentalists, whether Christian, Muslim, Hindu, Buddhist, Jewish, or others. This
would unnecessarily make the civil courts a battleground to assert their spiritual
ideas, and advance their respective religious agenda.
It need not be stressed that this Court has no power to determine which is proper
religious conduct or belief; neither does it have the authority to rule on the merits of
one religion over another, nor declare which belief to uphold or cast asunder, for the
validity of religious beliefs or values are outside the sphere of the judiciary. Such
matters are better left for the religious authorities to address what is rightfully within
their doctrine and realm of influence. Courts must be viewpoint-neutral when it
comes to religious matters if only to affirm the neutrality principle of free speech
rights under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of
the First Amendment even those ideas that are universally condemned and run
counter to constitutional principles."52 Under the right to free speech, "there is no
such thing as a false idea. However pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the competition of
other ideas."53 Denying certiorari and affirming the appellate court decision would
surely create a chilling effect on the constitutional guarantees of freedom of speech,
of expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals
dated 27 August 1998 is REVERSED and SET ASIDE, and the Decision of the RTC-Br.
4, Manila, dismissing the complaint for lack of merit, is REINSTATED and AFFIRMED.
No pronouncement as to costs. SO ORDERED.
G.R. No. 164437 May 15, 2009
HECTOR C. VILLANUEVA, Petitioner,
vs. PHILIPPINE DAILY INQUIRER, INC., LETTY JIMENEZ MAGSANOC, ROSAURO G.
ACOSTA, JOSE MARIA NOLASCO, ARTEMIO T. ENGRACIA, JR., RAFAEL CHEEKEE, and
MANILA DAILY BULLETIN PUBLISHING CORPORATION, NAPOLEON G. RAMA, BEN F.
RODRIGUEZ, ARTHUR S. SALES, CRIS J. ICBAN, JR., Respondents.
D E C I S I O N: QUISUMBING, J.:
This petition for review on certiorari assails the Amended Decision1 dated May 25,
2004 of the Court of Appeals in CA-G.R. CV No. 54134, reversing the Decision2 of the
Regional Trial Court (RTC) of Negros Oriental, Dumaguete City, Branch 44 in Civil
Case No. 206-B, which had awarded damages to petitioner for respondents false
reporting.
The basic facts in this case are uncomplicated.
Petitioner was one of the mayoralty candidates in Bais, Negros Oriental during the
May 11, 1992 elections.
On March 30, 1990, Ricardo Nolan, another mayoralty candidate, petitioned for the
disqualification of petitioner from running in the elections. Said petition, however,
was denied by the COMELEC.3
Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin
Publishing Corporation (Manila Bulletin) published the following story:
The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD candidate for
mayor of Bais City for having been convicted in three administrative cases for grave
abuse of authority and harassment in 1987, while he was officer-in-charge of the
mayors office of Bais City.4 [Emphasis and underscoring supplied.]
A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer,
Inc. (PDI) also came out with a similar story, to wit:
The Commission on Elections disqualified Hector G. Villanueva as Lakas-NUCD
candidate for mayor of Bais City for having been convicted in three administrative
cases for grave abuse of authority and harassment in 1987, while he was the officer-
in-charge of the mayors office in the city.
The Comelec upheld the recommendation of the Comelec office in Bais City,
stressing that Villanuevas conviction in the administrative cases barred him from
seeking any elective office.
The Comelec cited Section 40 of the Local Government Code of 1991, which
provides that among those who are disqualified from running for any elective
position are "those removed from office as a result of an administrative case."
Villanueva was appointed Bais City OIC on April 18, 1986 by then Local Government
Minister Aquilino Pimentel. Sometime during the same year, three administrative
cases were instituted against Villanueva before the Department of Local
Government upon complaint of Rebecco V. Fernandez and Dr. Harte C. Fuentes.
Sometime in May 1987, the ministry found Villanueva "guilty as charged" and
ordered him removed from his position as OIC of the city government, which
decision was approved by Minister Jaime Ferrer.
In the same month, Francisco G. Villanueva was appointed OIC Mayor to replace
Hector Villanueva who had been removed from office.
The poll body also stated that insofar as the penalty of the removal is concerned,
this cannot be reversed anymore, and consequently cannot be the subject matter of
an appeal.
The indefinite term as OIC to which respondent was appointed in 1986 already
lapsed, with the holding of the 1988 local elections and the assumption of office of
those elected therein.5 [Emphasis and underscoring supplied.]
On May 11, 1992, the national and local elections were held as scheduled. When
results came out, it turned out that petitioner failed in his mayoralty bid.
Believing that his defeat was caused by the publication of the above-quoted stories,
petitioner sued respondents PDI and Manila Bulletin as well as their publishers and
editors for damages before the RTC of Bais City. He alleged that the articles were
"maliciously timed" to defeat him. He claimed he should have won by landslide, but
his supporters reportedly believed the news items distributed by his rivals and voted
for other candidates. He asked for actual damages of P270,000 for the amount he
spent for the campaign, moral damages of P10,000,000, an unspecified amount of
exemplary damages, attorneys fees of P300,000 and costs of suit.6
Respondents disclaimed liability. They asserted that no malice can be attributed to
them as they did not know petitioner and had no interest in the outcome of the
election, stressing that the stories were privileged in nature.7
According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a
COMELEC commissioners press briefing. He, however, came in late and only a
fellow reporter told him that the disqualification case against petitioner was granted.
He did not bother to get a confirmation from anyone as he had a deadline to beat.8
PDI political section editor Carlos Hidalgo, on the other hand, said that he got the
story from a press release. He claimed that he found the press release on his desk
the day Manila Bulletin published the same story. The press release bore COMELECs
letterhead and was signed by one Sonia Dimasupil, a former Malaya newspaper
editor who was in-charge of COMELEC press releases. He tried to contact her but she
was out of the office. Since the news item was also published in the Manila Bulletin,
he felt confident the press release was authentic. He however failed to produce the
press release in court.9
On April 18, 1996, the trial court rendered a decision in favor of petitioner as follows:
WHEREFORE FOREGOING CONSIDERED, this Court holds that defendants Philippine
Daily Inquirer, [Inc.] and Manila [Daily] Bulletin Publishing Corporation with their
respective officers are liable [for] damages to plaintiff in the following manner:
1. As moral damages, the Philippine Daily Inquirer, [Inc.] and the Manila [Daily]
Bulletin Publishing Corporation are ordered to pay P1,000,000.00 each to plaintiff;
2. Both defendants are likewise ordered to pay an exemplary damage in the amount
of P500,000.00 each;
3. To pay plaintiffs attorneys fees in the amount of P100,000.00;
4. And to pay the costs.
SO ORDERED.10
The trial court found the news items derogatory and injurious to petitioners
reputation and candidacy. It faulted respondents for failing to verify the truth of the
news tips they published and held respondents liable for negligence, citing Policarpio
v. Manila Times Pub. Co., Inc.11 The trial court also ruled that because the news
items lacked truth and fairness, they were not privileged communications.
On appeal by respondents, the Court of Appeals dismissed the complaint. It
explained that although the stories were false and not privileged, as there is no
proof they were obtained from a press conference or release, respondents were not
impelled by malice or improper motive. There was also no proof that petitioners
supporters junked him due to the reports. Neither was there any proof he would win,
making his action unfounded.
Before us, petitioner raises the lone issue of whether:
[THE] HONORABLE APPELLATE COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO UTTER LACK OF JURISDICTION WHEN IT UNILATERALLY,
UNPROCEDURALLY AND ARBITRARILY CHANGED THE PLEADING-BORNE AND PRE-
TRIAL ORDER DELINEATED THEORY OF QUASI-DELICT OF APPELLEE, THEREBY
DISMISSING THE CASE FOR FAILURE TO EVIDENCE AN ESSENTIAL REQUISITE OF ITS
IMPOSED IRRELEVANT THEORY.12
Simply stated, we are asked to resolve the issue of whether petitioner is required to
prove malice to be entitled to damages.
Petitioner argues that his cause of action is based on quasi-delict which only requires
proof of fault or negligence, not proof of malice beyond reasonable doubt as
required in a criminal prosecution for libel. He argues that the case is entirely
different and separate from an independent civil action arising from libel under
Article 10013 of the Revised Penal Code. He claims he proffered proofs sustaining his
claim for damages under quasi-delict, not under the law on libel, as malice is hard to
prove. He stresses that nowhere in the complaint did he mention libel, and nothing
in his complaint shows that his cause of action had some shade of libel as defined in
the Revised Penal Code. He also did not hint a resort to a criminal proceeding for
libel.14
PDI and its officers argue that petitioners complaint clearly lays a cause of action
arising from libel as it highlights malice underlying the publications. And as malice is
an element of libel, the appellate court committed no error in characterizing the
case as one arising from libel.15
For their part, Manila Bulletin and its officers claim that petitioner changed his
theory, which must be disallowed as it violates respondents right to due process.
Although petitioners claim for damages before the trial court hinged on the
erroneous publications, which he alleged were maliciously timed, he claims in his
petition before this Court that his cause of action is actually one for quasi-delict or
tort. They stress that the prayer and allegations in petitioners complaint, which
never alleged quasi-delict or tort but malicious publication as basis for the claim for
damages, control his case theory. Thus, it may not be altered unless there was an
amendment of the complaint to change the cause of action. They claim that
petitioners initiatory pleading and the trial courts pre-trial order and decision reveal
that his cause of action for damages arose from the publications of the "malicious"
articles; hence, he should have proved actual malice to be entitled to any award of
damages. They added that the appellate court correctly ruled that the articles were
not published with actual malice.161avvphil.zw+
We rule in favor of the respondents.
Basic is the rule that what determines the nature of an action as well as which court
has jurisdiction over it are the allegations of the complaint and the character of the
relief sought.17 The nature of a pleading is determined by allegations therein made
in good faith, the stage of the proceeding at which it is filed, and the primary
objective of the party filing the same. The ground chosen or the rationale adopted
by the court in resolving the case does not determine or change the real nature
thereof.
The complaint was denominated as one for "damages", and a perusal of its content
reveals that the factual allegations constituted a complaint for damages based on
malicious publication. It specifically pointed out that petitioner lost the election
because of the bad publicity created by the malicious publication of respondents PDI
and Manila Bulletin. It is alleged numerous times that the action for damages
stemmed from respondents malicious publication. Petitioner sought that
respondents be declared guilty of irresponsible and malicious publication and be
made liable for damages. The fact that petitioner later on changed his theory to
quasi-delict does not change the nature of petitioners complaint and convert
petitioners action into quasi-delict. The complaint remains to be one for damages
based on malicious publication.
Consequently, as the issue of malice was raised, it was incumbent on petitioner to
prove the same. The basic rule is that mere allegation is not evidence, and is not
equivalent to proof.18 As correctly stated by the Court of Appeals, while the
questioned news item was found to be untrue, this does not necessarily render the
same malicious.
To fully appreciate the import of the complaint alleging malice and damages, we
must recall the essence of libel.
Libel is defined as "a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a natural person or juridical
person, or to blacken the memory of one who is dead."19 Any of these imputations
is defamatory and under the general rule stated in Article 354 of the Revised Penal
Code, every defamatory imputation is presumed to be malicious.20 The presumption
of malice, however, does not exist in the following instances:
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 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.21
We note that the publications or articles in question are neither private
communications nor true reports of official proceedings without any comments or
remarks. However, this does not necessarily mean that the questioned articles are
not privileged. The enumeration under Art. 354 is not an exclusive list of qualified
privileged communications since fair commentaries on matters of public interest are
likewise privileged and constitute a valid defense in an action for libel or slander.22
The rule on privileged communication had its genesis not in the nations penal code
but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of
the press. As early as 1918, in United States v. Caete,23 this Court ruled that
publications which are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech.24
In the instant case, there is no denying that the questioned articles dealt with
matters of public interest. These are matters about which the public has the right to
be informed, taking into account the very public character of the election itself. For
this reason, they attracted media mileage and drew public attention not only to the
election itself but to the candidates. As one of the candidates, petitioner
consequently assumed the status of a public figure within the purview of Ayers
Productions Pty. Ltd. v. Capulong.25
But even assuming a person would not qualify as a public figure, it would not
necessarily follow that he could not validly be the subject of a public comment. For
he could; for instance, if and when he would be involved in a public issue. If a matter
is a subject of public or general interest, it cannot suddenly become less so merely
because a private individual is involved or because in some sense the individual did
not voluntarily choose to become involved. The publics primary interest is in the
event; the public focus is on the conduct of the participant and the content, effect
and significance of the conduct, not the participants prior anonymity or notoriety.26
In any event, having been OIC-Mayor of Bais City after the People Power Revolution,
petitioner in this case as early as 1992 was already a well-known official and public
figure.
However, it must be stressed that the fact that a communication or publication is
privileged does not mean that it is not actionable; the privileged character simply
does away with the presumption of malice, which the plaintiff has to prove in such a
case.27 That proof in a civil case must of course be based on preponderance of
evidence. This, however, petitioner failed to do in this case.
Under the current state of our jurisprudence, to be considered malicious, the libelous
statement must be shown to have been written or published with the knowledge
that they are false or in reckless disregard of whether they are false or not.
"Reckless disregard of what is false or not" means that the author or publisher
entertains serious doubt as to the truth of the publication, or that he possesses a
high degree of awareness of their probable falsity.28
In the instant case, we find no conclusive showing that the published articles in
question were written with knowledge that these were false or in reckless disregard
of what was false or not. According to Manila Bulletin reporter Edgardo T. Suarez, he
got the story from a fellow reporter who told him that the disqualification case
against petitioner was granted. PDI, on the other hand, said that they got the story
from a press release the very same day the Manila Bulletin published the same
story. PDI claims that the press release bore COMELECs letterhead, signed by one
Sonia Dimasupil, who was in-charge of COMELEC press releases. They also tried to
contact her but she was out of the office. Since the news item was already published
in the Manila Bulletin, they felt confident the press release was authentic. Following
the narration of events narrated by respondents, it cannot be said that the
publications, were published with reckless disregard of what is false or not.
Nevertheless, even assuming that the contents of the articles turned out to be false,
mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and debate.
Consistent with good faith and reasonable care, the press should not be held to
account, to a point of suppression, for honest mistakes or imperfections in the
choice of language. There must be some room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy.29
A newspaper, especially one national in reach and coverage, should be free to report
on events and developments in which the public has a legitimate interest with
minimum fear of being hauled to court by one group or another on criminal or civil
charges for malice or damages, i.e. libel, so long as the newspaper respects and
keeps within the standards of morality and civility prevailing within the general
community.30
Likewise, in our view respondents failure to counter-check their report or present
their informant should not be a reason to hold them liable. While substantiation of
the facts supplied is an important reporting standard, still, a reporter may rely on
information given by a lone source although it
reflects only one side of the story provided the reporter does not entertain a "high
degree of awareness of [its] probable falsity."31 Petitioner, in this case, presented no
proof that respondents entertained such awareness. Failure to present respondents
informant before the court should not be taken against them.32
Worth stressing, jurisprudence instructs us that a privileged communication should
not be subjected to microscopic examination to discover grounds for malice or
falsity. Such excessive scrutiny would defeat the protection which the law throws
over privileged communications. The ultimate test is that of bona fides.33
Further, worthy of note, before the filing of the complaint, respondents herein
received no word of protest, exception or objection from petitioner. Had the error in
the news reports in question been pointed out by interested parties to the
respondents, their publishers and editors could have promptly made a rectification
through print and broadcast media just before and during the election day deflecting
thereby any prejudice to petitioners political or personal interest.
As aptly observed in Quisumbing v. Lopez, et al.:34
Every citizen of course has the right to enjoy a good name and reputation, but we do
not consider that the respondents, under the circumstances of this case, had
violated said right or abused the freedom of the press. The newspapers should be
given such leeway and tolerance as to enable them to courageously and effectively
perform their important role in our democracy. In the preparation of stories, press
reporters and edition usually have to race with their deadlines; and consistently with
good faith and reasonable care, they should not be held to account, to a point of
suppression, for honest mistakes or imperfection in the choice of words.35
[Emphasis supplied.]
We find respondents entitled to the protection of the rules concerning qualified
privilege, growing out of constitutional guaranties in our Bill of Rights. We cannot
punish journalists including publishers for an honest endeavor to serve the public
when moved by a sense of civic duty and prodded by their sense of responsibility as
news media to report what they perceived to be a genuine report.
Media men are always reminded of their responsibilities as such. This time, there is
also a need to remind public figures of the consequences of being one. Fittingly, as
held in Time, Inc. v. Hill,36 one of the costs associated with participation in public
affairs is an attendant loss of privacy.
Exposure of the self to others in varying degrees is a concomitant of life in a civilized
community. The risk of this exposure is an essential incident of life in a society which
places a primary value on freedom of speech and of press. "Freedom of discussion, if
it would fulfill its historic function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of society to cope with
the exigencies of their period."37
On petitioners claim for damages, we find no evidence to support their award.
Indeed, it cannot be said that respondents published the questioned articles for the
sole purpose of harassing petitioner. Proof and motive that the publication was
prompted by a sinister design to vex and humiliate petitioner has not been clearly
and preponderantly established to entitle the petitioner to damages. There remains
unfulfilled the need to prove that the publications were made with actual malice
that is, with the knowledge of the publications falsity or with reckless disregard of
whether they were false or not.38
Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:
For liability to arise then without offending press freedom, there is this test to meet:
"The constitutional guarantees require, we think, a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating to his
official conduct unless he 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." The United States Supreme Court went further in Curtis Publishing Co.
v. Butts,39 where such immunity, was held as covering statements concerning
public figures regardless of whether or not they are government officials. Why there
should be such an extension is understandable in the light of the broad scope
enjoyed by press freedom which certainly allows a full and free discussion of public
issues. What can be more logical and appropriate, then, than such an expansion of
the principle. As noted by a commentator: "Since discussion of public issues cannot
be meaningful without reference to the men involved on both sides of such issues,
and since such men will not necessarily be public officials, one cannot but agree that
the Court was right in Curtis to extend the Times40 rule to all public figures."41
[Emphasis supplied.]
Furthermore, the guarantee of press freedom has also come to ensure that claims
for damages arising from the utilization of the freedom be not unreasonable or
exorbitant as to practically cause a chilling effect on the exercise thereof. Damages,
in our view, could not simply arise from an inaccurate or false statement without
irrefutable proof of actual malice as element of the assailed publication.
WHEREFORE, the assailed Amended Decision dated May 25, 2004 of the Court of
Appeals in CA-G.R. CV No. 54134 is AFFIRMED. SO ORDERED.
G.R. No. 157643 March 28, 2008
CRISTINELLI S. FERMIN, Petitioner,
vs.PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
Before us is a petition1 for review on certiorari, under Rule 45 of the Rules of Court,
of the Decision2 dated September 3, 2002 and the Resolution3 dated March 24,
2003 of the Court of Appeals (CA) in CA-G.R. CR No. 20890 entitled "People of the
Philippines v. Cristenelli S. Fermin and Bogs C. Tugas."
On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez,
two (2) criminal informations for libel4 were filed against Cristinelli5 S. Fermin and
Bogs C. Tugas before the Regional Trial Court (RTC) of Quezon City, Branch 218.
Except for the name of the complainant,6 the informations uniformly read
That on or about the 14th day of June, 1995 in Quezon City, Philippines, the above-
named accused CRISTENELLI SALAZAR FERMIN, publisher, and BOGS C. TUGAS,
Editor-in-Chief of Gossip Tabloid with offices located at 68-A Magnolia Tulip St., Roxas
District, Quezon City, and circulated in Quezon City and other parts of Metro Manila
and the whole country, conspiring together, confederating with and mutually helping
each other, publicly and acting with malice, did then and there willfully, unlawfully
and feloniously print and circulate in the headline and lead story of the said GOSSIP
TABLOID issue of June 14, 1995 the following material, to wit:

"MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN
DING ASUNTO DOON SI ANNABELLE"
"IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT DIN ANG
ASUNTO NILA DUN, BUKOD PA SA NAPAKARAMING PINOY NA HUMAHANTING SA
KANILA MAS MALAKING PROBLEMA ANG KAILANGAN NIYANG HARAPIN SA STATES
DAHIL SA PERANG NADISPALKO NILA, NAGHAHANAP LANG NG SAKIT NG KATAWAN SI
ANNABELLE KUNG SA STATES NGA NIYA MAIISIPANG PUMUNTA NGAYON PARA LANG
TAKASAN NIYA SI LIGAYA SANTOS AT ANG SINTENSIYA SA KANYA"
when in truth and in fact, the accused very well knew that the same are entirely
false and untrue but were publicly made for no other purpose than to expose said
ANNABELLE RAMA GUTIERREZ to humiliation and disgrace, as it depicts her to be a
fugitive from justice and a swindler, thereby causing dishonor, discredit and
contempt upon the person of the offended party, to the damage and prejudice of the
said ANNABELLE RAMA GUTIERREZ.
CONTRARY TO LAW.7
Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded
"not guilty." Thereafter, a joint trial ensued.
After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision8
dated January 27, 1997, found petitioner and Tugas guilty of libel. The dispositive
portion of the Joint Decision reads
WHEREFORE, prosecution having established the guilt of the accused, judgment is
hereby rendered finding CRISTENELLI S. FERMIN and BOGS C. TUGAS GUILTY beyond
reasonable doubt, of libel, punishable under Art. 355 of the Revised Penal Code and
sentences them to an indeterminate penalty of three (3) months and eleven (11)
days of arresto mayor, as minimum, to one (1) year, eight (8) months and twenty-
one (21) days of prision correccional, as maximum, for each case.
Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to pay jointly
and solidarily:
a) moral damages of:
1. P500,000.00 to Annabelle Rama in Criminal Case No. Q-95-62823; and
2. P500,000.00 to Eddie Gutierrez in Criminal Case No. Q-95-62824;
b) attorneys fees of P50,000.00.
SO ORDERED.9
Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its
Decision dated September 3, 2002, affirmed the conviction of petitioner, but
acquitted Tugas on account of non-participation in the publication of the libelous
article. The fallo of the Decision reads
WHEREFORE, judgment is hereby rendered as follows:
1. The appealed decision as against the accused-appellant BOGS C. TUGAS is
REVERSED and SET ASIDE, and another is entered ACQUITTING him of the crime
charged and ABSOLVING him from any civil liability; and
2. The same appealed decision as against accused-appellant CRISTENELLI S. FERMIN
is AFFIRMED, with the MODIFICATION that the award of moral damages is REDUCED
to P300,000.00 for EACH offended party, and the award of attorneys fees is
DELETED.
Costs against the appellant FERMIN. SO ORDERED.10
The CA denied petitioners motion for reconsideration for lack of merit in the
Resolution dated March 24, 2003. Hence, this petition, raising the following
arguments:
I.
THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO AND SANTIAGO, U.S. VS.
MADRIGAL AND U.S. VS. SANTOS AND THE HOLDING IN U.S. VS. OCAMPO AS
CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS. BELTRAN AND SOLIVEN
REQUIRING KNOWLEDGE, PARTICIPATION AND COMPLICITY BY THE PUBLISHER IN
THE PREPARATION AND APPROVAL OF THE LIBELOUS ARTICLE TO SUSTAIN THE
LATTERS CONVICTION FOR LIBEL ARE APPLICABLE IN THE PRESENT CASE.
II.
ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A PUBLISHER LIABLE FOR
LIBEL TO THE SAME EXTENT AS IF HE WERE THE AUTHOR THEREOF MERELY
CREATES A DISPUTABLE PRESUMPTION WHICH MAY BE REBUTTED BY CONTRARY
EVIDENCE.
III.
THE QUESTIONED ARTICLE IS NOT LIBELOUS.
IV.
THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE OF THE FREEDOM OF THE
PRESS AND IS WITHIN THE REALM OF FAIR AND HONEST COMMENT.11
Being interrelated, we shall discuss the first and the second issues jointly, then the
third and the fourth issues together.
Petitioner posits that, to sustain a conviction for libel under Article 360 of the
Revised Penal Code, it is mandatory that the publisher knowingly participated in or
consented to the preparation and publication of the libelous article. This principle is,
allegedly, based on our ruling in U.S. v. Taylor,12 People v. Topacio and Santiago,13
U.S. v. Madrigal,14 U.S. v. Abad Santos,15 and U.S. v. Ocampo,16 as purportedly
clarified in People v. Beltran and Soliven.17 She submits that these cases were
applied by the CA in acquitting her co-accused Tugas, and being similarly situated
with him, she is also entitled to an acquittal. She claims that she had adduced ample
evidence to show that she had no hand in the preparation and publication of the
offending article, nor in the review, editing, examination, and approval of the articles
published in Gossip Tabloid.
The arguments are too simplistic and the cited jurisprudence are either misplaced
or, in fact, damning.
Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present
case. U.S. v. Madrigal pertains to a criminal prosecution under Section 30 of Act No.
1519 for fraudulently representing the weight or measure of anything to be greater
or less than it is, whereas U.S. v. Abad Santos refers to criminal responsibility under
the Internal Revenue Law (Act. No. 2339).
The other cases are more in point, but they serve to reinforce the conviction of,
rather than absolve, petitioner.
In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which
provides that: "Every author, editor or proprietor of any book, newspaper, or serial
publication is chargeable with the publication of any words contained in any part of
said book or number of each newspaper or serial as fully as if he were the author of
the same." However, proof adduced during the trial showed that accused was the
manager of the publication without the corresponding evidence that, as such, he
was directly responsible for the writing, editing, or publishing of the matter
contained in the said libelous article.18
In People v. Topacio and Santiago, reference was made to the Spanish text of Article
360 of the Revised Penal Code which includes the verb "publicar." Thus, it was held
that Article 360 includes not only the author or the person who causes the libelous
matter to be published, but also the person who prints or publishes it.
Based on these cases, therefore, proof of knowledge of and participation in the
publication of the offending article is not required, if the accused has been
specifically identified as "author, editor, or proprietor" or "printer/publisher" of the
publication, as petitioner and Tugas are in this case.
The rationale for the criminal culpability of those persons enumerated in Article 360
of the Revised Penal Code19 was enunciated in U.S. v. Ocampo,20 to wit:
"According to the legal doctrines and jurisprudence of the United States, the printer
of a publication containing libelous matter is liable for the same by reason of his
direct connection therewith and his cognizance of the contents thereof. With regard
to a publication in which a libel is printed, not only is the publisher but also all other
persons who in any way participate in or have any connection with its publication
are liable as publishers." x x x x
In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629),
the question of the responsibility of the manager or proprietor of a newspaper was
discussed. The court said, among other things (pp. 782, 783):
"The question then recurs as to whether the manager or proprietor of a newspaper
can escape criminal responsibility solely on the ground that the libelous article was
published without his knowledge or consent. When a libel is published in a
newspaper, such fact alone is sufficient evidence prima facie to charge the manager
or proprietor with the guilt of its publication.
"The manager and proprietor of a newspaper, we think ought to be held prima facie
criminally for whatever appears in his paper; and it should be no defense that the
publication was made without his knowledge or consent, x x x
"One who furnishes the means for carrying on the publication of a newspaper and
entrusts its management to servants or employees whom he selects and controls
may be said to cause to be published what actually appears, and should be held
responsible therefore, whether he was individually concerned in the publication or
not, x x x. Criminal responsibility for the acts of an agent or servant in the course of
his employment necessarily implies some degree of guilt or delinquency on the part
of the publisher; x x x.
"We think, therefore, the mere fact that the libelous article was published in the
newspaper without the knowledge or consent of its proprietor or manager is no
defense to a criminal prosecution against such proprietor or manager."
In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was
considered and the court held that in the criminal prosecution of a publisher of a
newspaper in which a libel appears, he is prima facie presumed to have published
the libel, and that the exclusion of an offer by the defendant to prove that he never
saw the libel and was not aware of its publication until it was pointed out to him and
that an apology and retraction were afterwards published in the same paper, gave
him no ground for exception. In this same case, Mr. Justice Colt, speaking for the
court, said:
"It is the duty of the proprietor of a public paper, which may be used for the
publication of improper communications, to use reasonable caution in the conduct of
his business that no libels be published." (Whartons Criminal Law, secs. 1627, 1649;
1 Bishops Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195;
Commonwealth vs. Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established by the English courts. In the case
of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was "clearly of the opinion
that the proprietor of a newspaper was answerable criminally as well as civilly for
the acts of his servants or agents for misconduct in the management of the paper."
This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and Slander, said:
"An information for libel will lie against the publisher of a paper, although he did not
know of its being put into the paper and stopped the sale as soon as he discovered
it."
In the case of People vs. Clay (86 Ill., 147) the court held that
"A person who makes a defamatory statement to the agent of a newspaper for
publication, is liable both civilly and criminally, and his liability is shared by the
agent and all others who aid in publishing it."
It is worthy to note that petitioner was not only the "publisher," as shown by the
editorial box of Gossip Tabloid,21 but also its "president" and "chairperson" as she
herself admitted on the witness stand.22 She also testified that she handled the
business aspect of the publication, and assigns editors to take charge of
everything.23 Obviously, petitioner had full control over the publication of articles in
the said tabloid. Her excuse of lack of knowledge, consent, or participation in the
release of the libelous article fails to persuade. Following our ruling in Ocampo,
petitioners criminal guilt should be affirmed, whether or not she had actual
knowledge and participation, having furnished the means of carrying on the
publication of the article purportedly prepared by the members of the Gossip
Reportorial Team, who were employees under her control and supervision.
Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and
Soliven such that Maximo V. Soliven, as publisher of The Philippine Star, was
acquitted by the appellate court in view of the lack of evidence that he knew and
approved the article written by Luis D. Beltran about then President Corazon C.
Aquino in the newspapers October 12, 1987 issue. Petitioner submits that People v.
Beltran and Soliven serves as a guide to this Court regarding the criminal liability of
the publisher of the newspaper where a libelous article is published. Put differently,
it appears that petitioner wants this Court to follow the CA decision and adopt it as
judicial precedent under the principle of stare decisis.
The doctrine of stare decisis, embodied in Article 824 of the Civil Code, is
enunciated, thus:
The doctrine of stare decisis enjoins adherence to judicial precedents. It requires
courts in a country to follow the rule established in a decision of the Supreme Court
thereof. That decision becomes a judicial precedent to be followed in subsequent
cases by all courts in the land. The doctrine of stare decisis is based on the principle
that once a question of law has been examined and decided, it should be deemed
settled and closed to further argument.25 (Emphasis supplied)
Unfortunately, the Beltran decision attained finality at the level of the CA. Thus, if
the CA seemingly made a new pronouncement regarding the criminal liability of a
publisher under Article 360 of the Revised Penal Code, that ruling cannot bind this
Court unless we purposely adopt the same. Be that as it may, we find no compelling
reason to revisit U.S. v. Ocampo; to modify it would amount to judicial legislation.
Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven,
which requires specific knowledge, participation, and approval on the part of the
publisher to be liable for the publication of a libelous article, would be reading into
the law an additional requirement that was not intended by it.
In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot feign
lack of participation in the publication of the questioned article as was evident from
his and petitioners Joint Counter-Affidavit,26 and as gleaned from his testimony
before the trial court, to wit:
WITNESS: As editor-in-chief, I have no participation in the writing of the questioned
article and my only participation in the publication is the handling of the physical
lay-outing, indication and allocation of type-size of the body of the article, before the
same was printed and published in GOSSIP Tabloid.
Q: You do not deny the statements in this publication as executed by you in the
counter-affidavit and sworn in before the City Prosecutor, is this correct?
A: Yes, that is correct.
ATTY. ALENTAJAN:
That is all for the witness, your Honor.
COURT: Do we get it right from you, if you were acting as you were, you will not
allow the said publication of this same article or same stories?
A: If I were, if I was physically present, honestly I will because if you can see the
article, your Honor, it is according to our source, it is not a direct comment.
COURT: So whether you are there or not, [the] same article leading to them (sic) will
still find its way to come out?
A: Yes, your honor.27
Tugas testimony, in fact, confirms his actual participation in the preparation and
publication of the controversial article and his approval thereof as it was written.
Moreover, his alibi, which was considered meritorious by the CA, that he was
confined at the Mother of Perpetual Help Clinic in Angeles City, is unavailing, in view
of the testimony of his attending physician that Tugas medical condition did not
prevent him from performing his work, thus
Q: How would you describe the condition of the patient on June 13, 1995?
A: He is in stable condition.
Q: You said he was in severe pain, from your opinion, was that condition sufficient to
enable him to work?
A: Yes, in my opinion.28
Q: You said your impression of the patient was urethral colic and this was caused by
spasm?
A: Yes, sir.
Q: When you say spasm, it is not sustained, it comes every now and then and
[intermittently], it is not sustained?
A: Yes, sir.
Q: Now you said he was in stable condition?
A: Yes, sir.
Q: That means that his ailment is not life-threatening?
A: Correct.
Q: In fact, visitors were allowed to see him?
A: Yes, sir.
Q: He can also write?
A: Yes, sir.
Q: He was allowed to [receive] friends?
A: Yes, sir.
Q: According to you, he was able to work also, he is not totally incapacitated in
performing certain chores in the hospital room?
A: No, sir.
Q: Now, prior to 7:10 oclock in the morning of June 13, 1995, you did not see Mr.
Bogs Tugas?
A: I saw him, he was admitted at 7:00 oclock but I saw him before.
Q: How long before 7:10 were you able to see him?
A: That is about 2 hours.
Q: About 5:00 oclock in the morning?
A: Yes, sir.
Q: Who was his companion when you saw him?
A: He was boarding in my place.
Q: So, you brought him to the hospital?
A: Both of us went to the hospital.
Q: Which boarding house are you referring [to]? In Angeles City?
A: Yes, sir.
Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-in-chief of a
newspaper tabloid?
A: Yes, sir.
Q: And some of his work is done in your boarding house?
A: I do not know about it.
Q: How did you know that he is working on his paper works in Quezon City? Did you
see him do that?
A: I only know he goes to Manila everyday.
Q: In your boarding house, you saw him read and write?
A: Probably yes.29
But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas
because with his acquittal by the CA, we would run afoul of his constitutional right
against double jeopardy.
Anent the third and fourth issues, petitioner argues that the subject article in the
June 14, 1995 issue of Gossip Tabloid is not libelous, is covered by the mantle of
press freedom, and is merely in the nature of a fair and honest comment. We
disagree.
The banner headlines of the offending article read:
KUNG TOTOONG NAKATAKAS NA SI ANNABELLE RAMA, IMPOSIBLENG SA STATES SIYA
NAGPUNTA!
MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING
ASUNTO DUN SI ANNABELLE!
On the first page of the same issue of Gossip Tabloid, written in smaller but bold
letters, are:
HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN NIYANG ASUNTONG
INIWAN DUN NOON PA, NAKAPAG-ABROAD MAN SIYA, E, PIHADONG HINDI SIYA SA
AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA MAGTATAGO, E, ILANG TAON NA RIN
SIYANG INAABANGAN DUN NG NGA KABABAYAN NATING NILOKO NIYA, IN ONE WAY
OR ANOTHER?... NAAALALA PA BA NINYO YUNG MGA MAMAHALING KALDERO NA
IBINEBENTA NILA NOON SA AMERIKA, DUN SILA NAGKAPROBLEMA, MILYON-MILYON
ANG INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA PILIPINAS NOON!
The rest of the article, which continued to the entire second page of the tabloid,
follows
Mainit na pinag-uusapan ngayon ang ibat ibang posibilidad na maaaring gawin ni
Annabelle Rama Gutierrez para lang hindi matuloy ang pag-aresto at pagkukulong sa
kanya ng mga awtoridad kaugnay ng sintensiyang ipinapataw sa kanya ni Manila-
RTC Judge Rodolfo Palattao.
Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang sinumang
nakapagtuturo kung saan talaga naroon ang ina ni Ruffa Gutierrez na hindi
pinayagang makapagpiyansa ng Branch 33 para sa pansamantala niyang kalayaan.
May mga nagpapalagay na sa pamamagitan ng tinatawag na back-door exit, ang
pag-alis ng bansa sa paraang hindi na kailangan pang dumaan sa NAIA, ay nakaalis
na si Annabelle noon pang nakaraang Biyernes, June 9, patungong Amerika.
Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing napaka-
imposibleng sa Amerika nagtungo si Annabelle dahil doon man ay may mga
nakahanda nang awtoridad na handang magkulong kay Annabelle, sakaling
mapatunayang naroon nga siya.
"Hindi siya makapupunta sa Amerika dahil napakarami rin niyang asuntong iniwan
doon noon pa!
"Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil nakaabang
na rin ang sangkatutak niyang maniningil dun ngayon!
"Sa Amerika pa kaya siya magtatago, samantalang ilang taon na rin siyang
inaabangan dun ng mga kababayan nating niloko niya, in one way or another?"
simula ng source ng Gossip Tabloid.
Niliwanag ng naturang source na ang dahilan ng biglaang pag-uwi ng pamilya
Gutierrez sa bansa ilang taon na ang nakararaan ay may kinalaman sa malaking
halagang hindi nabayaran nina Eddie at Annabelle sa ilang kababayan natin sa
Amerika.
"Naaalala pa ba ninyo yung mga kalderong ibinebenta noon nina Eddie at Annabelle
sa States?
"Mga mamahaling kaldero yun, hindi basta-basta kaldero ang ibinebenta nila dun,
kaya talagang ang ganda-ganda na sana ng buhay nilang mag-anak dun hanggang
sa dumating yung point na sinisingil na sila nung mismong kompanya ng kaldero!
"Malaki ang halagang involved, milyon-milyon, kaya nung kinasuhan na sila, e
kinailangan nilang umalis sa Amerika para bumalik na dito.
"Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema kina Eddie
at Annabelle, alam ba nyo yun?
"Ang ganda-ganda ng samahan nila nung una sa Amerika, yumaman sila nang dahil
sa mga mamahaling kaldero na ibinebenta nila, kaso, sumabit sina Eddie at
Annabelle dun sa mismong company na pinagkukunan nila ng produkto!
"Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga kalderong
yun, e sumabit pa sila nang malaking halaga sa mismong manufacturer nung mga
ibinebenta nilang mamahaling kaldero!
"Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas ang pamilya ni Eddie!
"Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi nilang lumaking
Pilipinong-Pilipino ang kanilang mga anak, pero ang totoo, e, napakalaki ng
problemang iniwan nila sa Amerika!" mahabang simula ng source ng Gossip Tabloid.
Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon nina Eddie at
Annabelle, lalo na si Annabelle, na bukod sa mataray na ay may kayabangan pa.
"Dati nang ganyan si Annabelle! Mataray siya na wala sa lugar. Nung nasa Amerika
pa silang mag-anak, e, yun din ang madalas nilang pag-awayan dun ni Eddie!
"Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng mga sama
niya ng loob, e, dun nag-i-stay sa bahay ng mga kaibigan niyang Pinoy!
"Grabe ang naging problema nila dun, kaya wala silang choice that time kung di
ang umuwi na lang sa Pilipinas!
"Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta-basta,
milyunan yon!
"Kaso yung pinagbebentahan nila, yung halagang dapat sana, e, ibigay nila sa
kompanya dahil porsiyentuhan lang naman sila dun, nagastos nila!
"Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan kung
bakit nalubog sila noon sa utang sa States!
"Nag-casino pala si Annabelle! Grabe raw kung magpatalo siya, kaya pati yung
kinita nila sa pagbebenta ng mamahaling kaldero, e, natunaw!" sabi uli ng source ng
Gossip Tabloid.
Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source ng Gossip
Tabloid, kaya ngayong may asunto naman si Annabelle dito sa Pilipinas ay napaka-
imposibleng sa Amerika pa rin siya tatakbo.
"Paano siya magpupunta dun para tuluyan nang manirahan, e, ang dami-dami ring
Pinoy na naghihintay sa kanya dun para maningil sa kanya?
"Alam nyo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na nandun, e,
may mga nakaabang na ring asunto para kay Annabelle.
"So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa abroad
siya dahil sa mga naghihintay na kaso sa kanya dun.
"Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.
"Di bat ilang beses nang nagpapabalik-balik dun sina Ruffa. Noon pa, e, pinag-
aralan na nina Eddie at Annabelle ang posibilidad ng mga gagawin nila!
"Alam nila na hindi sila puwedeng mag-stay sa States dahil kalat din ang asunto nila
dun, bukod pa sa napakaraming Pinoy na huma-hunting sa kanila!
"Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas siya sa
pagkakulong, imposibleng sa States siya nagpunta!
"Mas malaking problema ang kailangan niyang harapin sa States dahil sa perang
nadispalko nila, bukod pa sa asuntong iniwan nilang nakatiwangwang dun!
"Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya maisipang
pumunta ngayon para lang malusutan si Ligaya Santos at ang sintensiya sa kanya ni
Judge Palattao!" madiin pang pahayag ng mapagkakatiwalaang source ng Gossip
Tabloid.30
A libel is defined as a public and malicious imputation of a crime, or of a vice or
defect, real or imaginary; or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.31 In determining whether a
statement is defamatory, the words used are to be construed in their entirety and
should be taken in their plain and ordinary meaning as they would naturally be
understood by persons reading them, unless it appears that they were used and
understood in another sense.32
To say that the article, in its entirety, is not libelous disturbs ones sensibilities; it
would certainly prick ones conscience. There is evident imputation of the crime of
malversation (that the complainants converted for their personal use the money
paid to them by fellow Filipinos in America in their business of distributing high-end
cookware); of vices or defects for being fugitives from the law (that complainants
and their family returned to the Philippines to evade prosecution in America); and of
being a wastrel (that Annabelle Rama Gutierrez lost the earnings from their business
through irresponsible gambling in casinos). The attribution was made publicly,
considering that Gossip Tabloid had a nationwide circulation. The victims were
identified and identifiable. More importantly, the article reeks of malice, as it tends
to cause the dishonor, discredit, or contempt of the complainants.
Petitioner claims that there was no malice on her part because, allegedly, the article
was merely a fair and honest comment on the fact that Annabelle Rama Gutierrez
was issued a warrant of arrest for her conviction for estafa before then Judge
Palattaos court. She even cited as proof of her lack of malice the purported absence
of any ill will against complainants, as shown by the article she wrote about
complainants daughter Sharmaine Ruffa Gutierrez in the June 15, 1995 issue of the
same tabloid where she expressed her sympathy and admiration for the latter.
Notably, however, the complainants successfully refuted the imputations during the
trial. Complainants proved that they could return anytime to the United States of
America after the publication of the article,33 and that they remained on good terms
with the manufacturing company of the cookware.34 To the contrary, both petitioner
and Tugas failed to adduce evidence to show the truth of the allegations in the
article despite the opportunity to do so.
Further worthy of mention is the admission of petitioner before the trial court that
she had very close association with then Congressman Golez and mayoralty
candidate Joey Marquez, and that she would use her skills as a writer to campaign
for them. Complainant Eddie Gutierrez ran against then incumbent Golez for the
congressional seat in Paraaque City. Petitioner testified in this wise
Q: When you acted as writer during the campaign, as you said, for Joey Marquez and
Golez, of course you did not give your services for free to these candidates, were
you paid?
A: I was not paid, Sir.
Q: You just wanted to help them, am I correct?
A: Yes, because they are my friends, Sir.
Q: And you wanted them to win the election, thru your being a writer, is that
correct?
A: Yes, Sir.
Q: You were campaigning hard for Golez and Marquez, right?
A: Right, Sir.
Q: When you say hard, you wanted your candidates to win, is it not?
A: Yes, Sir.
Q: Who was the opponent of Joey Marquez at that time?
A: The former Mayor Olivares, Sir.
Q: How about the opponent of Congressman Golez?
A: One of them is Eddie Gutierrez, Sir.
Q: And the tandem of Marquez and Golez versus the tandem of Olivares and Eddie
Gutierrez, am I correct?
A: Actually, that was the situation at that time, Sir.
Q: Of course, the tandem of Joey Marquez was working hard to win over their
opponent, is it not?
A: Whatever their problems were, I am out.
Q: As a hard campaigner, you wanted your team to win over the other, is this
correct?
A: Yes, Sir.
Q: Of course you understand what PRO work is, it includes propaganda, is that
correct?
A: I am sorry I dont accept PR work, Sir.
Q: Do you understand PRO work?
A: Yes, Sir, I know.
Q: In propaganda, for your side, you promote it as against the other, right?
A: Yes, Sir.35
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part. Verily,
not only was there malice in law, the article being malicious in itself, but there was
also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign.
Neither can petitioner take refuge in the constitutional guarantee of freedom of
speech and of the press. Although a wide latitude is given to critical utterances
made against public officials in the performance of their official duties, or against
public figures on matters of public interest, such criticism does not automatically fall
within the ambit of constitutionally protected speech. If the utterances are false,
malicious or unrelated to a public officers performance of his duties or irrelevant to
matters of public interest involving public figures, the same may give rise to criminal
and civil liability.36 While complainants are considered public figures for being
personalities in the entertainment business, media people, including gossip and
intrigue writers and commentators such as petitioner, do not have the unbridled
license to malign their honor and dignity by indiscriminately airing fabricated and
malicious comments, whether in broadcast media or in print, about their personal
lives.37
We must however take this opportunity to likewise remind media practitioners of the
high ethical standards attached to and demanded by their noble profession. The
danger of an unbridled irrational exercise of the right of free speech and press, that
is, in utter contempt of the rights of others and in willful disregard of the cumbrous
responsibilities inherent in it, is the eventual self-destruction of the right and the
regression of human society into a veritable Hobbesian state of nature where life is
short, nasty and brutish. Therefore, to recognize that there can be no absolute
"unrestraint" in speech is to truly comprehend the quintessence of freedom in the
marketplace of social thought and action, genuine freedom being that which is
limned by the freedom of others. If there is freedom of the press, ought there not
also be freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr. Justice
Frankfurter has warned, "[W]ithout x x x a lively sense of responsibility, a free press
may readily become a powerful instrument of injustice.
Lest we be misconstrued, this is not to diminish nor constrict that space in which
expression freely flourishes and operates. For we have always strongly maintained,
as we do now, that freedom of expression is mans birthright constitutionally
protected and guaranteed, and that it has become the singular role of the press to
act as its "defensor fidei" in a democratic society such as ours. But it is also worth
keeping in mind that the press is the servant, not the master, of the citizenry, and its
freedom does not carry with it an unrestricted hunting license to prey on the
ordinary citizen.38
In view of the foregoing disquisitions, the conviction of petitioner for libel should be
upheld.
With respect to the penalty to be imposed for this conviction, we note that on
January 25, 2008, the Court issued Administrative Circular No. 08-2008, entitled
Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in
Libel Cases. The Circular expresses a preference for the imposition of a fine rather
than imprisonment, given the circumstances attendant in the cases39 cited therein
in which only a fine was imposed by this Court on those convicted of libel. It also
states that, if the penalty imposed is merely a fine but the convict is unable to pay
the same, the Revised Penal Code provisions on subsidiary imprisonment should
apply.
However, the Circular likewise allows the court, in the exercise of sound discretion,
the option to impose imprisonment as penalty, whenever the imposition of a fine
alone would depreciate the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperatives of justice.
In the case at bench, the Court considers the publics speculations as to the
whereabouts of Annabelle Rama Gutierrez with the issuance of the warrant of arrest
after her initial conviction for estafa. Petitioner fueled these speculations through
her article. However, her article went overboard and exceeded the bounds of fair
comment. This warrants her conviction. Nonetheless, in light of the relatively wide
latitude given to utterances against public figures such as private complainants, and
consonant with Administrative Circular No. 08-2008, the Court deems it proper to
modify the penalty of imprisonment to a fine in the amount of P6,000.00, with
subsidiary imprisonment in case of insolvency, in each case. But the award of moral
damages for each of the private complainants in the amount of P500,000.00, as
ordered by the trial court, should be restored on account of the serious anxiety and
the wounded feelings suffered by complainants from the libelous article, particularly
taking into account the fact that petitioner and the private complainants were on
relatively good terms with each other, and complainants gave no cause or offense
which could have provoked the malicious publication.
WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-
G.R. CR No. 20890 is AFFIRMED with the MODIFICATION that in lieu of imprisonment,
petitioner Cristinelli S. Fermin is sentenced to pay a fine in the amount of P6,000.00,
with subsidiary imprisonment in case of insolvency, in each case. The award of
moral damages, in the amount of P300,000.00 each in favor of complainants
Annabelle Rama Gutierrez and Eduardo Gutierrez, is increased to P500,000.00. Costs
against petitioner.
SO ORDERED.
G.R. No. 143372 December 13, 2005
PHILIPPINE JOURNALISTS, INC. (PEOPLES JOURNAL), ZACARIAS NUGUID,
JR. and CRISTINA LEE, Petitioners, vs.
FRANCIS THOENEN, Respondent.
D E C I S I O N: CHICO-NAZARIO, J.:
For almost a century, this Court has sought that elusive equilibrium between the law
on defamation on one hand, and the constitutionally guaranteed freedoms of speech
and press on the other. This case revisits that search.
On 30 September 1990, the following news item appeared in the Peoples Journal, a
tabloid of general circulation:
Swiss Shoots Neighbors Pets
RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to
deport a Swiss who allegedly shoots wayward neighbors pets that he finds in his
domain.
The BF Homes residents through lawyer Atty. Efren Angara complained that the
deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help
"prevent the recurrence of such incident in the future."
Angara explained that house owners could not control their dogs and cats when they
slip out of their dwellings unnoticed.
An alleged confrontation between Thoenen and the owner of a pet he shot recently
threatens to exacerbate the problem, Angara said.
Cristina Lee1
The subject of this article, Francis Thoenen, is a retired engineer permanently
residing in this country with his Filipina wife and their children. 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.
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. For the
impairment of his reputation and standing in the community, and his mental
anguish, Thoenen sought P200,000.00 in moral damages, P100,000.00 in exemplary
damages, and P50,000.00 in attorneys fees.
The petitioners admitted publication of the news item, ostensibly out of a "social and
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.2
The principal source of the article was a letter3 by a certain Atty. Efren Angara
addressed to Commissioner Andrea Domingo of the Commission on Immigration and
Deportation (CID, now Bureau of Immigration), which states:
Dear Madame:
We would like to request your office to verify the true status/authenticity of the
residency in the Philippines of a foreign national (a Swiss) by the name of Francis
Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes
(PH. III), Paraaque, Metro Manila. I received (sic) complaint from my clients residing
around his vicinity that this foreigner had (sic) been causing troubles ever since he
showed up. He is too meticulous and had (sic) been shooting dogs and cats passing
his house wall everytime.
Such act which (sic) is unacceptable to the owners especially if inspite (sic) of
control their pets slips (sic) out unnoticed. A confrontation between him and the
owner of the dog he shoot, (sic) already occurred last time. In some instances this
guy had been always driving his car barbarously inside the subdivision with children
playing around (sic) the street. Before my clients petitioned themselves with the
endorsement of the Homeowners Association and filed to your office for deportation
were respectfully seeking your assistance to investigate this alien to prevent further
incident occurrence (sic) in the future. He should not be allowed to dominate the
citizens of this country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news events in the
CID, acquired a copy of the above letter from a trusted source in the CIDs
Intelligence Division. They claimed to "have reasonable grounds to believe in the
truth and veracity of the information derived (from their) sources."4
It was proven at trial that the news article contained several inaccuracies. The
headline, which categorically stated that the subject of the article engaged in the
practice of shooting pets, was untrue.5 Moreover, it is immediately apparent from a
comparison between the above letter and the news item in question that while the
letter is a mere request for verification of Thoenens status, Lee wrote that residents
of BF Homes had "asked the Bureau of Immigration to deport a Swiss who allegedly
shoots neighbors pets." No complaints had in fact been lodged against him by any
of the BF Homeowners,6 nor had any pending deportation proceedings been
initiated against him in the Bureau of Immigration.7
Thoenen also submitted a Certification8 from the Office of the Bar Confidant that
there was no lawyer in its rolls by the name of Efren Angara, earlier cited by
petitioner Lee as the author of the letter on which she based her article. Finally, the
trial also showed that despite the fact that respondents address was indicated in
the letter, Cristina Lee made no efforts to contact either him or the purported letter-
writer, Atty. Angara.9
The petitioners claim that Lee sought confirmation of the story from the newspapers
correspondent in Paraaque, who told her that a woman who refused to identify
herself confirmed that there had indeed been an incident of pet-shooting in the
neighborhood involving the respondent.10 However, the correspondent in question
was never presented in court to verify the truth of this allegation. Neither was the
alleged CID source presented to verify that the above letter had indeed come from
the Department, nor even that the same was a certified true copy of a letter on file
in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a
Decision11 in favor of the petitioners, which reads in part:
There is no malice on the part of the defendants in publishing the news item done in
the exercise of their profession as journalists reporting to the people on matters of
public interest. The news report was based on an official communication filed with
the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086,
September 30, 1991, which is similar to the present case:
While indeed, the news item subject of the present case might have ruffled the
sensitivities of plaintiff, this Court however believes that the alleged defamatory
articles falls within the purview of a qualifiedly privileged matter, and that therefore,
it cannot be presumed to be malicious. The onus of proving malice is accordingly
shifted to the plaintiff, that is, that he must prove that the defendants were actuated
by ill-will in what they caused to be printed and published, with a design to
carelessly or wantonly injure the plaintiff. (US vs. Bustos, et al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the freedom
of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT
PRONOUNCEMENT AS TO COSTS.12
On appeal, the court a quo reversed13 the trial court. It 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 faith." The appellate court emphasized that Thoenen was neither
a public official nor a public figure, and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item
published in the 30 September 1990 edition of Peoples Journal had been done in
violation of the principle of abuse of right under Article 19 of the Civil Code, in the
absence of a bona fide effort to ascertain the truth thereof, i.e., "to observe honesty
and good faith," which makes their act a wrongful omission. Neither did they "act
with justice and give everyone his due," because without ascertaining the veracity of
the information given them by the Intelligence Bureau of the Bureau of Immigration,
they published a news article which they were aware would bring the person
specifically named therein, viz, Francis Thoenen, the plaintiff-appellant in this case,
into disrepute.
WHEREFORE, the foregoing considered, the Decision appealed from is hereby
REVERSED and SET ASIDE. In its stead, We find for the appellant and award him
moral damages of P200,000.00; exemplary damages of P50,000.00, and legal fees
to P30,000.00; all of which shall be borne jointly and severally by appellees.14
Petitioners motion for reconsideration having been denied,15 this petition for
certiorari under Rule 45 of the 1997 Rules of Civil Procedure was filed on the
following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI
liable under Article 19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel even if the
article was based on a letter released by the Bureau of Immigration, hence a
qualified privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain the
truth of the subject news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the same
was excessive unconscionable and devoid of any basis.
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."16 They insist that the news article was based on a letter released by the
Bureau of Immigration, and is thus a qualifiedly privileged communication. To
recover damages, the respondent must prove its publication was attended by actual
malice - that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.17
For the reasons stated below, we hold that the constitutional privilege granted under
the freedom of speech and the press against liability for damages does not extend
to the petitioners in this case.
The freedom of speech and of the press is not absolute. The freedom of speech and
press and assembly, first laid down by President McKinley in the Instruction to the
Second Philippine Commission of 07 April 1900, is an almost verbatim restatement
of the first amendment of the Constitution of the United States.18 Enshrined in
Section 4, Article III of the Bill of Rights of the 1987 Constitution, it states, "No law
shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for
redress of grievances."
But not all speech is protected. "The right of free speech is not absolute at all times
and under all circumstances. There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem. These 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." 19
Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as
"a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead."
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.20 In
Vasquez v. Court of Appeals,21 we had occasion to further explain. Thus:
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 a third person or a stranger was able to identify him as the object of the
defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code
provides:
Every defamatory imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in the performance of
any legal, moral or security duty; and
2. 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.
(citations omitted, emphasis supplied)
In this case, there is no controversy as to the existence of the three elements. The
respondents name and address were clearly indicated in the article ascribing to him
the questionable practice of shooting the wayward pets of his neighbors. The
backlash caused by the publication of the article was in fact such that stones had
been thrown at their house, breaking several flower pots, and daily and nightly calls
compelled him to request a change of their telephone number.22 These facts are not
contested by the petitioners. What the petitioners claim is the absence of proof of
the fourth element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable motive for making it
is 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 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.
The article is not a privileged communication. We first discussed the freedom of
speech and press and assembly vis-a-vis the laws on libel and slander in the
groundbreaking case of US v. Bustos,23 where we applied the prevailing English and
American jurisprudence to the effect that:
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 an
unjust accusation; the wound can be assuaged with the balm of a clear conscience.
A public officer must not be too thin-skinned with reference to comment upon his
official acts. Only thus can the intelligence and dignity of the individual be exalted.
Of course, criticism does not authorize defamation. Nevertheless, as the individual is
less than the State, so must expected criticism be born for the common good? Rising
superior to any official, or set of officials, to the Chief Executive, to the Legislature,
to the Judiciary - to any or all the agencies of Government - public opinion should be
the constant source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly
administration of government inevitably lead to the adoption of the doctrine of
privileged communication. "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 remarks."24
The appellate court correctly ruled that the petitioners story is not privileged in
character, for it is neither "private communication" nor a fair and true report without
any comments or remarks.
US v. Bustos defined the concept of private communication thus: "A communication
made bona fide upon any subject-matter in which the party communicating has an
interest, or in reference to which he has a duty, is privileged, if made to a person
having a corresponding interest or duty, although it contained criminatory matter
which without this privilege would be slanderous and actionable. A pertinent
illustration of the application of qualified privilege is a complaint made in good faith
and without malice in regard to the character or conduct of a public official when
addressed to an officer or a board having some interest or duty in the matter."25
This defense is unavailing to petitioners. In Daez v. Court of Appeals26 we held that:
As a rule, it is the right and duty of a citizen to make a complaint of any misconduct
on the part of public officials, which comes to his notice, to those charged with
supervision over them. Such a communication is qualifiedly privileged and the
author is not guilty of libel. The rule on privilege, however, imposes an additional
requirement. Such complaints should be addressed solely to some official having
jurisdiction to inquire into the charges, or power to redress the grievance or has
some duty to perform or interest in connection therewith. (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious Atty.
Angara is privileged communication, it lost its character as such when the matter
was published in the newspaper and circulated among the general population. A
written letter containing libelous matter cannot be classified as privileged when it is
published and circulated in public,27 which was what the petitioners did in this case.
Neither is the news item a fair and true report without any comments or remarks of
any judicial, legislative or other official proceedings; there is in fact no proceeding to
speak of. 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 Thoenen, a
private individual seeking a quiet life.
The petitioners also claim to have made the report out of a "social and moral duty to
inform the public on matters of general interest."
In Borjal v. Court of Appeals, we stated that "the enumeration under Art. 354 is not
an exclusive list of qualifiedly privileged communications since fair commentaries on
matters of public interest are likewise privileged. We stated that the doctrine of fair
commentaries 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."28
Again, this argument is unavailing to the petitioners. As we said, the respondent is a
private individual, and not a public official or public figure. We are persuaded by the
reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc.,29 that
a newspaper or broadcaster publishing defamatory falsehoods about an individual
who is neither a public official nor a public figure may not claim a constitutional
privilege against liability, for injury inflicted, even if the falsehood arose in a
discussion of public interest.30
Having established that the article cannot be considered as privileged
communication, malice is therefore presumed, and the fourth requisite for the
imputation of libel to attach to the petitioners in this case is met. The news article is
therefore defamatory and is not within the realm of protected speech. There is no
longer a need to discuss the other assignment of errors, save for the amount of
damages to which respondent is entitled.
In Policarpio v. Manila Times Publishing Co., Inc.,31 we awarded damages where the
defendants deliberately presented a private individual in a worse light that what she
actually was, and where other factual errors were not prevented although
defendants had the means to ascertain the veracity of their report. Such are the
facts obtaining here.
We must point out that Lees brief news item contained falsehoods on two levels. On
its face, her statement that residents of BF Homes had "asked the Bureau of
Immigration to deport a Swiss who allegedly shoots neighbors pets" is patently
untrue since the letter of the spurious Atty. Angara was a mere request for
verification of Thoenens status as a foreign resident. Lees article, moreover, is also
untrue, in that the events she reported never happened. The respondent had never
shot any of his neighbors pets, no complaints had been lodged against him by his
neighbors, and no deportation proceedings had been initiated against him. Worse,
the author of Lees main source of information, Atty. Efren Angara, apparently either
does not exist, or is not a lawyer. Petitioner Lee would have been enlightened on
substantially all these matters had she but tried to contact either Angara or
Thoenen.
Although it has been stressed that a newspaper "should not be held to account to a
point of suppression for honest mistakes, or imperfection in the choice of words,"32
even the most liberal view of free speech has never countenanced the publication of
falsehoods, especially the persistent and unmitigated dissemination of patent lies.33
"There is no constitutional value in false statements of fact. Neither the intentional
lie nor the careless error materially advances societys interest in uninhibited,
robust, and wide-open debate."34 The use of the known lie as a tool is at once at
odds with the premises of democratic government and with the orderly manner in
which economic, social, or political change is to be effected. Calculated falsehood
falls into that class of utterances which "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 The knowingly false statement and the false statement made with
reckless disregard of the truth, do not enjoy constitutional protection" (citations
omitted).35
The legitimate state interest underlying the law of libel is the compensation of the
individuals for the harm inflicted upon them by defamatory falsehood. After all, the
individuals right to protection of his own good name "reflects no more than our
basic concept of the essential dignity and worth of every human being a concept
at the root of any decent system of ordered liberty."36
The appellate court awarded Thoenen moral damages of P200,000.00, exemplary
damages of P50,000.00 and legal fees of P30,000.00, to be borne jointly and
severally by the herein petitioners. In Guevarra v. Almario,37 we noted that the
damages in a libel case must depend upon the facts of the particular case and the
sound discretion of the court, although appellate courts were "more likely to reduce
damages for libel than to increase them."38 So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the
Decision of the Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is
hereby AFFIRMED, subject to the modification that petitioners are ordered to pay,
jointly and severally, moral damages in the sum of P100,000.00, exemplary
damages of P30,000.00, and legal fees of P20,000.00. No costs.
SO ORDERED.
COMPILED CASES:
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA,
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF
THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.)
10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his
laptop or computer, a person can connect to the internet, a system that links him to
other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he
needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the
general public or for special audiences like associates, classmates, or friends and
read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies,
banks, stock exchanges, trade houses, credit card companies, public utilities,
hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or
telephone.
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater information
and facility of communication. But all is not well with the system since it could not
filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of
the system to unjustly ruin the reputation of another or bully the latter by posting
defamatory statements against him that people can read.
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking into
or surreptitiously accessing his bank account or credit card or defrauding him
through false representations. The wicked can use the cyberspace, too, for illicit
trafficking in sex or for exposing to pornography guileless children who have access
to the internet. For this reason, the government has a legitimate right to regulate
the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc
to the computer systems and networks of indispensable or highly useful institutions
as well as to the laptop or computer programs and memories of innocent individuals.
They accomplish this by sending electronic viruses or virtual dynamites that destroy
those computer systems, networks, programs, and memories. The government
certainly has the duty and the right to prevent these tomfooleries from happening
and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating
undesirable cyberspace activities violate certain of their constitutional rights. The
government of course asserts that the law merely seeks to reasonably put order into
cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary restraining
order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for their
commission as well as provisions that would enable the government to track down
and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A.
10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361,
and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:
(1) Illegal Access. The access to the whole or any part of a computer system
without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
required of laws that interfere with the fundamental rights of the people and should
thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a
class of things or persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The
burden is on the government to prove that the classification is necessary to achieve
a compelling state interest and that it is the least restrictive means to protect such
interest.2 Later, the strict scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act accessing
the computer system of another without right. It is a universally condemned
conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers,
professionals who employ tools and techniques used by criminal hackers but would
neither damage the target systems nor steal information. Ethical hackers evaluate
the target systems security and report back to the owners the vulnerabilities they
found in it and give instructions for how these can be remedied. Ethical hackers are
the equivalent of independent auditors who come into an organization to verify its
bookkeeping records.5

Besides, a clients engagement of an ethical hacker requires an agreement between
them as to the extent of the search, the methods to be used, and the systems to be
tested. This is referred to as the "get out of jail free card."6 Since the ethical hacker
does his job with prior permission from the client, such permission would insulate
him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging, deletion or
deterioration of computer data, electronic document, or electronic data message,
without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks
to discourage data interference, it intrudes into the area of protected speech and
expression, creating a chilling and deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally
subject to state regulation, may not be achieved by means that unnecessarily sweep
its subject broadly, thereby invading the area of protected freedoms.7 But Section
4(a)(3) does not encroach on these freedoms at all. It simply punishes what
essentially is a form of vandalism,8 the act of willfully destroying without right the
things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms.
There is no freedom to destroy other peoples computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an
in terrorem effect9 or the fear of possible prosecution that hangs on the heads of
citizens who are minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they instill such kind of fear
is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since
Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no
tendency to intimidate the free exercise of ones constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be valid.11 Petitioner
has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data
and systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith
to profit, mislead, destroy the reputation, and deprive others from registering the
same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with
the appropriate government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection
clause12 in that, not being narrowly tailored, it will cause a user using his real name
to suffer the same fate as those who use aliases or take the name of another in
satire, parody, or any other literary device. For example, supposing there exists a
well known billionaire-philanthropist named "Julio Gandolfo," the law would punish
for cyber-squatting both the person who registers such name because he claims it to
be his pseudo-name and another who registers the name because it happens to be
his real name. Petitioners claim that, considering the substantial distinction between
the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be
his real name or use it as a pseudo-name for it is the evil purpose for which he uses
the name that the law condemns. The law is reasonable in penalizing him for
acquiring the domain name in bad faith to profit, mislead, destroy reputation, or
deprive others who are not ill-motivated of the rightful opportunity of registering the
same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of
equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:x x x x
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging to
another, whether natural or juridical, without right: Provided: that if no damage has
yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process
and to privacy and correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures.13 But the Court acknowledged its existence as early as 1968
in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for Issuance
of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance of these zones
to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any
form of intrusion isimpermissible unless excused by law and in accordance with
customary legal process. The meticulous regard we accord to these zones arises not
only from our conviction that the right to privacy is a "constitutional right" and "the
right most valued by civilized men," but also from our adherence to the Universal
Declaration of Human Rights which mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and "everyone has the right to the protection
of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches16 and seizures, which is the basis of the right to be let alone,
and (b) the right to privacy of communication and correspondence.17 In assessing
the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of
privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of birth,
the name of his spouse if any, his occupation, and similar data.19 The law punishes
those who acquire or use such identifying information without right, implicitly to
cause damage. Petitioners simply fail to show how government effort to curb
computer-related identity theft violates the right to privacy and correspondence as
well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will
not hold water since the specific conducts proscribed do not intrude into guaranteed
freedoms like speech. Clearly, what this section regulates are specific actions: the
acquisition, use, misuse or deletion of personal identifying data of another. There is
no fundamental right to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that
journalists would be hindered from accessing the unrestricted user account of a
person in the news to secure information about him that could be published. But this
is not the essence of identity theft that the law seeks to prohibit and punish.
Evidently, the theft of identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information made public by the
user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established
through the overt acts of the offender, and it may be presumed from the furtive
taking of useful property pertaining to another, unless special circumstances reveal
a different intent on the part of the perpetrator.20 As such, the press, whether in
quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation, directly
or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the
aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the
Constitution.21 They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes
under the penal code, would now be regarded as crimes when done "for favor" in
cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon)
usually worn conspicuously."22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies
into the bedrooms of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the
Cybercrime Prevention Act give a proper perspective on the issue. These
deliberations show a lack of intent to penalize a "private showing x x x between and
among two private persons x x x although that may be a form of obscenity to
some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade,
and pornography for favor and consideration. This includes interactive prostitution
and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual
activityis not novel. Article 201 of the RPC punishes "obscene publications and
exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003
penalizes those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act, transaction, scheme, or
design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate
materials that serve no other purpose than satisfy the market for violence, lust, or
pornography.29 The Court weighed the property rights of individuals against the
public welfare. Private property, if containing pornographic materials, may be
forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30 The Court will not declare Section 4(c)(1)
unconstitutional where it stands a construction that makes it apply only to persons
engaged in the business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of
a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and punishable by
Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through
a computer system: Provided, That the penalty to be imposed shall be (1) one
degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act
of 200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing
prevents the government from invoking the ACPA when prosecuting persons who
commit child pornography using a computer system. Actually, ACPAs definition of
child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA
provision.
Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration of
penalty is a legislative prerogative and there is rational basis for such higher
penalty.32 The potential for uncontrolled proliferation of a particular piece of child
pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person
to "produce, direct, manufacture or create any form of child pornography"33 clearly
relates to the prosecution of persons who aid and abet the core offenses that ACPA
seeks to punish.34 Petitioners are wary that a person who merely doodles on paper
and imagines a sexual abuse of a 16-year-old is not criminally liable for producing
child pornography but one who formulates the idea on his laptop would be. Further,
if the author bounces off his ideas on Twitter, anyone who replies to the tweet could
be considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be
discussed elsewhere below. For now the Court must hold that the constitutionality of
Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial
electronic communication with the use of computer system which seeks to
advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and
(cc) The commercial electronic communication does not purposely include
misleading information in any part of the message in order to induce the recipients
to read the message.
The above penalizes the transmission of unsolicited commercial communications,
also known as "spam." The term "spam" surfaced in early internet chat rooms and
interactive fantasy games. One who repeats the same sentence or comment was
said to be making a "spam." The term referred to a Monty Pythons Flying Circus
scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when
reading options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and
network capacities of internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owners peaceful enjoyment of his property.
Transmitting spams amounts to trespass to ones privacy since the person sending
out spams enters the recipients domain without prior permission. The OSG contends
that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic
ads reduce the "efficiency of computers." Secondly, people, before the arrival of the
age of computers, have already been receiving such unsolicited ads by mail. These
have never been outlawed as nuisance since people might have interest in such ads.
What matters is that the recipient has the option of not opening or reading these
mail ads. That is true with spams. Their recipients always have the option to delete
or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read
his emails, even unsolicited commercial ads addressed to him. Commercial speech is
a separate category of speech which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited
advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as
well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or
of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for making
it is 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 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. 355. Libel means by writings or similar means. A libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means, shall be punished by
prision correccional in its minimum and medium periods or a fine ranging from 200
to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to
form part of it the provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a computer system or any
other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel
provisions of the cybercrime law carry with them the requirement of "presumed
malice" even when the latest jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for conviction.38 Petitioners argue that
inferring "presumed malice" from the accuseds defamatory statement by virtue of
Article 354 of the penal code infringes on his constitutionally guaranteed freedom of
expression.
Petitioners would go further. They contend that the laws on libel should be stricken
down as unconstitutional for otherwise good jurisprudence requiring "actual malice"
could easily be overturned as the Court has done in Fermin v. People39 even where
the offended parties happened to be public figures.
The elements of libel are: (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.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless disregard
of whether it was false or not.42 The reckless disregard standard used here requires
a high degree of awareness of probable falsity. There must be sufficient evidence to
permit the conclusion that the accused in fact entertained serious doubts as to the
truth of the statement he published. Gross or even extreme negligence is not
sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of absence
of actual malice, even when the statement turns out to be false, is available where
the offended party is a public official or a public figure, as in the cases of Vasquez (a
barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law,
mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory
statement where the offended party is a public figure. Societys interest and the
maintenance of good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
disregarded the higher standard of actual malice or malice in fact when it found
Cristinelli Fermin guilty of committing libel against complainants who were public
figures. Actually, the Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by simply
making a general denial, convince us that there was no malice on her part. Verily,
not only was there malice in law, the article being malicious in itself, but there was
also malice in fact, as there was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances
against public figures in the above case, cinema and television personalities, when it
modified the penalty of imprisonment to just a fine of P6,000.00.
But, where the offended party is a private individual, the prosecution need not prove
the presence of malice. The law explicitly presumes its existence (malice in law)
from the defamatory character of the assailed statement.45 For his defense, the
accused must show that he has a justifiable reason for the defamatory statement
even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention
Act violate the countrys obligations under the International Covenant of Civil and
Political Rights (ICCPR). They point out that in Adonis v. Republic of the
Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws should include the
defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement
should constitute an all-encompassing defense. As it happens, Article 361
recognizes truth as a defense but under the condition that the accused has been
prompted in making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth 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 for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against
Government employees with respect to facts related to the discharge of their official
duties.
In such cases if the defendant proves the truth of the imputation made by him, he
shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to
decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression.48 Indeed, the ICCPR states that
although everyone should enjoy freedom of expression, its exercise carries with it
special duties and responsibilities. Free speech is not absolute. It is subject to certain
restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In effect,
Section 4(c)(4) above merely affirms that online defamation constitutes "similar
means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes the
author of the libelous statement or article. Cyberlibel brings with it certain
intricacies, unheard of when the penal code provisions on libel were enacted. The
culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing
style.50 In a sense, they are a world apart in terms of quickness of the readers
reaction to defamatory statements posted in cyberspace, facilitated by one-click
reply options offered by the networking site as well as by the speed with which such
reactions are disseminated down the line to other internet users. Whether these
reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter
that the Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully
abets or aids in the commission of any of the offenses enumerated in this Act shall
be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts
to commit any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any
person who willfully abets or aids in the commission or attempts to commit any of
the offenses enumerated as cybercrimes. It suffers from overbreadth, creating a
chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and
laws on aiding and abetting sufficiently protects the freedom of expression of
"netizens," the multitude that avail themselves of the services of the internet. He
points out that existing laws and jurisprudence sufficiently delineate the meaning of
"aiding or abetting" a crime as to protect the innocent. The Solicitor General argues
that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to
define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing
laws. When a person aids or abets another in destroying a forest,52 smuggling
merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of
sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings online
threatens the heretofore popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have
accessed the internet within a year, translating to about 31 million users.55 Based
on a recent survey, the Philippines ranks 6th in the top 10 most engaged countries
for social networking.56 Social networking sites build social relations among people
who, for example, share interests, activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2
billion people with shared interests use Facebook to get in touch.58 Users register at
this site, create a personal profile or an open book of who they are, add other users
as friends, and exchange messages, including automatic notifications when they
update their profile.59 A user can post a statement, a photo, or a video on Facebook,
which can be made visible to anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to his
friends, anyone on Facebook can react to the posting, clicking any of several buttons
of preferences on the programs screen such as "Like," "Comment," or "Share."
"Like" signifies that the reader likes the posting while "Comment" enables him to
post online his feelings or views about the same, such as "This is great!" When a
Facebook user "Shares" a posting, the original "posting" will appear on his own
Facebook profile, consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of up to
140 characters. These are known as "Tweets." Microblogging is the practice of
posting small pieces of digital contentwhich could be in the form of text, pictures,
links, short videos, or other mediaon the internet. Instead of friends, a Twitter user
has "Followers," those who subscribe to this particular users posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his tweets
available only to his Followers, or to the general public. If a post is available to the
public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting
or republishing another persons tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed
statement; b) the blog service provider like Yahoo; c) the internet service provider
like PLDT, Smart, Globe, or Sun; d) the internet caf that may have provided the
computer used for posting the blog; e) the person who makes a favorable comment
on the blog; and f) the person who posts a link to the blog site.60 Now, suppose
Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She
needs the internet to access her blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the statement that a certain married
public official has an illicit affair with a movie star. Linda, one of Marias friends who
sees this post, comments online, "Yes, this is so true! They are so immoral." Marias
original post is then multiplied by her friends and the latters friends, and down the
line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria
and Linda, comes across this blog, finds it interesting and so shares the link to this
apparently defamatory blog on her Twitter account. Nenas "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas
original tweet and posts this on her Facebook account. Immediately, Pamelas
Facebook Friends start Liking and making Comments on the assailed posting. A lot of
them even press the Share button, resulting in the further spread of the original
posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as "aiding
or abetting?" In libel in the physical world, if Nestor places on the office bulletin
board a small poster that says, "Armand is a thief!," he could certainly be charged
with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel
since he did not author the poster. If Arthur, passing by and noticing the poster,
writes on it, "Correct!," would that be libel? No, for he merely expresses agreement
with the statement on the poster. He still is not its author. Besides, it is not clear if
aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site.
Would a reader and his Friends or Followers, availing themselves of any of the "Like,"
"Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the
complex world of cyberspace expressions of thoughts, when will one be liable for
aiding or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed
Like, Comment and Share) are essentially knee-jerk sentiments of readers who may
think little or haphazardly of their response to the original posting. Will they be liable
for aiding or abetting? And, considering the inherent impossibility of joining
hundreds or thousands of responding "Friends" or "Followers" in the criminal charge
to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg
in a round hole when applied to cyberspace libel. Unless the legislature crafts a
cyber libel law that takes into account its unique circumstances and culture, such
law will tend to create a chilling effect on the millions that use this new medium of
communication in violation of their constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue in Reno v. American Civil
Liberties Union,61 a case involving the constitutionality of the Communications
Decency Act of 1996. The law prohibited (1) the knowing transmission, by means of
a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and
(2) the knowing use of an interactive computer service to send to a specific person
or persons under 18 years of age or to display in a manner available to a person
under 18 years of age communications that, in context, depict or describe, in terms
"patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments
guarantee of freedom of speech for being overbroad. The U.S. Supreme Court
agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223,
is a matter of special concern for two reasons. First, the CDA is a content-based
regulation of speech. The vagueness of such a regulation raises special U.S. Const.
amend. I concerns because of its obvious chilling effect on free speech. Second, the
CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal sanctions may well cause
speakers to remain silent rather than communicate even arguably unlawful words,
ideas, and images. As a practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague regulations, poses greater U.S.
Const. amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great
threat of censoring speech that, in fact, falls outside the statute's scope. Given the
vague contours of the coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional protection. That
danger provides further reason for insisting that the statute not be overly broad. The
CDAs burden on protected speech cannot be justified if it could be avoided by a
more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of
the mouse. Scurrilous statements can spread and travel fast across the globe like
bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying that
oppresses the victim, his relatives, and friends, evoking from mild to disastrous
reactions. Still, a governmental purpose, which seeks to regulate the use of this
cyberspace communication technology to protect a persons reputation and peace of
mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues.
Democracy will be threatened and with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement officials and triers of facts to
prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting"
constitute broad sweep that generates chilling effect on those who express
themselves through cyberspace posts, comments, and other messages.64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his
dissent in Romualdez v. Commission on Elections,65 "we must view these
statements of the Court on the inapplicability of the overbreadth and vagueness
doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount facial challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground absence of due process,
lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here,
one can challenge the constitutionality of a statute only if he asserts a violation of
his own rights. It prohibits one from assailing the constitutionality of the statute
based solely on the violation of the rights of third persons not before the court. This
rule is also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial"
challenge to the constitutionality of a statute even if he claims no violation of his
own rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may
simply restrain himself from speaking in order to avoid being charged of a crime.
The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment regarding
certain uses of the medium creates a chilling effect on the constitutionally-protected
freedom of expression of the great masses that use it. In this case, the particularly
complex web of interaction on social media websites would give law enforcers such
latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on
the internet by liking it? Netizens are not given "fair notice" or warning as to what is
criminal conduct and what is lawful conduct. When a case is filed, how will the court
ascertain whether or not one netizens comment aided and abetted a cybercrime
while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats his wife
and children," then that should be considered an original posting published on the
internet. Both the penal code and the cybercrime law clearly punish authors of
defamatory publications. Make no mistake, libel destroys reputations that society
values. Allowed to cascade in the internet, it will destroy relationships and, under
certain circumstances, will generate enmity and tension between social or economic
groups, races, or religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of transactions
involving the dissemination of child pornography," does this make Google and its
users aiders and abettors in the commission of child pornography crimes?68 Byars
highlights a feature in the American law on child pornography that the Cybercrimes
law lacksthe exemption of a provider or notably a plain user of interactive
computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content
provider and cannot be held civilly liable for any action voluntarily taken in good
faith to restrict access to or availability of material that the provider or user
considers to be obscene...whether or not such material is constitutionally
protected.69
When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads the
Facebook mobile application, the user may give consent to Facebook to access his
contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of
annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises
apprehension on the part of internet users because of its obvious chilling effect on
the freedom of expression, especially since the crime of aiding or abetting ensnares
all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners
point out, formal crimes such as libel are not punishable unless consummated.71 In
the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on
Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)
(2) on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5
should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same
reason not objectionable. A hacker may for instance have done all that is necessary
to illegally access another partys computer system but the security employed by
the systems lawful owner could frustrate his effort. Another hacker may have
gained access to usernames and passwords of others but fail to use these because
the system supervisor is alerted.72 If Section 5 that punishes any person who
willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted
hacking. But this is not right. The hacker should not be freed from liability simply
because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the
innocent.73 While this may be true with respect to cybercrimes that tend to sneak
past the area of free expression, any attempt to commit the other acts specified in
Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1)
as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special laws, as the case
may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other means.
In using the technology in question, the offender often evades identification and is
able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without
prejudice to any liability for violation of any provision of the Revised Penal Code, as
amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine
that a single set of acts may be prosecuted and penalized simultaneously under two
laws, a special law and the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which
is not an essential element of the other.74 With the exception of the crimes of online
libel and online child pornography, the Court would rather leave the determination of
the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material
cannot be the subject of two separate libels. The two offenses, one a violation of
Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of
R.A. 10175 involve essentially the same elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a
new crime but is one already punished under Article 353. Section 4(c)(4) merely
establishes the computer system as another means of publication.75 Charging the
offender under both laws would be a blatant violation of the proscription against
double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely
expands the ACPAs scope so as to include identical activities in cyberspace. As
previously discussed, ACPAs definition of child pornography in fact already covers
the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage incurred
or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the
penalty of reclusion temporal or a fine of at least Five hundred thousand pesos
(PhP500,000.00) up to maximum amount commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1)
of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2)
of this Act shall be punished with the penalties as enumerated in Republic Act No.
9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be
imposed shall be one (1) degree higher than that provided for in Republic Act No.
9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3)
shall be punished with imprisonment of arresto mayor or a fine of at least Fifty
thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos
(PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall
be punished with imprisonment one (1) degree lower than that of the prescribed
penalty for the offense or a fine of at least One hundred thousand pesos
(PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or
both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data and
Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the
crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on
Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial
Communications; and Section 5 on Aiding or Abetting, and Attempt in the
Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative
prerogative. Here the legislature prescribed a measure of severe penalties for what
it regards as deleterious cybercrimes. They appear proportionate to the evil sought
to be punished. The power to determine penalties for offenses is not diluted or
improperly wielded simply because at some prior time the act or omission was but
an element of another offense or might just have been connected with another
crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative
department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with
due cause, shall be authorized to collect or record by technical or electronic means
traffic data in real-time associated with specified communications transmitted by
means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date,
size, duration, or type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities
in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon
written application and the examination under oath or affirmation of the applicant
and the witnesses he may produce and the showing: (1) that there are reasonable
grounds to believe that any of the crimes enumerated hereinabove has been
committed, or is being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is essential to the
conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such
evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or
record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from
government snooping into the messages or information that they send to one
another.
The first question is whether or not Section 12 has a proper governmental purpose
since a law may require the disclosure of matters normally considered private but
then only upon showing that such requirement has a rational relation to the purpose
of the law,79 that there is a compelling State interest behind the law, and that the
provision itself is narrowly drawn.80 In assessing regulations affecting privacy rights,
courts should balance the legitimate concerns of the State against constitutional
guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for
there is a need to put order to the tremendous activities in cyberspace for public
good.82 To do this, it is within the realm of reason that the government should be
able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data
is a part, aims to provide law enforcement authorities with the power they need for
spotting, preventing, and investigating crimes committed in cyberspace. Crime-
fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory countries to adopt legislative
measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or record such
data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has
been committed, adequate for fighting cybercrimes and, therefore, real-time data is
superfluous for that purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,84 transmitting viruses,85 lasciviously
exhibiting sexual organs or sexual activity for favor or consideration;86 and
producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from
internet cafs, from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses and can
neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of
computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a
subsequent recourse to court-issued search and seizure warrant that can succeed in
ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do
not provide ample safeguards against crossing legal boundaries and invading the
peoples right to privacy. The concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together
to create zones of privacy wherein governmental powers may not intrude, and that
there exists an independent constitutional right of privacy. Such right to be left alone
has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme
Court classified privacy into two categories: decisional privacy and informational
privacy. Decisional privacy involves the right to independence in making certain
important decisions, while informational privacy refers to the interest in avoiding
disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic data in
real-time seek to protect.
Informational privacy has two aspects: the right not to have private information
disclosed, and the right to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to the right to privacy, this Court has
laid down a two-fold test. The first is a subjective test, where one claiming the right
must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one
society is prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its
application to a particular person or group, petitioners challenge to Section 12
applies to all information and communications technology (ICT) users, meaning the
large segment of the population who use all sorts of electronic devices to
communicate with one another. Consequently, the expectation of privacy is to be
measured from the general publics point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the latter, a
third person, the traffic data needed for connecting him to the recipient ICT user. For
example, an ICT user who writes a text message intended for another ICT user must
furnish his service provider with his cellphone number and the cellphone number of
his recipient, accompanying the message sent. It is this information that creates the
traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service.
Those who post letters have no expectations that no one will read the information
appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets and in a
way that may be likened to parcels of letters or things that are sent through the
posts. When data is sent from any one source, the content is broken up into packets
and around each of these packets is a wrapper or header. This header contains the
traffic data: information that tells computers where the packet originated, what kind
of data is in the packet (SMS, voice call, video, internet chat messages, email, online
browsing data, etc.), where the packet is going, and how the packet fits together
with other packets.93 The difference is that traffic data sent through the internet at
times across the ocean do not disclose the actual names and addresses (residential
or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their
contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of
the messages and uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service
providers communications system will put his voice message into packets and send
them to the other persons cellphone where they are refitted together and heard.
The latters spoken reply is sent to the caller in the same way. To be connected by
the service provider, the sender reveals his cellphone number to the service
provider when he puts his call through. He also reveals the cellphone number to the
person he calls. The other ways of communicating electronically follow the same
basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme
Court reasoned that telephone users in the 70s must realize that they necessarily
convey phone numbers to the telephone company in order to complete a call. That
Court ruled that even if there is an expectation that phone numbers one dials should
remain private, such expectation is not one that society is prepared to recognize as
reasonable.
In much the same way, ICT users must know that they cannot communicate or
exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them out
of the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly
random bits of traffic data are gathered in bulk, pooled together, and analyzed, they
reveal patterns of activities which can then be used to create profiles of the persons
under surveillance. With enough traffic data, analysts may be able to determine a
persons close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be
disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to
protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or
record by technical or electronic means traffic data in real-time. Petitioners point out
that the phrase "due cause" has no precedent in law or jurisprudence and that
whether there is due cause or not is left to the discretion of the police. Replying to
this, the Solicitor General asserts that Congress is not required to define the
meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint at
the meaning it intends for the phrase "due cause." The Solicitor General suggests
that "due cause" should mean "just reason or motive" and "adherence to a lawful
procedure." But the Court cannot draw this meaning since Section 12 does not even
bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is
akin to the use of a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be
used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and
lacks restraint. While it says that traffic data collection should not disclose identities
or content data, such restraint is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from looking into the
identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from
certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with
specified communications." But this supposed limitation is no limitation at all since,
evidently, it is the law enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law enforcement
authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to
privacy.
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that would
authorize the search of what is akin to a "moving vehicle." But warrantless search is
associated with a police officers determination of probable cause that a crime has
been committed, that there is no opportunity for getting a warrant, and that unless
the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal
protection to internet users and that the procedure envisioned by the law could be
better served by providing for more robust safeguards. His bare assurance that law
enforcement authorities will not abuse the provisions of Section 12 is of course not
enough. The grant of the power to track cyberspace communications in real time
and determine their sources and destinations must be narrowly drawn to preclude
abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the
void-for-vagueness doctrine and the overbreadth doctrine. These doctrines however,
have been consistently held by this Court to apply only to free speech cases. But
Section 12 on its own neither regulates nor punishes any type of speech. Therefore,
such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred
institutions to monitor individuals and place them under surveillance in ways that
have previously been impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this enclave
of private life marks the difference between a democratic and a totalitarian
society."96 The Court must ensure that laws seeking to take advantage of these
technologies be written with specificity and definiteness as to ensure respect for the
rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and
subscriber information relating to communication services provided by a service
provider shall be preserved for a minimum period of six (6) months from the date of
the transaction. Content data shall be similarly preserved for six (6) months from the
date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by a
service provider is used as evidence in a case, the mere furnishing to such service
provider of the transmittal document to the Office of the Prosecutor shall be deemed
a notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the
order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation
of the right to property. They liken the data preservation order that law enforcement
authorities are to issue as a form of garnishment of personal property in civil
forfeiture proceedings. Such order prevents internet users from accessing and
disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to
their authors or recipients and are to be considered private communications. But it is
not clear that a service provider has an obligation to indefinitely keep a copy of the
same as they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscribers information, traffic data or relevant data
in his/its possession or control within seventy-two (72) hours from receipt of the
order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena.
Petitioners objection is that the issuance of subpoenas is a judicial function. But it is
well-settled that the power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court
warrant, a function usually lodged in the hands of law enforcers to enable them to
carry out their executive functions. The prescribed procedure for disclosure would
not constitute an unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and
seizure warrant is properly issued, the law enforcement authorities shall likewise
have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined
in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage
medium; and
(e) To render inaccessible or remove those computer data in the accessed computer
or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has
knowledge about the functioning of the computer system and the measures to
protect and preserve the computer data therein to provide, as is reasonable, the
necessary information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time to complete the
examination of the computer data storage medium and to make a return thereon
but in no case for a period longer than thirty (30) days from date of approval by the
court.
Petitioners challenge Section 15 on the assumption that it will supplant established
search and seizure procedures. On its face, however, Section 15 merely enumerates
the duties of law enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been seized by virtue of
a court warrant. The exercise of these duties do not pose any threat on the rights of
the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement authorities,
as the case may be, shall immediately and completely destroy the computer data
subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or
examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service providers storage
systems and prevent overload. It would also ensure that investigations are quickly
concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of property
without due process of law. But, as already stated, it is unclear that the user has a
demandable right to require the service provider to have that copy of the data saved
indefinitely for him in its storage system. If he wanted them preserved, he should
have saved them in his computer when he generated the data or received it. He
could also request the service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data
is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue
an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the
right against unreasonable searches and seizures. The Solicitor General concedes
that this provision may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware,
as well as files that contain texts, images, audio, or video recordings. Without having
to go into a lengthy discussion of property rights in the digital space, it is
indisputable that computer data, produced or created by their writers or authors
may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal
computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in
ones papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable. Further, it states that no search
warrant shall issue except upon probable cause to be determined personally by the
judge. Here, the Government, in effect, seizes and places the computer data under
its control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section
19 operates as a restriction on the freedom of expression over cyberspace. Certainly
not all forms of speech are protected. Legislature may, within constitutional bounds,
declare certain kinds of expression as illegal. But for an executive officer to seize
content alleged to be unprotected without any judicial warrant, it is not enough for
him to be of the opinion that such content violates some law, for to do so would
make him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on
speech. Restraints on free speech are generally evaluated on one of or a
combination of three tests: the dangerous tendency doctrine, the balancing of
interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any
provision of the cybercrime law. Taking Section 6 into consideration, this can actually
be made to apply in relation to any penal provision. It does not take into
consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the
constitutional guarantees to freedom of expression and against unreasonable
searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV
hereof specifically the orders from law enforcement authorities shall be punished as
a violation of Presidential Decree No. 1829 with imprisonment of prision correctional
in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or
both, for each and every noncompliance with an order issued by law enforcement
authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument
is that the mere failure to comply constitutes a legislative finding of guilt, without
regard to situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential
Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the offense
which are defined therein. If Congress had intended for Section 20 to constitute an
offense in and of itself, it would not have had to make reference to any other statue
or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person who
knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of criminal cases by committing any
of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt, during
which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency body
to be known as the Cybercrime Investigation and Coordinating Center (CICC), under
the administrative supervision of the Office of the President, for policy coordination
among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and
functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of
real time commission of cybercrime offenses through a computer emergency
response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave
the Cybercrime Investigation and Coordinating Center (CICC) the power to formulate
a national cybersecurity plan without any sufficient standards or parameters for it to
follow.
In order to determine whether there is undue delegation of legislative power, the
Court has adopted two tests: the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it
leaves the legislature such that when it reaches the delegate, the only thing he will
have to do is to enforce it.1avvphi1 The second test mandates adequate guidelines
or limitations in the law to determine the boundaries of the delegates authority and
prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate
and implement a national cybersecurity plan. Also, contrary to the position of the
petitioners, the law gave sufficient standards for the CICC to follow when it provided
a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies that can
be used to protect cyber environment and organization and users assets.104 This
definition serves as the parameters within which CICC should work in formulating
the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the
law to "prevent and combat such [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international cooperation."105 This
policy is clearly adopted in the interest of law and order, which has been considered
as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited
commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time;
and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual
organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to
preserve traffic data and subscriber information as well as specified content data for
six months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued
warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data
after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center
(CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with
respect to the original author of the post; but VOID and UNCONSTITUTIONAL with
respect to others who simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of
cybercrimes as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on
Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and
Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to
Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application
of Section 7 that authorizes prosecution of the offender under both the Revised
Penal Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the
crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of
Republic Act 10175 and Article 353 of the Revised Penal Code constitutes a violation
of the proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under
both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a violation of the same proscription, and, in
respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.