Should libel be decriminalized?

PENDING BEFORE CONGRESS ARE SEVERAL bills to decriminalize libel. These bills seek either to abolish it as a crime, or to delete imprisonment as a sanction for the offense and retain fine as the only penalty.

Abuse of constitutional right. In his testimony before the Senate, retired Supreme Court Justice Vicente V. Mendoza opposed the decriminalization of libel. He said that the Constitution guarantees freedom of speech and other forms of communications. But like other rights, freedom of speech can and had been used as calumny or invective to destroy the reputation or good name of others.

To protect the reputation of peace-loving citizens, Articles 353 to 364 of the Revised Penal Code penalize libel, slander and intriguing against honor. The right to one’s honor is oftentimes more valuable than the right to property or wealth. A reputation that is tattered by scurrilous defamation is more difficult to restore than stolen goods or money, which can more easily be returned or replaced.

On the other hand, the powerful and the rich can likewise abuse their right to prosecute for libel or other crimes. To make it difficult, expensive and time-consuming for newspersons to defend themselves, plaintiffs choose inconvenient venues for their suits or hire odious lawyers who heckle and harass penniless defendants. Worse, journalists become victims of unexplained disappearances and extralegal killings.

Alternative to decriminalization. Nonetheless, freedom of speech can be protected from the harassments of wealth and power, without decriminalizing libel. To do this, Justice Mendoza proposed a distinction between “political” and “private” libel. Political libel refers to the defamation of public officials or public figures like movie and TV stars for acts done in the performance of their official duties or show-biz careers.

Here, Justice Mendoza recommended that the law on libel be amended to treat criticisms of public officials as “privileged information;” meaning, the criticisms or imputations should be presumed to have been written or uttered in good faith even though they may actually be defamatory. Hence, the writer or broadcaster can be held guilty of libel only if the prosecution can prove “actual malice,” meaning that (1) the imputation is false; and (2) the defendant knew the imputation to be false.

In libel committed against private individuals, however, the present law requiring the defendant to prove lack of malice would be retained to preserve the right to reputation and privacy of these individuals. Sen. Richard Gordon, chair of the Senate Committee on Constitutional Amendments, supported the proffered distinction. Sens. Juan Ponce Enrile and Joker Arroyo expressed reservations against the decriminalization of libel, saying the law is already lenient on media.

The Mendoza proposal is consistent with the landmark decision of the Supreme Court in “Vasquez v Court of Appeals” (Sep. 15, 1999) holding that truth is a complete defense in libel suits involving public officials. The Court ruled that “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 a reckless disregard of whether it was false or not?”

In short, conviction in a libel case filed by a public official may be obtained only by showing that the defamatory words were (1) false and (2) made with the knowledge of their falsity or with a reckless disregard of whether or not they were false. This ruling reversed old jurisprudence requiring the accused to prove absence of malice in order to be acquitted.

Preferred penalty for libel. In addition to making it difficult for public officials to obtain libel convictions, the Court has recently issued Administrative Circular 08-2008, dated Jan. 25, 2008, “indicating an emergent rule of preference for the imposition of fine only rather than imprisonment in libel cases.” The Penal Code gives magistrates the discretion to impose either a fine or imprisonment (or both). But in a long line of cases from 1996 to 2006 that are listed in the circular, the highest court has opted to impose fine only. And so should the lower courts.

The Supreme Court has recently applied this preferred penalty in “Fermin vs People of the Philippines” (March 28, 2008). After finding defendant Cristinelli (Cristy) Fermin, publisher of “Gossip Tabloid,” guilty of libel committed on the Spouses Annabelle Rama and Eduardo (Eddie) Gutierrez, the high court — speaking through Justice Antonio Eduardo B. Nachura — imposed only a fine of P6,000 “in lieu of imprisonment” of from three months and 11 days minimum to a maximum of eight months and 21 days imposed by the Regional Trial Court of Quezon City and affirmed by the Court of Appeals.

The judiciary has always been extra careful in looking after the safety, well-being and protection of news professionals. It knows that journalists are often subjected to harassment suits that are not only time-consuming but also annoying and degrading.

Even before Congress could decriminalize libel, or enact the carefully crafted “privilege” status of criticisms against public officials proposed by Justice Mendoza, the Court has gone ahead with both jurisprudence and circulars to encourage fair criticism especially of public officials, and to protect journalists from harassments.

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