By CARMELA FONBUENA
abs-cbnNEWS.com/Newsbreak

Thursday’s conviction of The Daily Tribune publisher and editor in chief Niñez Cacho Olivarez resulted in two calls of action from journalists. One, libel should be decriminalized. Two, journalists should be reminded to get their facts right.

While libel charges against journalists is common, a conviction is not. Often, the cases just lurk in courts until they are dismissed or withdrawn.

Thus media groups are concerned over Judge Winlove Dumayas’s decision. Dumayas, of the Makati city regional trial court Branch 59, ordered Olivarez to be punished with imprisonment of six months up to two years 10 months, and 40 days—aside from a fine of P5 million for moral damages.

The case is one of 48 cases filed by a leading law firm Villaraza Cruz Marcelo and Angangco, or "The Firm," and its co-founder F. Arthur Villaraza against Olivarez for a series of stories published in 2003 involving them in the controversy over the mothballed Ninoy Aquino International Airport (NAIA) Terminal III.

The court allowed Olivarez to pay bail as she sets to file for a motion for reconsideration.

Olivarez said the decision is unfair. "It is clearly an injustice…. The decision here is politically influenced."

Nevertheless, she said that the decision will not affect her reporting. "Why should it slow me down? I’m definitely not guilty of libel." Olivarez maintained that the story was of grave public importance and interest. The story constitutes fair comment, she said.

Call to decriminalize libel
"Whatever abuse of privilege she may have committed, I don’t think a criminal punishment is merited. Putting her in jail is not a commensurate penalty for the kind of mistake committed," said Vergel Santos of the Center For Media Freedom and Responsibility (CMFR).

"In a working democracy, the free flow of information and ideas—even if there are mistakes and lapses—is crucial. Criminalizing libel tends to restrict that flow of information," said Chay Hofilena of the Communications Department of the Ateneo De Manila University.

The same call was made by the National Union of Journalists of the Philippines (NUJP). "Even as NUJP reserves its comment on the merits of the case, we want to point out that the case once again highlights the urgency of decriminalizing our antiquated libel law." NUJP also hit The Firm for its "vindictiveness" in filing 48 cases.

Check your facts
Hofileña highlights the lesson in this particular libel case. "This case is also instructive for journalists because it reminds us of the importance of getting our facts right."

"What is at stake here is the credibility of the press. Inaccurate reporting tends to undermine that credibility," she said.

The court found the Tribune article, "Firm’s Partners Ensure Victory for AEDC"—to be "derogatory," "malicious," and "not true."

The story alleged that then Ombudsman Simeon Marcelo handpicked people supposedly "connected" to his own law firm—The Firm—to handle a complaint filed by its client Asia’s Emerging Dragons Corp. (AEDC) against the winning bidder in the build-operate contract for the NAIA Terminal III and former secretaries of the Department of Transportation and Communications. This is supposedly to make sure that the complaint will be forwarded to the Sandiganbayan.

"The accused did not present evidence showing that she verified the truth of the contents of the article, especially considering the nature and seriousness of the accusations she made against the private complainants. The accused even admitted that she did not make any effort to ask private complainants to verify her information," the decision said.

It turned out, one of the people supposedly "connected" to The Firm—then deputy Ombudsman for Luzon Vic Fernandez—was never associated with the law firm. "This was admitted by the accused herself when, without knowledge of whether deputy ombudsman Fernandez was ever connected to CVC Law office, she still proceeded to make this unverified claim," the decision said.

Fine over prison
NUJP noted that the jail sentence "apparently goes against the grain of the Supreme Court’s earlier suggestion for judges to prefer fines over prison terms for libel."

NUJP is referring to the Administrative Circular No. 08-2008, entitled Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel case, which was issued by the Supreme Court in January this year. It told judges to opt for fines instead of imprisonment.

Dumayas, in the decision, explained why. "The penalty of imprisonment is proper. It appears that the attack by the accused on private complainants was calculated and intentional…. The libelous acts she committed are serious considering her deliberate act of constantly targeting private complainants and her utter failure to verify her false claims. A mere fine would depreciate the seriousness of the offense."

"The article’s insinuation of influence peddling and taking advantage of the public office did not escape this Court’s attention…. The title of the article alone already imputes to the private complainants deceit and dishonesty and the manipulation of government agencies to the benefit of the entity AEDC referred to in the article. A reading of the entire article would confirm the reader’s impression of the Firm’s deceit and dishonesty," the decision said.

"The private complainants were consistently referred to in the article as having a hold on the Arroyo administration’ legal arena, who have pervasive power and influence in the country’s judiciary, with particular mention of the former members of the CVC Law Offices who are now serving the government."

Not fair comment
The court disagreed with Olivarez’s argument that her story constituted fair comment. "The article failed to satisfy this well known standard [of fair comment]," the decision said. "There is no proof presented by the accused that the contents of the article is true or that the accused exercised a reasonable degree of care before writing and publishing it.

The court also upheld that the law firm and Villaraza are private entities. There is more protection that is afforded journalists who report on public officials. Defense of fair comment on matters of public interest does not apply when those being attacked are private individuals.

"When it comes to private entities or individual, you have to be more careful," Hofileña added.

"Even the fact that the private complainants’ former colleagues were appointed to certain government positions did not make those who remained public figures. They remained as private citizens not having performed any act of voluntariness that would warrant a change in their position," the court said.

Vindication
According to The Firm lawyer Miguel Silos, "The decision of the court is a vindication for The Firm and a triumph for fair, accurate, and truthful journalism." He said that the stories of Tribune caused the law firm "incalculable damage."

"We firmly support freedom of speech and expression and will continue to fight for its preservation. But we will not and will never stand idly by when it is abused to tarnish the professional reputation of our Firm—a reputation we meticulously and painstakingly built through more than 28 years of maintaining the highest professional standards," Silos said.

"It’s a disservice to the professional achievements of the members of the firm and collective success of the firm owing to its members to say that we’ve achieved this level of success solely because of our close association with certain politicians. We’ve been engaged in the practice of law for over 28 years and built a strong reputation.," said another lawyer from The Firm, Rodel Cruz.