In 1964, as part of what Nick Joaquin called “the battle of the books,” the campaign of Ferdinand Marcos released his campaign biography, For Every Tear a Victory, written by Hartzell Spence. My father’s sister was furious, on the basis of a reference in the book, to her elder sister being the “inamorata” of Marcos (he had, indeed, courted my father’s sister, then their elder sister, then my aunt again after her elder sister was killed and she herself became a widow). As my aunt understood it, “inamorata” carried with it an aspersion on her elder sister’s morals and so she wanted to sue. It was on the basis of Marcos causing the distribution of the book domestically, that she felt he ought to be the one sued.
In some (though not all) ways more of a pragmatist than his sister, my father didn’t think that suing was worth it. I don’t know whether this was from believing that you cannot libel the dead, or from his own scholarly bent (Agoncillo once made a complimentary comment on his objectivity concerning his father), or an appreciation that libel is only of limited political use (Quezon had wanted to sue the American journalist John Gunther for remarking, in a profile, that his “expense accounts are wonderful to behold,” until his close friend the American newspaper publisher Roy Howard advised him it wasn’t worth it as a public figure has to roll with the punches, so to speak).
But she felt so strongly about it that he felt obliged to support her as a matter of family solidarity although in most other things they had their own minds (she supported Manglapus in that election; he supported Macapagal: ironically, while both knew Marcos, my aunt had been on quite friendly terms with him most of their adult lives, so she was turning her back on a long-standing friendship). The case was filed and became something of a cause celebre at the time; but the case couldn’t prosper because Marcos was elected in November, 1964 and thereafter, as president, Marcos was immune from suit.
Still, Marcos wrote a public letter of explanation, with expressions of regret that hurt he never intended had been caused by the book, and this was delivered personally by Imelda to my aunt (“Your godson, Bong-Bong, wants to say goodbye on his way to going abroad to study,” was apparently the pretext that made delivery of the letter to my aunt possible, if I recall the stories correctly).
It seems this letter of apology, in the President’s own handwriting, and which was carried in the papers, was satisfactory as during Marcos’s 2nd term, my father accepted an appointment as ambassador to Brazil, and it was on the way to his posting that my father heard of the imposition of martial law and telephoned his declining the appointment to Manuel Collantes (not strictly a resignation, since he hadn’t presented his credentials to the Brazilian government). I don’t know, however, if the case was ever formally withdrawn by the family, although I vaguely recall hearing, after Edsa, that the case files had been purged during martial law. I do recall that the book was really a non-issue for my father, who never ran out of reasons to fulminate against Marcos, but that for him, the point of no return was martial law and nothing else.
Now all of this is by way of a necessary introduction to help explain what informs my own opinion when it comes to libel. The citizen has a right to sue; the official, while sharing in the citizenry’s rights, seems to me to have less of a valid reason to sue, as a public figure. At the heart of an accusation of libel is that great harm has been dealt to the reputation of someone, so grave as to require adjudication by the courts. But that if the harm has been done to a reputation, then an apology or a denunciation by the offending party of the cause of that harm, should suffice. If an untruth, a slander, is what’s objected to, then rectification of that untruth, the slander, is the ultimate good to be achieved.
I do not recall my aunt or even my father ever expressing an interest securing damages or even having Marcos imprisoned: they simply wanted the record to be set straight concerning their dead sister. Neither of them being lawyers though as familiar enough with its provisions, the distinction they made -the ultimate objective they hoped to achieve- affected how they thought the law ought to be applied. As they saw it, justice would have been served by a conviction -not the punishment it might have entailed- and at least on my father’s part, I assume Marcos’ letter was fully in keeping with achieving the ultimate aim of the suit.
Libel suits, as a recourse for aggrieved parties, as a means to rectify a wrong, would probably be meaningless if no other penalty other than apology was attached to a libel conviction. For this reason, a fine makes sense, if not to actually drive the offending party to penury, then at least to reimburse the costs for those who filed the suit. For this reason, as most other countries have it, so should be: libel as something that calls for a civil case. Considering libel a crime that justifies imprisonment, is, however, a throwback to older conceptions of justice that should be obsolete: a relict of the age of public executions, of public humiliation, and generally using the law to suppress, and not to actually achieve justice.
In general I strongly believe the Revised Penal Code has many provisions that are obsolete, that represent attitudes towards justice and punishment that reflect attitudes of the era in which it was passed that are no longer in keeping with the way our country and society has evolved. Among the provisions that should be revisited is the law on libel. The Penal Code was passed for the particular purpose of maintaining foreign rule, and for establishing penalties for defying that rule outside the narrow confines of what the alien power was comfortable with. That our own governments have found it convenient to retain those limitations doesn’t validate the Penal Code, it only shows how we have to apply pressure on officialdom to discard those attitudes and assumptions.
Did The Firm have a right to sue Ninez Cacho Olivarez? Yes. Ought it to have demanded an apology? By all means. Olivarez had the right to decide if she should apologize or not: it was not in her nature to consider apologizing, not least because she felt she was telling the truth. There’s the rub: the law, as it stands, does not consider truth to be a defense. Is this right, or wrong? It just is: this is the harshness of the law, what sets it apart from justice -and what makes all laws an effort to approximate justice, at best.
The law is subtle enough to distinguish between opinions -for which no one should have to go to jail or pay fines- and assertions that claim certain opinions are facts, assertions that the legal system can be called upon, basically, to debunk and impose a penalty if proven that this was undertaken not out of honest belief, but malicious intent. My objection is the start and end result of this process, which is detention and jail time.
What then of the Firm’s pious pronouncement that having secured a conviction, it isn’t interested in damages? A just attitude, perhaps: underscoring what The Firm claims is its interest in the truth, and nothing more, as determined by the court (according to the built-in assumptions of the law!). But that leaves The Firm with a claim to a moral victory by virtue of the court’s convicting Olivarez, but also, the delight of seeing her in jail.
Does her going to jail promote justice, or the truth, or does it serve as a deterrent to future libel? No, no, and no. It proves The Firm is, what everyone knows it is, anyway –malakas.
It proves that the law, ultimately, is blind to the very cause that’s supposed to be at the heart of any libel case: that there is truth, there are lies, that to lie carries with it consequences, among them that the courts can help arrive at the truth and expose a lie. As the law stands, it says that if you are energetic enough, with enough resources, to relentlessly pursue a case, then the law will work on your side: since the law assumes that if you’re pissed enough never to let go of a case, then it will ultimately take your side, regardless of whether what was written was true, or not: at least if you aren’t an official, because the law concedes that for public officials, you simply have to roll with the punches.
For a discussion on the law and the assumptions it makes, see Notes of Marichu C. Lambino:
The general rule in libel law is that “Every defamatory imputation is presumed malicious; truth is not a defense”. That is, the moment a person is maligned (or defamed), the “maligner” is presumed to have been motivated by ill will. This is the only criminal law provision; that is (of the 300 or so provisions in the Revised Penal Code) and hundreds of special criminal laws, the libel law is the only criminal law provision that presumes malice. In ALL criminal cases, there is a presumption of innocence; in libel however, the only overt act required to establish malice is simply the defamatory imputation; once that is shown, malice is presumed; it’s called MALICE-IN-LAW. BUT, but, BUT: if the accused in a libel case can show that the report is based on “good motives or justifiable ends”, that is:
1) The report or statement is a matter of public interest and concern (for example, it involves public officials or public figures and their public activities) AND
2) The report or statement is true; OR
3) If false, it is based on credible sources and the reporter verified, but (for example when the events unfolded) the report turned out to be false, it was an honest mistake and not a “reckless disregard etc.”
If the accused in a libel case is able to show these three (well, not the three but number one and number two together; or number one and number three together), then he/ she is home; the burden shifts back to the prosecution. The prosecution now has to show that: The report or statement was absolutely false and not only was it absolutely false, there was “reckless disregard,”, i.e., there were no sources at all or the sources were all bogus. This is called MALICE-IN-FACT. (for example, intelligence reports; in Brillante vs. CA and Jejomar Binay where the accused relied on intel reports, the accused was convicted of libel).
Other examples of bogus sources are text messages from people you don’t know. (That’s why i’m surprised when, during live reports, the news anchor or reporters says “Text messages are going around that he is the financier, etc…” and they don’t know who are sending those text messages!; and those news anchors and reporters get away with it; they’re still broadcasting today.)…
Or maybe the report doesn’t have any sources at all. If it can be shown to be absolutely false and not just the result of an honest mistake but that, the report had no sources at all or was based on fabricated sources or bogus sources, the accused would be found liable.
But this is a tall order. I said here, absolutely false. Is there anything that is absolutely false? (oh… my philosophical side is coming out, i have to suppress it, hahaha) In New York Times vs. Sullivan, the Supreme Court in effect said that if there was some truth to the report or if the report is substantially true, the Court will rule in favour of protecting the ability to report freely (the Court said it better rhetorically).
And not only do i ask the question, is there anything that is absolutely false; in Hustler Magazine vs. Falwell, the Supreme Court said “and there is no such thing as a false opinion”.
A defense of libel involving imprisonment, is over at smoke:
Imagine what would happen if some journalist decides he’s tired of seeing his neighbor John Doe. Out of spite, he cooks up a story – complete with shadowy witnesses who all maintain that they will reveal their identities at the right time – and starts demolishing John Doe’s rep by calling him a drug user. If libel were decriminalized, what would John Doe’s recourse be?
And that’s just assuming John Doe is a private individual. He’d be in deeper shit if he also happened to be a government official. According to the Supreme Court, government officials have to exercise a greater degree of acceptance of even the harshest criticism – they have to be like Caesar’s wife, the Court said; more virtuous that Caesar himself. And that injunction applies even when the subject of criticism is not work-related. So poor John Doe, who doesn’t even know what crack looks like suddenly has to just grin and bear it while his good name gets tore down. And all because journalists have to be free to criticize.
That’s a load of bull.
The irony is that these journalists who loudly and frequently assert that no one should be above the law and accountability are now angling for precisely that kind of impunity for themselves. How twisted is that.
Newton’s law states that for every action, there is an equal and opposite reaction. The law on libel is that equal and opposite force; it is the individual’s guarantee that he can push back and that he can’t be pushed around, even by someone who claims to be a journalist.
But the assumption is that libel primarily exists and should exist as a cudgel for the citizenry to beat over the heads of abusive journalists. The libel laws apply to anyone who writes, who takes pen to paper whether in a newspaper, or who publishes a book or a pamphlet; and assumes the law operates blindly and without being susceptible to the nudges, winks, blandishments and bamboozling of the powers-that-be, at whose beck and call policemen and judges are more more likely to be than they are solicitous of the citizenry.
And a further point -this wasn’t justice, this was “sampling”- see The Daily Tribune editorial for June 6:
[D]espite a Supreme Court circular making a libel conviction’s penalty a fine of P6 thousand instead of a jail term, the court meted out the punishment of a six months to close to three years jail term, plus P33 thousand for actual damages and even P5 million for “moral damages,” considering, as the ruling said that the latter’s (The Firm’s) professional standing in society, they being highly reputed lawyers.” Such fulsome praise in a ruling.
To top it all, there went the Firm’s lawyers, announcing that the Firm would be donating the P5 million to the Philippine Press Institute to assist the journalists in their libel suits.
What? They who ensure that a journalist is convicted and jailed and made to pay P5 million for this one count of libel and even argue in court that Olivares should be denied bail after the conviction, even when it is not final and executory and will definitely be appealed, now say they will be assisting journalists in their libel suits?
Funny, but other newspapers wrote just about the same things about the firm, and yet only the Daily Tribune was singled out by Villaraza, as it was he, and not his law firm that alleged the crime of libel.
The case stemmed from one of 48 stories that appeared in The Tribune where The Firm was linked to irregularities over the controversial decision of President Arroyo to abort a $450 million contract to build the Ninoy Aquino International Airport (Naia) Terminal 3, which up to this day remains mothballed.
The decision is a landmark for stifling the freedom of the press…
A P5 million fine would be enough to have dire consequences for a growing newspaper such as The Tribune…
The libel conviction of Olivares is but a continuation of the constant pressure applied on The Tribune under Gloria’s administration.
The moves against Olivares and The Tribune then and now, however, were directed not exactly at the critical newspaper and its publisher, who they know cannot be cowed, but on the whole media sector.
Addendum: Neal Cruz, who’s been around long enough to know how everything works, advocates the retention of libel as a criminal act. He points out the judge proved Olivarez failed to wriggle out of the charges. Since he’s read the decision and I haven’t, his thoughts have added weight:
Failure to check on the truth of an allegation is interpreted by the courts as malice. And this is a common mistake of journalists in a hurry. Malice is present when it is shown that the author of the libelous item made such remarks with knowledge that it was false or with reckless disregard of whether it was false or not. Failure to check on the veracity of an allegation is reckless disregard and is interpreted as malice.
Another common error is that public officials and public figures are fair game; the public has the right to know what they are doing. Public officials are those who are elected or appointed to public positions; public figures are those who voluntarily thrust themselves into the public eye, such as movie stars, entertainers, society matrons, prominent businessmen, artists, athletes, etc. But it does not mean that anybody who attracts public attention is a public figure if he did not voluntarily thrust himself into the limelight. He is a private individual who has private rights and it is very risky to defame him.
Still another error is “fair comment.” Many believe that any column is fair comment.
But the Supreme Court laid down the guidelines for a fair comment on matters of public interest:
“Comment which is true or which, if false, expresses the real opinion of the author, such opinion having been formed with a reasonable degree of care and on reasonable grounds.” An opinion must be based on fact. A columnist cannot make a false accusation and say “that is my opinion.”
This is where the judge condemned Ninez. Dumayas said the evidence shows that the allegations in Ninez’s article are not true and that she “did not exercise reasonable degree of care or good faith efforts to arrive at the truth before writing and publishing the article.” Also “the accused did not present evidence showing that she verified the truth of the contents of the article.” She “even admitted that she did not make any effort to ask private complainants to verify her information.”
Another of her defenses is that F. Arthur L. Villaraza of the CVC law office is a “public figure” and therefore cannot sue. He is not, the judge said. “The fact that private individuals are involved in events that attract media attention is not proof that they are public figures since they may have been dragged unwillingly into the controversy.”
Which brings up a point we ought to consider: that there are, of course, writers who invite libel charges, who relish them, in fact, seek them.