A libel is a public and malicious imputation of a crime, or 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 judicial person, or to blacken the memory of one who is dead (Article 353, Revised Penal Code).
The elements of defamation are: (1) There must be defamatory imputation; (2) It must be public; (3) It must be malicious; and (4) The imputation must definitely refer to a particular person, living or dead, or to a juridical person that can be identified. The law protects the honor of a dead person, as well as a living person (Monton, 116 Phil 1116). Libel via traditional media (writing, painting, lithography, engraving, radio, photograph, theatrical exhibitions, cinematographic exhibition or similar means) is punishable by imprisonment of six months to four years and/or fine of P200—P6,000 (Article 355, Revised Penal Code). The Cybercrime Law of 2012, which makes reference to Article 353 of the Revised Penal Code, punishes cyber libel, which covers new media—like the Internet.
A person found guilty of libelous comments on the Internet could spend up to 12 years in prison with no possibility of Parole. “In 2016 a year of heated political debates that also took place in cyberspace, online libel emerged as the top complaint of Filipino Internet users, with 494 complaints recorded compared to 311 recorded in 2015. It comprised 26.49 percent of the 1,865 cybercrime complaints for 2016.” (Rappler, citing Katerina Francisco @kaifrancisco published January 27, 2017).
Several Bills have been filed both in the Senate and the House of Representatives to decriminalize traditional and cyber or e-libel. Historically, libel was conceived as a repressive tool against criticisms and insults to the colonial powers who ruled us. Our libel laws are “archaic”, as they go as far back as the Spanish Codigo Penal and were reinforced by the 1932 Revised Penal Code during the American occupation. Notwithstanding that Section 4, Article III of our Constitution provides that “no law shall be passed abridging the freedom of speech, of expression, or of the press xxx”. We have not eliminated our archaic and repressive libel provisions in our Revised Penal Code.
Alexander Adonis was jailed in 2010 and was in prison for three years for libel. He was convicted without any representation. Joaquin Briones was locked up for five years for libel. Upon his release, he made an editorial, which was, likewise, made subject to another libel complaint. Sometime in August this year, Ted Failon and members of his staff were ordered arrested, and he posted bail in a Tagaytay City court where former Metropolitan Manila Development Authority (MMDA) Chairman Francis N. Tolentino (now Presidential political adviser) filed a libel case for alleged irregular purchases by the MMDA chairman exposed by Failon. The National Union of Journalists of the Philippines (NUJP) has renewed its call for Congress to decriminalize defamation, saying the case of Failon “again underscores how onion-skinned government officials wield the antediluvian criminal libel law as a bludgeon in their vain hope to cow critical journalism into silence” (InterAksyon, August 16, 2017).
I am currently a respondent allegedly in at least two libel cases. A powerful law firm headed by a panicking law dean has publicly threatened to file more libel cases against me for every statement I utter allegedly maligning their/his reputation. Obviously, the threat is intended to silence me and suppress my freedom of expression. I agree with the NUJP and other advocacy groups like the Center for Media Freedom and Responsibility that criminal libel is one of the most abused means to suppress freedom of expression and press freedom in the Philippines. Those who claim their reputations have been tarnished should squarely respond to the valid issues raised against them instead of seeking to jailing journalists, citizens (and now lawyers) for taking a stand on subjects of public interest and significance.
In his dissenting opinion in Disini, et al v. Secretary of Justice (GR 2033335), February 11, 2014, Justice Marvic Mario Victor F. Leonen said:
“In essence, Philippine libel law is a ‘fusion’ of the Spanish Law on defamacion and the American law on libel. It started as a legal tool to protect the government and the status quo. The bare text of the law had to be qualified through jurisprudential interpretation as the fundamental right to expression became clearer. In theory, libel prosecution has slowly evolved from protecting both private citizens and public figures to its modern notion of shielding only private parties from defamatory utterances.
“Libel law now is used not so much to prosecute but to deter speech. What is charged as criminal libel may contain precious protected speech. There is very little to support the majority view that the law will not continue to have this effect on speech.
“It is time that we now go further and declare libel as provided in the Revised Penal Code and in the Cybercrime Prevention Act of 2012 as unconstitutional.” But he pointed out that decriminalization of libel does not mean that no recourse can be obtained for scurrilous and defamatory remarks on reputation. Any offended party may opt to pursue his case through the institution of a civil action for damages where the court may restore his sullied name.
Moreover, there is a strong clamor in the international community to decriminalize libel, and this sentiment is embodied under Article XIX, General Remarks No. 47 of the International Covenant on Civil and Political Rights, of which the Philippines is a state party. It provides:
“Defamation laws must be crafted with care to ensure that they comply with paragraph 3, and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defenses as the defense of truth and they should not be applied with regard to those forms of expression that are not, of their nature, subject to verification. At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense. Care should be taken by States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously—such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others. (Underscoring supplied.)
Indeed, if senators and representatives enjoy immunity from prosecution even if they defame, discredit, dishonor, accuse others in their privilege speeches or inquiries in aid of legislation, ordinary mortals like us common Filipinos must enjoy the same immunity. With advanced technology, common Filipinos air their opinions and grievances online on matters they feel are of public concern or which affect their well-being. Decriminalizing libel under Article 335 of the Revised Penal Code and Cyberlibel under the cybercrime law of 2012 will encourage public discourse and debate without fear or threat of incarceration or restraint of liberty.
As to allegations of damage to one’s reputation and honor, as in the libel cases filed against me, it assumes that one indeed has reputation and honor to protect. Our libel laws recognize truth as a defense—and more often than not, the truth hurts!