Primer on Internet Libel

What is Libel?

Libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or 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. 333, Revised Penal Code).

How is it committed?

Libel is committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.

How is it different from defamation and slander?

The generic term defamation, which includes slander and libel, means injuring a person’s character, fame or reputation through false and malicious statements. Oral defamation is called slander.

What are the elements or requisites that must be proved in libel?

There are four requisites that must be shown: (1) a defamatory imputation; (2) existence of malice; (3) publication of the imputation; and (4) the victim must be identifiable.

What is a defamatory imputation?

It is an imputation of a crime, or of a vice or defect, real or imaginary, or any act or 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. The words used must be considered in its entirety, and given their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it is shown that they were used and understood in another sense. The issue is not what the writer of an alleged libel means, but what the words used by him mean.  It is enough that words are calculated to induce the hearers to suppose and understand that the subject person is guilty of certain offenses, or are sufficient to impeach his honesty, virtue, or reputation, or to hold the person up to public ridicule.

What is considered as “publication” under the 3rd requisite?

Publication is defined as the “communication of the defamatory matter to some third person or persons.” It means “making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.” Publication is present even if only one other person reads the defamatory matter, aside from the author and the complainant.

Is there no libel in the internet?

The internet, while not yet in existence when the law on libel was passed, is a means of communicating a defamatory matter to a third person. This falls  under the definition of “publication”, which is an element of libel. The blogger “publishes” the post or article.  If a blog is used as an online diary, accessible only by the author, then there is no publication and, hence, no libel. The arguments so far support the existence of libel in the internet.

How do you show that malice exists?

Malice or ill-will in libel is either proven (malice in fact) or presumed in view of the grossness of the imputation (malice in law). The general rule is that every defamatory imputation is presumed to be malicious (malice in law). There is no need to prove that.

Since this is the general rule, what are the exceptions?

The presumption of malice (malice in law) does not apply in case of privileged matters, which may be absolute or qualified.

What is an absolutely privileged communication?

An example would be speeches or debates made by Congressmen or Senators in the Congress or in any of its committees. No libel exists even if there is actual proof of malice. This, however, clearly does not apply to bloggers.

What is a conditionally privileged communication?

This is an exception to the presumption of malice (malice in law), which means that it must be proved (malice in fact).

What are the conditionally privileged communications?

1. A private communication made by any person to another in the performance of any legal, moral or social duty.

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.

3. Fair commentaries on matters of public interest, covered by the constitutional guarantee of freedom of the speech and of the press.

What are the requisites of a “private communication” defense under No. 1 above?

The following requisites must be present: (1) the person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; (2) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and (3) the statements in the communication are made in good faith and without malice.

What is the doctrine on fair commentaries on matters of public interest?

This is a valid defense in libel or slander. “The doctrine of fair comment 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.  If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.”

Who is considered as a “public figure”?

A public figure is a “person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a ‘public personage.’  He is, in other words, a celebrity. ” To be included in this category are those who have achieved some degree of reputation by appearing before the public. It includes anyone who has arrived at a position where the public attention is focused upon him as a person, including, but not limited, to the following: a public officer, an actor, a professional baseball player, a pugilist, any other entertainer, famous inventors and explorers and war heroes.

Would the fair commentary defense cease to exist if the subject matter is not a “public figure”?

Not necessarily. Even an ordinary person could be the subject of a public comment.  The court previously gave this scenario: “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 public’s 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 participant’s prior anonymity or notoriety.”

Is truth a defense?

Truth is not a defense if the prosecution shows malice in fact.

May I be liable if I re-post a libelous matter?

Yes. Liability for libel is not limited to the original author or publisher. A person who re-post or re-publish a libelous material may also be subject to the same liabilities for that subsequent publication. As long as there is malice, it does not matter that the defamatory matter is previous posted by someone else.

What is the penalty for libel?

Prision correccional in its minimum and medium periods or a fine ranging from P200 to P6,000, or both, in addition to the civil action which may be brought by the offended party.

Did the Supreme Court decriminalize libel?

No. The SC issued Administrative Circular No. 08-2008, providing for Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases, instructs all courts and judges to take note of certain preferences in imposing penalties for the crime of libel. “The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice.” The Circular took effect on 25 January 2008.

Is there any case or jurisprudence wherein only a fine was imposed?

Yes, there are a number of illustrations mentioned in the Circular. One of the cases cited is Fernando Sazon v. Court of Appeals and People of the Philippines, wherein the Supreme Court modified the penalty imposed upon petitioner, an officer of a homeowners’ association, for the crime of libel from imprisonment and fine in the amount of P200.00, to fine only of P3,000.00, with subsidiary imprisonment in case of insolvency, for the reason that he wrote the libelous article merely to defend his honor against the malicious messages that earlier circulated around the subdivision, which he thought was the handiwork of the private complainant. There are other illustrations stated in the Circular.

Does the Circular remove imprisonment as a penalty for libel?

No. The Circular explicitly states that it “does not remove imprisonment as an alternative penalty for the crime of libel under Article 355 of the Revised Penal Code.” In other words, the Circular does not “decriminalize” libel and the court could still impose imprisonment if called for by the circumstances. Also, even if only a fine is imposed but the accused fails or refuses to pay, the accused could be imprisoned, applying the Revised Penal Code provisions on subsidiary imprisonment.

In issuing circulars of such nature, is the Supreme Court amending the law?

Some critics argue that the Supreme Court is, in effect, amending the law, referring to such act as “judicial legislation”. The Supreme Court, however, is merely interpreting the law. The law itself allows the judge to choose between the following penalties: (a) fine only; (b) imprisonment only; OR (c) both fine and imprisonment.

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