Tuesday, October 02, 2007

A case against libel decriminlization

I do not support decriminalization of libel.
Many Filipino journalists are advocating sweeping decriminalization of libel.
I think, strategically it is unhelpful to the working press.
To reform our libel laws, I propose the legislation of the actual malice principle, mainly as instructional guides of the trial courts.
I propose removal of prison terms for speech of high constitutional values.

Over re-action

The band wagon decriminalization libel is an over-reaction.
Members of the press are going overboard by pushing to decriminalize criminal libel.
This is a classic case of burning down the house to roast a pig.
As a journalist, I would be among the first to protect press freedom.
As a student of libel law, I would be more cautious about total decriminalization of libel.
Criminal libel law exists because it serves to balance private interests vis-a-vis the widespread guarantees of freedom of speech.
Historically, there has been an unending tension between the need to protect private reputation, and the need to protect the freedom to speak.
The thrust has always been to find a perfect balance between two opposite interests.
Decriminalization of libel provides no assurance that this balance of interests will be preserved.

Levels of constitutional protections

The constitutional guarantees of freedom of speech and of the press exist on different levels.
A greater degree of constitutional protection is accorded that kind of speech that dwell into the affairs of society, commonly called “public speech” or “political speech.”

The problem with our libel law

The problem with our criminal libel law is its inability to distinguish the hierarchical protections that the constitution accords free speech.
The libel law does not distinguish, for instance, speech exercised in pursuit of political ends, and speech that is of public concern, as against speech of which the public has no concern.
The solution is not to eliminate (decriminalize) libel law, but to fix (amend) it.
There are areas in libel that still need to have criminal sanctions, if only to maintain that balance between private reputation interests and press freedom interests.
Libel entails penal sanctions because it is a measure designed to restrain a victim from resorting to violence or committing breach of the peace to vindicate his honor.
Instead of vindicating honor by the gun, the criminal libel law is offered so honor can be vindicated through the gavel.
What is objectionable is the sweeping effort to totally decriminalize libel, which would result in a wholesale or packaged eradication of a relief designed to maintain that balance of interests.
True, there is a need to remove penal sanctions in defamation cases involving political speech, including speech that involve public officials or public figures on matters of public interest. This is the right direction.
But the removal of penal sanctions should not be made upon all types of cases.
For instance, libel concerning speech on purely private matters involving private individuals, of which the community has no concern, need not be decriminalized. Speech of purely private concern are characterized as having reduced constitutional value compared to speech of public concern. This was discussed in the United States Supreme Court case of Dun & Bradstreet Inc. versus Greenmoss Builders Inc., 472 U.S. 749 (1985).
If there is an indiscriminate removal of penal sanctions in libel cases, the result would be the creation of an imbalance between the need to protect private reputation and to uphold free speech.
If libel is decriminalized, those whose private reputation are attacked will not have adequate means of legal relief, and would likely resort to committing breach of the peace.

Proposal

Our proposal then is to carefully institute amendments in our libel laws, so that we will substantially reduce (or virtually eliminate) the clutch of criminal libel on those speech that have been accorded the highest constitutional protections.
Specifically, it is proposed that an amendment be made to legislate the actual malice doctrine and place it in the statue books.
An amendatory provision in our libel statute, particularly on Article 354 of the Revised Penal Code may be crafted in the following manner:

“Public officials or public figures shall be prohibited from recovering damages for defamatory falsehoods relating to their official or public conduct, unless they prove that such statement was made with actual malice, that is, with knowledge of its falsity or with reckless disregard of whether or not it was false. In cases involving private individuals concerning speech of public concern, such private individuals shall not recover damages unless they prove fault and falsity. Provided that, in no case shall imprisonment be imposed.”
We propose that this suggested amendment be the start of legislative discussions for developing our libel statutes.
With this amendatory provision, we retain criminal libel as a relief for any speech other than political speech.

1 comment:

Rolly Cavan. dna5o4@yahoo.com said...

Mr. Editor,

Decriminalizing libel is a risky idea. It makes society vulnerable to threats of public peace and tranquility.

In Beauharnais v.Illinois, the editor's analysis was that "Common law criminal libel statutes were apparently designed to discourage feuding individuals from launching personal attacks upon one another in public. Such laws were not applied to punish allegedly libelous assault upon groups. The libel laws would be an effective and desirable method of preventing rude and abusive public campaigns of hatred against particular races or religious groups. Although such laws would tend to stifle protected freedom of speech and press, it may be possible to imagine situations were such restraint would be justified by a need to protect against threats of public peace and tranquility."

A statute which make it a crime to libel the members of any class or group is not repugnant to the Constitution. Originally, libel was a common law crime to which the truth was not a defense. Now, in most states, truth is a defense to a criminal libel charge only if publication was "made with good motives and for justifiable ends".

"Profane and pejorative expressions may be punishable by law without interfering with anyone's constitutionally guaranteed privileges" - a reasonable exercise of the state to preserve the peace and protect the public.