Decriminalizing libel is not the solution—Miguel Silos

Posted at 06/05/2008 5:27 PM

By Miguel Silos

The Constitution of the Philippines enshrines the freedom of the press in Article III, Section 4, which states that: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

The local press has undoubtedly thrived under the mantle of this protection, with our country being seen by the international community as having the “freest, most vibrant and outspoken” media in Southeast Asia. A mere glance at most newspapers shows that our journalists rarely hold back their punches and do not mince their words.

Yet the push to decriminalize libel has not faded from the public discourse but has gained a stronger clamor. In recent days, there has been talk that libel should just be made grounds for civil action. These moves are, however, misplaced. Decriminalizing libel will do more harm than good.

Current libel laws and jurisprudence maintain a functional balance between protection of journalists from harassment while retaining an avenue for redress by private persons victimized by abuses of press freedom. This is a balance that must be preserved, and not tipped one way or the other.

Criminal libel laws give advantage to journalists

When writing about matters of public interest, in relation to public figures, journalists have a clear, almost insurmountable advantage. The Supreme Court itself has stated that when faced with withering criticism, public figures should turn the other cheek. Take the bitter pill while being pilloried, as it were.

Thus, in one of the leading cases on libel, public figures were admonished that they “should not be onion skinned.” In legal-speak, the doctrine was enunciated that “when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable.”

The foregoing doctrines are given life in that if the journalist correctly claims that he was merely making a fair comment on matters of public interest in relation to a public figure, one of the key elements of libel, malice, will not be presumed, but must be proven. This presents the prosecution with a big hurdle.

Malice is not easy to prove. In the first place, malice is a state of mind. Thus, the prosecution must present proof of ill-will, hatred, or purpose to injure by the journalist. When, however, writing on public issues, a journalist may easily claim that his intention in writing a damaging article was to inform the public and not due to some grudge he has against the public figure.

Moreover, it is not enough in a libel prosecution for a public figure to prove that the allegations in the publication are false. He has to prove that the journalist acted with the knowledge that what he was publishing was false or he published the same with reckless disregard of whether it was false or not.

Proof of this is again no easy task. Indeed, any prosecutor would be hard pressed to present evidence that an author knew of the falsity of what he was writing or he did not exert enough effort to verify his claims.   

Thus, journalists should not fear a criminal prosecution of libel when it comes to criticizing public figures in the performance of their public function. The libel law and the interpretation thereof is skewed in their favor.

Criminal libel laws give efficient redress to private individuals

During the course of interpreting libel laws vis a vis the freedom of the press, the doctrine evolved that libel laws should be given greater enforcement when it concerns private individuals who are put up to public scorn and ridicule.

The rationale for bestowing upon private individuals greater protection is summed up in the following: “the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an `influential role in ordered society.’ He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood.”

It is a sad fact in our country that “AC/DC”  (attack and collect – defend and collect) and “envelopmental” journalists exist. They prey not only on public figures but also on private citizens.

To decriminalize libel would leave most of us private citizens with no defense against such rapacious journalists. Thus, libel laws lend private individuals a potent weapon that they would not otherwise have against unscrupulous media practitioners who have tarnished, or threaten to tarnish their name. Indeed, left to his own devices, Juan de la Cruz would have no way of clearing his good name.

If filing a civil case is the only option for an everyday man to clear his name, this is an option many would not choose.

In order to serve as a proper deterrent against journalists, the damages sought in a civil case cannot be a mere pittance. A journalist would hardly pay any heed to civil cases that do not threaten to dent his way of living. To sufficiently make a corrupt journalist quake in his boots, the amount of damages should, naturally, be high. Any small amount would not deter him from continuing his libelous ways.

To charge such an amount for damages, however, does not come free. In civil cases, the amount of the filing fee is pegged to a certain percentage of the amount of damages in the complaint. Hence, if civil cases were the only option, most citizens would be daunted, right at the start, from even filing a case for damages against a journalist. The prospect of high filing fees would force him to simply suffer in silence.

Don’t fix what ain’t broke

Moreover, civil cases are devoid of the coercive processes built in the criminal procedure. There would be no prospect of arrest facing the journalist. There would be no fear of imprisonment either.

Having to put up bail would not be on the journalist’s mind. Faced with a civil case, the journalist would at most, chafe at having to hire a lawyer and be annoyed at the inconvenience of having to monitor a case through the years. It would not, however, serve as any form of deterrent.

Thus, keeping criminal libel laws has the salutary purpose of allowing the majority of our citizens adequate protection against those who make their livings from poison pens. Without these criminal laws, most of us private citizens would be left with no choice but to take the law into our own hands. And that is not a choice that should be allowed to be made.

Criminal laws against libel have been around for centuries. Their resilience proves that they do work at keeping at bay those who abuse the freedom of the press.

On the other hand, its evolution to protect discourse on matters of public interest shows that journalists have a recognized and respected place in society that deserves protection. Thus, libel laws at their current state serve a dual purpose that should not be suddenly abolished. As the old adage goes, don’t fix what ain’t broke.

The author is a partner at the Villaraza Cruz Marcelo & Angangco law firm.