From watchdogs to dog-watchers

In all the discussions raised against the right-of-reply bills, so far 2nd district Rep. George Arnaiz advances what---to my mind---is the most compelling argument against the legislative proposal.
There are bills pending in the senate and the house of representatives that would, in a nutshell, compel newspapers to publish replies to published criticisms, under pain of fines.
The bills require newspapers to publish the replies providing equal space and, in the same prominence that the criticisms were published.
According to Rep. Arnaiz, the bills are violative of the due process clause of the constitution.
He argues that compelling newspapers to publish replies free-of-charge is an economic deprivation of a newspaperman’s property without due process of law.
Arnaiz’ constitutional argument differs from others that are focused on the constitutional guarantee to freedom of the press.
Here, Arnaiz showed wisdom because he has sounded an economic reality of newspapermen---specially community newspapermen---even if he has never been newspaperman.
You see, from the very start, the premise is that newspapers have to be a business.
It is not by choice.
It is by force of circumstance.
You can study all forms and sizes of newspapers in the free world--- from the biggest (New York Times, Washington Post, etc.) to the smallest tabloids.
The common denominator is that newspapers have to operate as a business.
When one runs or operates a newspaper, there are inherent costs.
The publisher or owner has to take care of the costs of the newsprint, the ink, the labor costs (printers, composers, news-gatherers, editors, administrative personnel, etc) the electricity costs, chemicals, etc.
Where will the publisher get the money to cover the costs?
The publisher is not a government official, many of whom get money from kick backs, commissions, pork barrel, horse-trading, etc.
The publisher is also unlike the Red Cross which can receive donations, or a foundation that lives on charity.
So, everything you read in the newspaper---from page one to the last page---money has to be generated to make it a going concern.
In the case of columnists, they are chosen to write freely.
But their writings occupy space.
For every space that a columnist occupies for his or her article, there is a corresponding cost borne by the publisher or newspaper owner.
It is the columnist who, above anyone else, criticizes public official actions.
That is his job.
That is a very vital element in our democracy.
Checks and balance.
Here come these bills that say that for every criticism published, there must be compelled publishing of a reply.
Note that the reply should be of equal space, and of similar prominence.
If a columnist criticizes a public official for his official act, the bill compels the newspaper to publish the reply.
The foremost question is (actually this was my very first question):
Who pays for the space used-up or occupied by the reply?
Free? Libre? Bokong?
From the stand point of the newspaper publisher or owner, the government is exacting an economic burden because of what one of his columnists wrote.
By the way newspaper publishers or owners are separate from columnists. They are usually two different animals. (The bills don’t even distinguish)
So it is a double whammy for the publisher or owner.
The publisher bears the cost of the space for the columnist.
Now, if the bills become law, the publisher will also have to bear the cost of the reply.
Loosely speaking, double jeopardy (for lack of better description or analogy).
As a consequence, the newspaper publisher will start telling your political columnists: “Stop criticizing public officials because the cost will double”.
What is the effect?
For one, the corrupt will be happy.
The incompetent and the inept will rejoice.
No one will expose them anymore.
Newspapers will no longer be “watchdogs”.
Instead, they will become “dog watchers”.
Goodbye press freedom.
The publisher—specially the provincial publishers---will start telling columnists to just write about why the sky is blue, or why the sun is hot, or why cockfighting uses roosters and not hens.
That way, by staying away from controversial stories, the publisher can evade costly replies, and devote his newspaper space to generate income to cover the cost of the column.
I believe George Arnaiz saw this imminent and, should I say dangerous, anomaly.
And his argument has jurisprudential precedence.
Let me reinforce it, if I may.
In the case of Miami Herald Publishing Co. versus Tornillo decided by the U.S. Supreme Court on June 25, 1974 (418 U.S. 241), the court struck down as unconstitutional a right of reply bill in Florida.
The supreme court said: “The Florida statute exacts a penalty on the basis of the content of a newspaper. The…penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print”
In simplified but superb legal articulation, the U.S. Supreme Court said: Faced with the penalties ... editors might well conclude that the safe course is to avoid controversy. Therefore,… political and electoral coverage would be blunted or reduced.
If I may add, a blunted or reduced political discussion would undermine the constitutional guarantee to freedom of the press.
If these right-of-reply bills are passed into law, there is a chance that the editor-publisher of this paper---to avoid added costs---may instruct me to just write about my inconsequential childhood, my boring past love-lives, or whether during my adolescence there was ever a time I entertained gay tendencies, or to just be creative without being controversial.
Well, I’m already pondering on that possibility.

Press freedom – a human right

Lest we forget, press freedom is among the universally cherished freedoms around the world.

Evidence of this is the Universal Declaration of Human Rights, which was proclaimed, and adopted by the General Assembly of the United Nations sixty years ago, or on December 10, 1948, to be exact.

One of the cherished values is to respect the opinion of others, and their right to express their opinions, no matter how absurd, irrational, stupid it may be.

The freedom to have an opinion and express it openly is explicitly recognized as a basic human right.

To respect the opinion of others is to uphold human dignity.

Article 19 of the Universal Declaration of Human Rights expressly acknowledges that:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

It is incumbent upon all freedom loving people not only to practice the sacred right to hold an opinion and express the same, but to protect it, defend it, and assert it if threatened, specially by the powers the be.

In our local community, and in the experience of the Negros Chronicle, we have encountered various attempts and threats to suppress the free flow of information and opinion, particularly by those who have been given temporary opportunities to sit in the corridors of power.

Instead of cherishing, upholding and promoting this basic human right, those wielding borrowed political power---who by the way are the sterling models of political mediocrity and untold immaturity--- try endlessly to stifle such right.

We thus find it fitting to recall the words of the late Justice Hugo Black, a famed member of the United States Supreme Court, in his concurring opinion in the infamous Pentagon Papers case (New York Times versus United States, 402 U.S. 713 [1971]) where the Nixon administration had tried to suppress the flow of vital information relating to the Vietnam war:

“The Press was protected so that it could bare the secrets
of the government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government. And paramount among the responsibilities of a
free press is the duty to prevent any part of the government
from deceiving the people."

We thus re-commit our obligation as freedom-loving individuals, not only to practice these liberties, but to defend them, and assert them, so the free flow of information to the people is maintained.

We join the whole community of nations yearning for freedom, as we commemorate that historic proclamation of fundamental and basic human rights sixty years ago by people united in belief, and uncompromisingly committed to uphold human dignity.

Fermin versus Court of Appeals GR 157643

Here is the digest I made of the recent libel conviction handed down by the Supreme Court in Fermin versus Court of Appeals (March 28, 2008):
If the utterances are false, malicious or unrelated to a public officer's performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability
Fermin versus CA
Facts:
On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2) criminal informations for libel were filed against Cristinelli Salazar Fermin and Bogs C. Tugas before the Regional Trial Court (RTC) of Quezon City. Fermin was charged being the publisher of “Gossip Tabloid” while Tugas was editor-in-chief.
The Informations quoted the portion of the article complained against which was published on June 14, 1995, which read:
"MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DOON SI ANNABELLE"
"IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT DIN ANG ASUNTO NILA DU'N, BUKOD PA SA NAPAKARAMING PINOY NA HUMAHANTING SA KANILA MAS MALAKING PROBLEMA ANG KAILANGAN NIYANG HARAPIN SA STATES DAHIL SA PERANG NADISPALKO NILA, NAGHAHANAP LANG NG SAKIT NG KATAWAN SI ANNABELLE KUNG SA STATES NGA NIYA MAIISIPANG PUMUNTA NGAYON PARA LANG TAKASAN NIYA SI LIGAYA SANTOS AT ANG SINTENSIYA SA KANYA"
Fermin raised the defense of press freedom. She admitted to having a close association with congressman Roilo Golez and Paranaque Mayor Joey Marquez, and that she used her skills as writer to campaign for them during the 1995 elections where Eddie Gutierrez, was also a candidate for congress running against Golez.
Fermin also argued that to sustain a conviction for libel it is mandatory that the publisher knowingly participated in or consented to the preparation and publication of the libelous article.
Issue:
1. Whether or not Fermin can validly raise trhe defense of press freedom.
2. Whether or not as publisher she is liable for libel.
Held:
1. Fermin cannot validly raise the defense of press freedom.
If the utterances are false, malicious or unrelated to a public officer's performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. While complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and commentators such as Fermin, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious comments, whether in broadcast media or in print, about their personal lives.
Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the press. Although a wide latitude is given to critical utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism does not automatically fall within the ambit of constitutionally protected speech.
2. Fermin, as publisher is guilty of libel, whether or not she had actual knowledge and participation, having furnished the means of carrying on the publication of the article purportedly prepared by the members of the Gossip Reportorial Team, who were employees under her control and supervision. It is worthy to note that Fermin was not only the "publisher", as shown by the editorial box of Gossip Tabloid, but also its "president" and "chairperson" as she herself admitted on the witness stand. She also testified that she handled the business aspect of the publication, and assigns editors to take charge of everything. Obviously, Fermin had full control over the publication of articles in the said tabloid. Her excuse of lack of knowledge, consent, or participation in the release of the libelous article fails to persuade TEAcCD
Note:
Instead of the penalty of imprisonment of 3 months 11 days to one year 8 months and 21 days, the Supreme removed the penalty of imprisonment (pursuant to Administrative Circular No. 08-2008) and imposed a fine of P6,000 each. But the Supreme Court slapped Fermin with moral damages of P500,000 each private complainant.

The Cristy Fermin ruling

The Supreme Court handed down a libel decision affirming the conviction of showbusiness t.v. talk show host Cristinelli Salazar Fermin (Tita Cristy).
The decision is quite significant for purposes of our discussion on the develoments of libel law in the country.
The decision was promulgated last March 28, 2008.
First, the Supreme Court invoked its Administrative Circular No. 08-2008 to the effect that preference is to impose a fine, instead of sending convicts to jail.
Originally, the trial court imposed a penalty of imprisonment against Cristy Fermin.
On this score, Cristy Fermin, and perhaps media practioners should welcome this judicial benevolence.
It affirms our long advocacy that nobody should be jailed for libel.
Nevertheless, the Supreme Court imposed a hefty fine against Cristy Fermin, P500,000 each to the complainants Anabelle Rama and husband Eddie Gutierez for the anguish they suffered.
That's one million pesos. A lot of money.
But more importantly, what I find significant about the decision against Fermin is the pronouncment by the Supreme Court that one cannot utter false malicious statements, even against public officials or public figures (like Rama and Gutierez), if these utterances are unrelated to the performance of official functions or irrelevant to matters of public interest.
Here is that quote from the Supreme Court decision: "If the utterances are false, malicious or unrelated to a public officer's performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability."
I think this is very well in consonance with the American rulings in New York Times versus Sullivan and related cases of Curtis versus Butts/Associated Press versus Walker.
Simply put, media people can criticize public officials and public figures.
But for such criticisms to remain within the ambit of press freedom protections,
they must be related to the perofrmance of their duties (if public officials) and relevant to matters of public interest (in case of public figures).
Here, while undeniably Eddie Gutierez and Anabelle Rama were public figures, criticims about their being sellers of high-priced kalderos in the U.S., or their being fugitives in the U.S.(which by the way, were proven to be false) are not covered by press freedom protections.
Bottom line is, press freedom, while free, must still be exercised with utmost responsibility.

Defend Press Freedom

Yesterday was the global celebration of World Press Freedom Day.
There is a need to actively defend press freedom.
Press freedom is not just for the press.
Press freedom is freedom for everyone.
If there is press freedom, the free flow of information is assured, and the people will be kept inform of the political developments in society.
If press freedom is suppressed, then the free flow of information is cut off.
There are many still who prefer to suppress press freedom.
Suppressing press freedoms means depriving the people obtaining vital information that is needed to maintain order in society.
If there is no order in society, it would adversely affect the people's welfare.
That is why everyone has a stake in the upholding the right to a free press.
Press freedom is a fundamental right.
It is always press freedom that is suppressed first by a regime that seeks to intill repression.
When President Marcos declared martial law, one of the very first freedoms he tok away from the people was press freedom.
He closed down all newspapers, and broadcast facilities nationwide.
He jailed the newsmen.
As a result, people were kept in the dark, depriving them of their right to know the truth.
The people were instead fed with government propaganda, even if this did not reflect the truth about what was happening.
As a result, the Philippines sank to the dark ages, and was easily overtaken by its neighbors in southeast asia like Malaysia, Singapore, Brunei, Thailand.
In the meantime, the rulers looted the national coffers, leaving the millions of Filipinos poor and hungry.
We do not want to go back to this dark period of untruths and repression.
Therefore, it is important that press freedom must always be upheld.
Defend it while it exists.

World Press Freedom Day

World Press Freedom Day will be commemorated on May 3.
We pay tribute to courageous journalists who continue to fight for the freedom to speak.
We pay tribute to Alex Adonis, who has been languishing in jail, because he pursued the freedoms that j we cherish.
Below is a press release on the commemoration of world press freedom day from the National Union of Journalists in the Phliippines

Adonis, other journalists challenge Philippine libel laws before UN

DAVAO CITY — Backing up the case of jailed Davao broadcaster Alexander Adonis, journalist groups questioned the country's libel laws before the United Nations Commission on Human Rights, saying that jailing a journalist for libel is a violation of the country's treaty obligation to promote freedom of expression.
Adonis, former anchorman of Bombo radio-Davao jailed for libel, filed the communication addressed to the UN High Commission on Human Rights, challenging the legality of the criminal libel laws in the Philippines, arguing that criminal libel violates treaty obligations to promote freedom of expression.
"We're filing the case, not only in the name of Adonis but also in the name of all media people in the Philippines and in the name of press freedom in the whole world," said Lawyer Harry Roque, Adonis' legal counsel and the chair of the lawyer's advocacy group Center for International Law (CenterLaw), which assisted in the filing of the motion.
Aside from Adonis, the signatory of the complaint included the press freedom group Center for Media Freedom and Responsibility (CMFR) and the National Union of Journalist of the Philippines (NUJP).
Represented by his brother Colly Adonis, the Davao broadcaster filed the electronic motion to the UN at 11:35 a.m. Friday, only hours after he attended a pre-trial hearing of another libel suit filed against him by Davao TV personality Jeanette Lomanta Leuterio in relation to the same Burlesque King scandal that earned him his conviction.
Adonis has already spent over a year inside the Davao Penal Colony (Dapecol) prison after a Davao court convicted him of four and a half years for libel early last year.
The libel case was filed by Davao first district Congressman Prospero Nograles after Adonis ran a series of commentaries dubbed as the "Burlesque King," where according to Court proceedings, Adonis identified Nograles as the man running naked in a Manila hotel after he was caught by his paramour's husband inside a hotel room.
The UN case was the first to be filed in Asia, questioning the country's libel laws as inconsistent to its treaty obligations to uphold press freedom under the International Covenant on Civil and Political Rights.
Roque, however, clarified that the filing of the case in the UN was only taken as the last resort, after Congress failed to pass the law to decriminalized libel.
"Considering that the present Speaker of the House is the same man that filed the case that convicted Adonis, we need to explore other options and tap all available international remedies," Roque said.
He also filed before the Regional Trial Court (RTC) Branch 17 a motion to reopen the case filed by Nograles against Adonis to invoke a Supreme Court circular calling on all judges to impose fines rather than mete out jail terms to newsmen convicted for libel.
Earlier, Adonis showed up at the Regional Trial Court Branch 14 to face charges on a second libel complaint filed by the woman allegedly caught in bed with Nograles.
Handcuffed and wearing a blue inmates uniform, a gaunt Adonis sat side by side with suspects of cell phone snatching and killings, listening as the court deliberated on his case.
Roque had sought dismissal of Lomanta's complaint on the basis of the Supreme Court ruling discouraging the lower courts from imposing jail terms for libel.
He argued that Adonis's imprisonment "defeats" the country's Constitutionally-enshrined rights to freedom of expression and that there is no reason for the state to continue prosecuting Adonis because he has already been serving time in jail.
But state prosecutor Victoriano M. Bello Jr. inhibited himself from giving a decision, effectively moving the case to another pre-trial on May 26.
The revival of Lomanta's complaint came at the time when Adonis could have qualified to seek parole, having spent his six-month minimum term in jail. Lomanta's case cited the same circumstances that convicted Adonis. Its arraignment came six years after the case was filed. (Germelina Lacorte/Cheryll Fiel/davaotoday.com)

Prior restraint

The order of the Air Transportation Office (A.T.O.) to impose a no-fly zone over the Makati business district during the mammoth interfaith gathering on Friday Febraury 29 is patently unconstitutional.
It infringes on the constitutional right to press freedom, abridging newsmen's basic and fundamental right to legitimate news-gathering.
Because of the no-fly zone, no aerial photo shots of the gathering could be done, thus depriving the public of getting a bird's eye-view of the extent of the crowd that participated.
We are left with building-top photo, like the one taken by Voltaire Domingo.
It is clearly a form of prior restraint.
It is no different from that directive of the National Telecommunications Commission intruding on the news content, and editorial prerogatives of the press, particuarly broadcast media.
The NTC directive was done in the guise of regulation.
The ATO diective imposing a no-fly zone over Makati last Friday was also done in the guise of safety concerns.
Many typhoons have swept across Makati the past years.
The ATO was never heard imposing any no-fly zone.
This is the first time I have ever heard of Makati being declared a no-fly zone from 5 p.m. to 8 p.m., coincidentally the time during which the interfaith gathering took place.

Libel continues to haunt the new House Speaker

If you are a public official, you should be wary about using libel as a tool against journalists.
Libel was used by the new House Speaker Prospero Boy Nograles in pinning down the beleaguered, but courageous journalist named Alex Adonis of Davao.
(If you want to know more about the tragedy of Alex Adonis, just Google his name)
Adonis stands out as the only journalist of note who has been convicted, and jailed for libel.
A number have been convicted of libel, but when it reaches the Supreme Court, either the convictions are reversed, or the penalties reduced to fine.
Perhaps, the new House Speaker had once felt relieved after seeing Adonis in jail.
He was wrong.
You see, long ago when Nograles was not yet speaker he sued Alex Adonis for criminal libel.
Adonis corageously reported that incident involving a well known politician from Davao who was running around naked in a hotel after the husband of the woman the Davao politican brought to a hotel caught them in flagrante delicto.
By the way, somebody---most likely a basketball fanatic---translated in flagrante delicto as "flagrant foul" (not a bad translation).
According to The Pinoy Press website, Adonis reported on the “Burlesque King” issue in 2001, where, according to Court records, Adonis had alleged Nograles was the man caught running naked in a Manila hotel after the husband of the woman Nograles was allegedly having an affair with caught them inside a hotel room.
This became known nationally in many reports as the "burlesque king" incident.
Adonis was convicted, not because of lack of defense, but the absence of it.
Adonis lost by default, because he could not afford a lawyer to defend him.
It was like a boxing match where the other boxer lost by default because he could not afford to buy boxing gloves.
Now, the publicity about the new House Speaker Nograles, good or bad, almost never fails to make reference to that "burlesque king" event years back.
The incident, which is better left forgotten, almost always earns a line or two in news items about the new House Sepaker.
The sex episode until now fails to elude the lubricious embrace of news articles about Nograles.
This unsavory incident trails him like a lurking shadow beneath a sunshine.
It is a story as salacious as the incident itself.
I will not be surprised if in the quiet depths of Nograles' conscience, he could be regretting having had to file that haunting libel case.
This episode could very well have been buried a long time ago, if he had just let go of it.
Now, at the pedestal of power, Nograles seems to be suffering an eternal backlash.

Why not criminalize journalism?

The way the government is treating media in the Philppines makes me think there is a creeping effort to criminalze the practice of journalism.
The latest advisory coming from the Department of Justice illustrates that media should now heed advices and take orders from the government.
The consequence of disobeying government officials and personnel (including government utility workers?) is criminal liability.
I have a suggestion.
Why doesn't this government criminalize the practice of journalism altogether?
That would be a good idea, wouldn't it?
I think the revised penal code still has room for an article that would criminalize the practice of journalism.
Better yet, the justice department should draft an executive order or presidential proclamation to this effect.
If the practice of journalism is criminalized, the the government will not have to make advisories to media.
As a matter of fact, criminalizing journlaism would prevent pesky media-persons from prying into illegal activities of government officials.
If journalism is criminalized, then governmen officials can continue incurring unliquidated cash advances.
If journalism is criminalized, then government officials will be unhampered in brokering billions of dollars of transactions and loans, the payments of which are to be shouldered by Filipino taxpayers.
I think if the government has it way, the trend should be to criminalize journalism.
The justice secretary, Raul Gonzalez, perhaps one of the most brilliant justice secretaries this country even had, is going so slow in calibrating government actions towards the Philippine press.
Go ahead, Mr. Justice Secretary.
Why don't you criminalize journalism?
Naging mahiya-in ka pa.

Libelous headline?

The Philippine Daily Inquirer can be embroiled in what would appear to be a publication of a "libelous headline".
The banner headline for the Inquirer's October 18, 2007 issue stated:
"GMA present, says solon"
This headline referred to the time when cash was reportedly distributed to congressmen in a meeting in Malacanang.
The story however was that the solon, Manila Rep. Bienvenido Abante, stated that President Arroyo was not present, when the cash was being distributed.
The word "NOT" was dropped in the headline, thereby giving the entirely opposite story.
The proper headline would have been:
"GMA not present, says solon"
But if this were the title of the story, this wouldn't have grabbed the headline, would it?
Let me analyze this before I discuss cases about media mistakes.
I believe that if a libel charge is to be instituted against the Inquirer, the persons who have direct cause of action would be President Arroyo, and /or Rep. Bienvenido Abante.
But quick to the draw, the Inquirer, immediately issued a retraction, plus correction, plus apology, plus explanation.
More importantly, the Inquirer conveniently described the foul-up as "inadvertent"
And then the Inquirer conveniently goes on to blame the reporter and the news desk---the natural scapegoats.
(Is there or isn't there such a thing as command responsibility in the newsroom? What are the responsibilities of the top-gun editors of the paper?
Anyway, with the retraction, correction, and apology, and the "inadvertence" explanation, the Inquirer immediately laid the groundwork for a legal defense agasint libel.
The offended parties here are public officials.
Therefore, under the New York Times standard, it would have to be the actual malice standard that would have to be applied in this case.
Was the Inquirer guilty of reckless disregard of whether or not the headline was true or not?
Did the Inquirer knew the truth that President Arroyo indeed, was not present during the cash distribution, but still proceeded to headline: "GMA present, solon says"?
But the Inqurier has already pre-empted everything by claiming "inadvertence", meaning negligence.
Negligence as we know, does not rise to the standard of actual malice sufficient enough to ensure an absolution to the offender.
In this case, the offended public official would have to establish clear proof that the Inquirer knew beforehand that GMA was not present, yet the Inquirer still proceeded with the headine: "GMA present, says solon"
We have very insteresting, and even funny jurisprudence about media mistakes, and "headline libel".
I will discuss them tomorrow.

Re-think the libel decriminalization position

There are a practical reasons not to push for wholesale libel decriminlization.
Journalists pressing for indiscriminate decriminalization of libel do not reach first base, mainly because it naturally does not generate support from lawmakers.
Libel is a public official's bargaining chip.
That is why lawmakers are allergic to proposals to decrminalize libel.
And even assuming it passes both houses of congress, the body language of President Arroyo when it comes to libel decriminalization seems to be: "over my dead body."
She could likely veto it.
Journalists should instead re-package, and push to remove jail terms for defamation that involves the constitutionally valued political speech.
(I think there is a pending Senate bill on this already)
That would be less an irritant to the ears of our lawmakers.
Is there a difference? Of course there is.
A journalist's position, I submit, should be to remove the jail term for liel involving political speech, but to let it remain a criminal offense.
Is it not that by removing the jail term, it removes libel from the realm of criminal processes?
No. Aside from jail term, there is a penalty called the fine.
So if the jail term is removed, let the fine remain as a punishment, aside from of course the damages which the offended party may seek (which is civil in nature).
Is there any advantange to the journalist by advocating this?
There is. A lot, I think.
First, by letting libel remain a criminal offense (but with only the penalty of fine for libel convictions involving political speech), the proof required of the state to secure a conviction is "proof beyond reason able doubt."
If libel becomes civil, the plaintff needs only to prove what is called "preponderance of evidence", where the judge just weighs the evidence and see which evidence is "heavier".
But with "proof beyond reasonable doubt" as a requirement, the prosecution needs to establish more.
This goes to the benefit of the offender, the accused.
Another benefit if libel remains a criminal offense is that there is an added avenue to wage battle, and that is at the fiscal's level.
If libel were civil, it immediately goes before the judge.
So what's the advantage of having another level to battle one's case?
Remember, at the prosecutor's level, there may be no need of a lawyer.
So it becomes economical to the journalist.
What journalist organizations should do is organize a group of lawyers that will give legal advice to journalists entagled in the prosecutor's level.
From my experience, the discussions of libel in the prosecutor's level merely recurs.
What becomes different are the factual circumstances, but the prinicples are established.
So lawyers have a "de kahon" set-up which would come in handy in helping journalists draft and file their counter affidavits.
And if the journalist gets used to being sued for libel, I'm sure he would immerse into a certain comfort zone, such that drafting counter affdiavits would be a walk in the park, so to speak.
So at the prosecutor's level, there is no need to hire a lawyer, and the journalist has the chance of having the complaint against him dismissed, except of course if the complainant is the First Gentleman.
(Was there ever a libel complaint of the First Gentleman dismissed by a prosecutor, whose boss is the First Gentleman's wife?)
So from a procedural standpoint, there are advantages to let libel remain in the penal books.
Just minor changes needed.
So all these radical bandwagon movements for wholesale libel decrminalization were done without much thinking, I believe.

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.

FG forgives journalists, drops libel suit

First Gentleman MikeArroyo claims that because of his miracle-of-the-heart experience, he has forgiven the journslists who caused him anguish, and has decided to drop the libel suits he has filed.

Many say the real reason is that the First Gentlemans physical condition does not allow him to stand the rigors of court trials.

He could just drop dead.

Here is a dispatch I got from the National Union of Journalists in the Philippines (NUJP):

Court grants FG's motion to dismiss libel suit vs Newsbreak editors

A Manila court on Tuesday granted the motion of First Gentleman Jose Miguel Arroyo asking it to dismiss the libel case he filed against six members of the editorial staff of news magazine Newsbreak.

In his decision, Judge Jansen Rodriguez of the Manila Regional Trial Court Branch 6 said Mr. Arroyo's petition "cannot be ignored.

In the absence of his testimony, the prosecution for libel will fail."Mr. Arroyo earlier sued Marites Dañguilan Vitug, Glenda Gloria, Ricky Carandang, R.E. Otico, Jose Dalisay Jr. and Booma Cruz over a 2004 article about his alleged real estate holdings in the United States.

They had objected to the first gentleman's motion to dismiss, saying that forgiveness should is not the ground for the dismissal of the case.

The respondents had maintained they have not committed libel.

The respondents argued that the filing of the libel case (one of several filed by Mr. Arroyo) had "brought to the fore questions which have wide ranging effects on the freedom of the press ... and even the definition of libel as it applies to the Philippine setting. It has caused fear in the hearts of many journalists."

After Mr. Arroyo's recovery from a near-fatal heart attack in April, he decided to withdraw the libel cases he had filed against Newsbreak and all other publications or a total of 46 journalists.

Mr. Arroyo holds the record of suing the most number of journalists.

In a motion to dismiss the libel case against Newsbreak, he argued: "Because I have been generously given a second lease on life, I have decided to forgive everyone who has caused me pain. Because of this, I am no longer interested in pursuing the case."

Editors Publishers shouldn't be liable in libel suits

The problem about Philipine libel law is that the editor, and even the publisher are charged together with the reporter.
There are good reasons to say that the editor, and specially the publisher shouldn't be charged together with the person who wrote the purportedly libelous article.
I believe the New York Times v Sullivan ruling supports this theorem, which I intend to elaborate in my future blogs.
One should read closely the ratiocinations of the U.S. Supreme Court when it found that the New York Times Company were not driven by actual malice in publishing that full page ad containing false statements.
You would notice that determination of actual malice should be directed at the persons directly responsible for the false publications in the newspaper organization.
Let me quote that significant statement in the NYTC v Sullivan ruling : "the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement"
Also, Manila Bulletin Publisher Napoleon Rama, who until now, seemingly possesses that potion called the fountain of youth, wrote a position paper once that contended that publishers (like him) should not be made co-respondents in libel actions.

Why no actual malice in NYTC v Sullivan

Press practitioners and advocates know already that the significance of the New York Times Co v L.B. Sullivan decision in 1964 established the actual malice doctrine.
Perhaps, the most significant statement by the United States Supreme Court in that decision was:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

This has become widely known as the actual malice doctrine.

The issue in defamation is not so much about determining whether or not the published material was false, but whether the publisher exercised reckless disregard of whether the defamatory published matieral was false or not.

The issue in defamation is determning whether the publisher knew the material to be false, and yet proceeded to publish it.

So how do we know whether the publisher "knew the material to be false"?
So how do we know whether the publisher exercised "reckless disregard" of whether the defamatory mateiral was false or not?

To answer this, one really needs to look at the environmental facts, specially those facts which arose prior, or even contemporaneous to the publication.
Knowing a defamatory material to be false is a state of mind.
How do we know the publisher knew beforehand that the defamatory mateiral was false?

In the Sullivan decision, the U.S. Supreme Court took steps to look at the surrounding facts, before it concluded that the New York Times Company, or its editors, were not in reckless disregard of the truth, and thus did not have actual malice as to hold them liable for defamation.

Let us review the NYTC v Sullivan decision.

The Montgomery police commissioner sued NYTC for publishing falsities in a full paid page ad containing ten paragraphs.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang `My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission."
Sixth paragraph:
"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times -- for `speeding,' `loitering' and similar `offenses.' And now they have charged him with `perjury' -- a felony under which they could imprison him for ten years. . . ."

It was cleart that some of the published statements in the ad were false.

The U.S. Supreme Court of course ruled that there was no actual malice on the part of NYTC. And here is what the Supreme Court found out:

"Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of a personal character"; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice."

Note that in this paragraph, the U.S. Supreme Court clearly distinguished between negligence and recklessness.
Negligence is constitutionally protect. Recklessness is not.

(I am forced to draw the case of Eugenio Lopez Jr. v Court of Appeals (1970), a case of journalistic negligence [the case of unintentional photo swapping, remember?].
It did not follow the NYTC v Sullivan ruling, did it?
But that's another insightful discussion.)

Query on defamation

A newsman was convicted of libel in Tagbilaran City.
Rolly Cavan posted a query:
Dear Editor,
A publisher and reporter in Tagbilaran, Bohol was recently convicted in the regional trial court. The issue was about purchase of over-priced road equipment, Salcon Utility Joint Venture Agreement, and the expense of 160 million Ubay Dam, with no significant progress visible in the site.
Governor Aumentado, through his counsel, former governor Butalid won the case against the defendant, publisher and reporter, for libel.
Could, your interpretation of the, New York Times v. Sullivan, when creatively argued, and brilliantly explained, have prevented the conviction or perhaps help the newsmen on an appeal?

My response:
Actual malice in defamation is somewhat 'fluid'. It is not brittle.
One has to get to know the material facts of the case.
If you would notice, "reckless disregard" of the truth is kind of a state-of-mind thing. It's difficult to establish.
You have to ascertain and analyze the environmental facts.

FG's libel pursuits to take a break?

Judging the way the medical condition of the First Gentleman is being reported by the media, the courts handling FG's libel suits may have to grant a furlough, since the private complaint would not be able to attend, much less testify in the hearings.
Procedurally however, the judicial furlough would notcome unless there is a motion to that effect.
The prosecutor must file a motion to cancel or evensuspend the hearings, in the absence of the privatecomplainant who is medically indisposed.
Attached to the motion should be a duly notarizedmedical certificate issued by the attending phycisian.
Certainly, the court cannot rely on newspaper accounts on the health of a "private" indiviudual litigant,such news reports being hearsay.
But we really do not know if this would be the path to be taken by the prosecution.
It would not be unwise for the defense to object to any anticipated motion for postponement by theprosecution.
The accused has the constitutional right to a speedy trial.
The defense can ask that the trial proceed by callingother prosecution witnesses to the witness stand,while the testimony of the private complainant be placed in the "freezer" in the meantime.
We must note that the wheels of justice did not stall,even if one of the accused is suffering from cancer,and is undergoing medical treatment.
It would be preferable if the proceedings continue by calling other witnesses.
By the time all the other witnesses are through, it can be reasonably assumed that the private complainant would already be healthy enough to testify.
The First Gentleman's lawyer was heard before saying that his client will see to it that the libel suits be pursued till the end.
The defense can count on the good lawyer's assurances.
So, no postponements, companero?

Media coverage of a "private individual"

Mike Arroyo's lawyer, the good companero, must be scratching his head these days.
After the serious medical condition experienced by his client, he is having trouble justifying his legal argument that his client is a private individual.
Broadsheets and tabloids alike are bannering on a daily basis the medical status of his very "private"client.
Everyday that his "private individual" client is headlined smacks right at the face of his argument that Mike Arroyo is a private individual.
If the good companero or his client continues to insist that the first gentleman is a private individual, then he is the only private indiviudal in the whole world who is a public figure, judging by the way the media treats the story of his health condition. Imagine, there is even a continuous stream of medical bulletins for the media of this "private individual."
There is a clear definition of what constitutes apublic figure, both in American and Philippine jurisprudence (i.e. Ayer Productions, Curtis v Butts,etc) .
Mike Arroyo simply does not fit in the category of a private individual.
It's a case of a square peg placed on a round hole.

Inday Nita Daluz

Many of you may not be familiar with the name.
But if the name rings a bell, then you must be above 35 years of age.
Inday Nita Daluz is an icon of Philippine media, particuarly among the promdi's like me in the Visayas region.
She rose to national prominence at the height of the Marcos dictatorship.
Cebu's Inday Nita, fierce, fiery, was an iron lady freedom-fighter who stood against the repressive martial law regime.
She used the microphone as her weapon against the blazing guns of the Marcos military.
During martial law, Inday Nita Daluz braved the cold threats of the Marcos government, weathering military raids of the radio stations where Inday Nita tirelessly broadcast her tirades against Marcos.
Inday Nita never wavered even if she was jailed by Marcos because she dared to speak against the establishment.
Today, I met Inday Nita Daluz for the very first time in her home in Sun Valley, Cebu.
She has visibly aged, although without the white hair. Already calm and soft-spoken, and none of those fierce looks of a fighter, Inday Nita in her late sixties, sat on a wheelchair.
I didn't ask her why she no longer walks. She voluntered to show me her left leg, amputated just below the knee, owing to the merciless scourge of diabetes.
For me, it was a privilege to see Inday Nita, for I listened to her constantly on AM radio as a young boy, without fear castigating a dictator every day on the air.
Yesterday I never let the ocassion pass. I wanted to speak to her at length, to listen to her words of wisdom and her experiences as a broadcaster in Cebu during the dark days of martial law.
She obliged.
We talked for two hours. I asked her questions, and questions, one after the other about her life as a maverick media person in Cebu.
Yes, in her prime, her name was a by-word in Cebu, specially from among the downtrodden, whom many would refer as the "masa".
I told her that I will write about her exciting experiences because it is worth recording in black and white.
Sadly, I didn't bring my tape recorder and camera. So I will have to record our conversation based on my recollection.
I asked her what her life's greatest contribution was, she eloquently said she helped keep the flickering flame alive in the midst of darkness so many could see the pathway from bondage to freedom.
More of Inday Nita's travails in my succeeding blogs....

Bribing media during elections

Here in the Philippines, it is election season.
This is a financially promising time for some (or many?) journalists.
This is the sad reality of life.
As I pondered upon this election season, I recall a few years back when I was very active as a journalist back home.
It was election time also and as a news reporter, I covered a political gathering of local candidates.
After a while I was about to leave the affair, the top local candidate (I won't even mention what local elective position he was running for) went to me and handed to me a cheap, lousy, political T-shirt and something else ---yes, cash, of course (to add to the T-shirt).
Those shirts are good for one or two wears, after which the paint gradually rips itself off.
It wasn't really a tough situation for me because I was not acceding to the offer.
But what made the situation tough was on HOW to reject the offer.
You see, it also requires tact to reject a bribe.
You do not appear popish, visibly self-righteous, and embarass the "honorable" briber in front of other people.
The better way I think is to discreetly, but decently reject a discreetly indecent proposal.
By the way, I noticed that the other candidates were secretly keeping an eye on me, and trying to see whether I was a bribe receiver. (If they saw me receiving bribe, I think the other candidates would have folowed suit and bribed me also).
The candidate tried to insist the cash to my hand, to no avail.
In the end I was able to successfully ward off the cash, but I 'appeased' him by just getting the T-shirt.
The obvious reason why candidates, during election time, bribe media people is because they want favorable coverage in news reports.
That is bad on media's part because a bribed reporter will not be able to report the news objectively and dispassionately.
Later, let me blog about how media management deals with this bribery affair with their reporters.