We see the explosion of e-groups, blogs, message boards and other fora wherein people share facts, views and opinions. With respect to established institutions, particularly newspapers, the Online Journalism Review reports how the Washingtonpost.com made good use of the internet to expand the reach – and revenue – of its parent paper. Gauging from the number of advertisements in Inq7.net, the same may as well hold true in the Philippine setting.

The vast reach and infinite potential of the internet is beyond dispute. Indeed, the easy transfer of information over the internet – on real time basis and through territorial jurisdictions – has opened great possibilities, both in terms of opportunities and problems. If you consider the huge amount of content written about almost everyone in the internet, it will not be long before someone gets really pissed and files a case for libel. In fact, there are already pending cases.

There are many interesting issues with respect to e-libel or internet libel. For instance, in Dow Jones vs. Gutnick (an Australian case), one of the issues is the definition of “publication” in cyberspace: whether material is published when it is uploaded onto computer servers, or when it is downloaded by readers. The distinction is important because it helps determine which country or state’s libel laws should apply to the published material. (Also refer to E-Legal: Online Defamation – It’s a Small World After All or Australian Court Ruling Could Extend Reach of Libel Law)

In the Philippines, the “multiple publication rule” applies. It means that if a single defamatory statement is published several times, it gives rise to as many offenses as there are publications.

In the days to come, we will be exploring the significance of these issues in relation to Philippine laws. At this juncture, however, let’s discuss the basic concept of libel.

What is libel?

Libel is “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” (Art. 353, RPC) See also Brillante vs. Court of Appeals (G.R. Nos. 118757 & 121571), a 2004 case decided by the Supreme Court.

In Philippine jurisdiction, the truth is not always a defense. While something is true, if the purpose is to besmirch, then liability still exists. To be liable for libel, the following elements must be shown to exist: (1) the allegation of a discreditable act or condition concerning another; (2) publication of the charge; (3) identity of the person defamed; and (4) existence of malice.

As a rule, every defamatory imputation is presumed to be malicious, even if true, if no good intention and justifiable motive is shown (Art. 354, RPC). As an exception, the presumption of malice does not apply in privileged communication, which may be absolute or conditional.

Absolutely privileged communications is one wherein no liability, even if its author acted in bad faith. This class includes statements made by members of Congress in the discharge of their functions as such, official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses.

Conditionally or qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless made with malice or bad faith. Conditionally or qualifiedly privileged communications are those mentioned in Article 354 of the RPC:

1. A private communication made by a person to another in the performance of any legal, moral, or social duty. The following requisites, however, must exist: (a) the person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; (b) the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and (c) the statements in the communication are made in good faith and without malice.

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any act performed by public officers in the exercise of their functions.

The fact that a communication is privileged does not mean that it is not actionable; the privileged character of the communication simply does away with the presumption of malice, and the plaintiff has to prove the fact of malice in such case.

Philippine cases

When this article was first posted, I tried to trace a criminal complaint that was filed in Lapu-lapu City in connection with an alleged libelous matter in an e-mail. According to a newspaper report [SunStar Cebu – “Cabaero: e-Libel”], the complaint was dismissed by the investigating fiscal because “electronic evidence, like an e-mail, cannot be used for criminal action”. I wanted to check the entire resolution of the fiscal just to see how an email could NOT be used in a criminal case for libel. Unfortunately, when I got in touch with the reporter (Ms. Nini Cabaero, who graciously replied to my email), she told me that she can no longer retrieve the details of the case.

I thought it would be a while before another e-libel case comes along. Then I heard the President of Parents Enabling Parents Coalition (see the links at PCIJ) being interviewed by Compacheros Baja and Taberna. Multiple libel cases – which stemmed from the allegedly libelous comments on PEP’s blog – were already filed in court. (We cannot, of course, comment on the merits because of the pendency of the case. Nevertheless, I would presume that among the potential issues is whether a blog author is considered the “publisher” of “libelous” comments posted in his or her blog.) Only recently, we were able to successfully defend an internet libel case (read Part I, Part II, Part III, Part IV and Part V of that discussion).

* See also the article of Dave Llorito: “End of Pinoy blogger’s age of innocence?” Note the statement that “bloggers are still safe” and the ruling discussed in Part III. Bloggers are not really safe from libel and we shall discuss why in another article.