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Saturday, March 8, 2014
See - Why Luy dropped Baligod as counsel
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MANILA, Philippines – The cracks are starting to show. After principal pork barrel scam witness Benhur Luy relieved lawyer Levito Baligod as his counsel, there are indications more witnesses will do the same. (READ: Luy relieves Baligod as PDAF scam counsel)
Luy’s mother Getrudes and another unnamed whistleblower are also reportedly contemplating cutting the services of Baligod, who is also a private complainant in the pork barrel case that has implicated 3 senators and a number of lawmakers in the House of Representatives.For now, Baligod is still representing Merlina Suñas, another whistleblower.
Luy had been “seeking attention” and sending signals to Baligod a number of times that he felt ignored, but the lawyer apparently paid no attention.
A source privy to developments in the witnesses' camp said Luy and Baligod tried to patch things up, at least once, but it did not work. “They already had a one-on-one meeting to discuss each other’s issues but apparently they were not able to arrive at a compromise,” the source said.
Newly widowed when he took on Luy's case in early 2013, Baligod got engaged last January to a wealthy Leyte politician, Marilou Galenzoga. Baligod was frequently seen in Baybay, his fiancée's home city, almost every week since Super Typhoon Yolanda devastated the place last November. He has also become part of Galenzoga's legal team in her pending election cases.
Last straw: Justice Gregory Ong probe
Luy reportedly first observed that Baligod “had his mind on other things” whenever they would have hearings at the Makati Regional Court, which is trying the illegal detention case.
Luy repeats this explanation at a Senate Blue Ribbon committee hearing.
Baligod only attended at least twice in the many times Luy and other witnesses were summoned by the court. In one instance, Baligod reportedly left the court after being there for only 15 minutes.
A reporter covering the proceedings confirmed she saw Baligod only “once or twice” in court. Baligod would also miss several appearances in the Senate blue ribbon committee hearings on the pork barrel scam.
But what apparently broke the camel’s back was when Baligod failed to accompany Luy when he appeared before a Supreme Court investigation into the allegations raised against Sandiganbayan Senior Justice Gregory Ong. (READ: Exclusive: Napoles parties with anti-graft court justice)
The SC has tapped retired Justice Angelina Sandoval-Gutierrez to look into the allegations raised by Luy during one Senate hearing – that Ong was a regular fixture in parties where Napoles was also present. Ong is a member of the 4th Division that tried the P3.8 million Kevlar helmet case where Napoles was among the accused.
Napoles was acquitted of the charges but her brother Reynald and his wife Anna Marie Dulguime were convicted for conspiracy to falsify public documents. (READ: How Janet-Lim Napoles got away )
In that SC hearing, Luy was instead accompanied by two lawyers sent by Baligod. They also reportedly argued over the phone over an issue involving disclosures. The source would not reveal details of what led to the argument, citing lawyer-client confidentiality.
Rappler tried to call Baligod several times but he has not returned calls.
Luy also complained that he was being kept in the dark by Baligod about legal strategies in building up the pork barrel case.
One particular instance involved Technology Resource Center chief Dennis Cunanan (officially on leave), who was initially tagged by Luy as among those who benefitted from the pork barrel scam. Cunanan however denied that he pocketed rebates from Napoles.
Baligod has tapped Cunanan to help pin Senator Ramon “Bong" Revilla Jr in the pork barrel scam. Cunanan is now a “provisional state witness.”
A source from the whistleblower’s camp said Luy is concerned that his and Cunanan’s testimony will not jibe as far as his culpability in the scam is concerned. “We’re saying he accepted bribes. He is saying he did not. How do we reconcile this conflicting claim?” the source said.
Luy is also reportedly uncomfortable about Baligod being Cunanan’s counsel. In an earlier phone interview, Baligod confirmed that he is counsel for Cunanan, stressing that he had known Cunanan even before the pork barrel scandal broke out.
“In fact, only after I got confirmation from Cunanan that the pork barrel of the lawmakers was misused that I found the resolve to pursue the case,” Baligod said in that interview.
On Monday afternoon, March 3, Luy proceeded to the National Bureau of Investigation to formally inform authorities that he was severing ties with Baligod, his counsel in the pork barrel case and in the illegal detention case he filed against former employer and cousin Janet Lim Napoles.
On Tuesday, Justice Secretary Leila de Lima confirmed that Luy had severed his ties with Baligod, on the ground that Baligod lacked the time to attend to Luy's legal needs.
“It has been a rough and rugged road for us, and for all you have done, I am eternally thankful. However, I have noticed that you are very busy with your other advocacies and that is why I have decided to pursue this journey even without [you] guiding me,” a portion of Luy’s letter to Baligod said.
The witnesses who want to drop Baligod are also citing "lack of time" on his part to attend to their legal needs.
In several instances, Luy complained that Baligod “lacked time for us,” and these would reach Baligod.
When Super Typhoon Haiyan struck, Baligod could not be reached by the whistleblowers, who found out later that the lawyer went to Baybay, Leyte, to help out in his fiancée's relief operations. – Rappler.com
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see - Can't understand the jargon in the Cybercrime Law?
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BY REYNALDO SANTOS JR
POSTED ON 03/01/2014 6:02 PM | UPDATED 03/02/2014 8:48 AM
POSTED ON 03/01/2014 6:02 PM | UPDATED 03/02/2014 8:48 AM
MANILA, Philippines – The Supreme Court ruled on February 18 to uphold the constitutionality of most provisions of Republic Act 10175 or the Cybercrime Prevention Act of 2012.
The SC ruled that the controversial provision on online libel is constitutional, but is subject to one condition: only the original author, not those who simply receive or react to the post, can be penalized.
To help readers understand the Cybercrime Law and the Supreme Court ruling on its constitutionality, Rappler will publish a series of "explainers" to help non-lawyers understand key points.
We start with this Q&A on the petitions filed, and the terminologies in the Supreme Court decision.
What is the aim of the cybercrime law?
The cybercrime law "aims to regulate access to and use of the cyberspace" and imposes penalties for violations enumerated under it.
In recognizing the wisdom of the law, the Supreme Court said: “The ill-motivated can use the cyberspace for committing theft by hacking..for illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet.
How many petitions sought to invalidate the law?
Since President Benigno Aquino III signed the law, at least 15 petitions were sent to the Supreme Court to question the validity of the law.
How many provisions were questioned for their constitutionality?
A total of 21.
What issues were raised by the petitioners?
What provisions were struck down by the SC?
The Court declared unconstitutional the provisions that (1) penalize posting of spam messages, (2) authorize the collection and recording of traffic data in real-time, and (3) authorize the Department of Justice to restrict or block access to suspected computer data.
LEGALESE under the law
Petitioners claim that the provision on Illegal Access (under Cybercrime Offenses) fails to meet the strict scrutiny standardrequired of human rights laws. What does the phrase mean?
The SC says the strict scrutiny standard is "an American constitutional construct, useful in determining the constitutionality of laws that tend to target a class of things or persons."
It is also used to "assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights."
The law also identifies cyber-squatting as a cybercrime offense. What does the term mean?
Cyber-squatting is defined as the "acquisition of a domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from registering the same." Petitioners claim that this provision violates the equal protection clause, but is deemed baseless by the Court.
Petitioners claim that cyber-squatting violates the equal protection clause. What is this clause all about?
This clause refers to Article 3, Section 1 of the 1987 Constitution, which states: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws."
Petitioners contend that the laws on libel should be considered unconstitutional, otherwise jurisprudence requiring actual malice could easily be overturned. What is "actual malice"?
The SC explained that there is "actual malice" when "an offender makes a defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not." Evidence must be sufficient to prove that the accused entertained serious doubts as to the truth of the statement he or she published. The Court also said that gross or extreme negligence is not sufficient to establish actual malice.
The Court voided the provision that penalizes aiding or abetting in committing the cybercrime law. How does SC define this term?
The SC explained that in current laws, "aiding or abetting" is an action that is essentially physical, and is susceptible to easy assessment as criminal in character. In cybercrime law, except for the original author of the assailed statement, likes and shares are just sentiments of readers and are not forms of "aiding or abetting." The SC added that the term constitutes a broad sweep that generates a chilling effect on those who express themselves online.
What does this one degree higher actually mean?
Under the Revised Penal Code, libel carries a penalty of prision correccional in its minimum (6 months and 1 day) and medium periods (2 years, 4 months and 1 day to 4 years and 2 months). Under the cybercrime law, the penalty for online libel “carries a 2-fold increase in the maximum penalty – from 4 years and 2 months to 8 years,” Chief Justice Maria Lourdes Sereno pointed out in her concurring and dissenting separate opinion.
Petitioners also attacked the provision on collecting traffic data. What does the term mean?
"Traffic data" refer only to the communication's origin, destination, route, time, data, size, duration, or type of underlying service. They exclude content or identities.
The SC declared unconstitutional the section that penalizes posting of unsolicited commercial communications. What does the term mean?
These are simply "spam messages" like unexpected ads by mail. They seek to advertise, sell, or offer for sale products and services.
In discussing the issue of privacy, the SC mentioned decisional privacy and informational privacy. What's the difference between the two?
Decisional privacy refers to "the right to independence in making certain important decisions," while informational privacy refers to the interest in "avoiding disclosure of personal matters."
The SC further explained that informational privacy, which petitioners want to protect, has 2 aspects: (1) the right not to have private information disclosed, and (2) the right to live freely without surveillance and intrusion.
The Court said it uses a two-fold test – a subjective and objective test – in determining entitlement to the right to privacy. What is the difference between these two tests?
In a subjective test, the person claiming the right to privacy "must have an actual or legitimate expectation of privacy over a certain matter."
In an objective test, the person's expectation of privacy "must be one that society is prepared to accept as objectively reasonable."
The SC used the concept of zones of privacy in discussing the right to privacy. What does this term mean?
The Court described zones of privacy as a field where "any form of intrusion is impermissible unless excused by law and in accordance with customary legal process."
The zones of privacy are created by two constitutional guarantees: (1) the right against unreasonable searches and seizures, and (2) the right to privacy of communication and correspondence. – Rappler.com
Do you have any questions regarding the provisions in the Cybercrime Law? Do you wish to clarify parts of the Supreme Court's ruling on the law? Tweet your questions using the hashtag #cyberlaw to @rapplerdotcom, or email them to firstname.lastname@example.org.
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Thursday, February 27, 2014
Thursday, February 20, 2014
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. - G.R. No. 161032
See - G.R. No. 161032
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Having discussed the issue of qualified privileged communication and the matter of the identity of the person referred to in the subject articles, there remains the petition of the editors and president ofRemate, the paper on which the subject articles appeared.
In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing or writing of the subject articles, and are thus not liable.
The argument must fail.
The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:
Art. 360. Persons responsible.—Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.
The claim that they had no participation does not shield them from liability. The provision in the RPC does not provide absence of participation as a defense, but rather plainly and specifically states the responsibility of those involved in publishing newspapers and other periodicals. It is not a matter of whether or not they conspired in preparing and publishing the subject articles, because the law simply so states that they are liable as they were the author.
Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their paper by simply saying they had no participation in the preparation of the same. They cannot say that Tulfo was all alone in the publication of Remate, on which the subject articles appeared, when they themselves clearly hold positions of authority in the newspaper, or in the case of Pichay, as the president in the publishing company.
As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a journalist, the other petitioners cannot simply say that they are not liable because they did not fulfill their responsibilities as editors and publishers. An editor or manager of a newspaper, who has active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a libelous article. On the theory that it is the duty of the editor or manager to know and control the contents of the paper, it is held that said person cannot evade responsibility by abandoning the duties to employees, so that it is immaterial whether or not the editor or manager knew the contents of the publication. In Fermin v. People of the Philippines, the Court held that the publisher could not escape liability by claiming lack of participation in the preparation and publication of a libelous article. The Court cited U.S. v. Ocampo, stating the rationale for holding the persons enumerated in Art. 360 of the RPC criminally liable, and it is worth reiterating:
According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any connection with its publication are liable as publishers.
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In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783):
“The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication.
“The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his paper; and it should be no defense that the publication was made without his knowledge or consent, x x x.
“One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or employees whom he selects and controls may be said to cause to be published what actually appears, and should be held responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the publisher; x x x.
“We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager.”
In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it was pointed out to him and that an apology and retraction were afterwards published in the same paper, gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said:
“It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use reasonable caution in the conduct of his business that no libels be published.” (Wharton’s Criminal Law, secs. 1627, 1649; 1 Bishop’s Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)
The above doctrine is also the doctrine established by the English courts. In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon said that he was “clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of his servants or agents for misconduct in the management of the paper.”
This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.
Lofft, an English author, in his work on Libel and Slander, said:
“An information for libel will lie against the publisher of a papers, although he did not know of its being put into the paper and stopped the sale as soon as he discovered it.”
In the case of People vs. Clay (86
Ill., 147) the court held that –
“A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and criminally, and his liability is shared by the agent and all others who aid in publishing it.”
Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so too must Cambri, Salao, Barlizo, and Pichay.
Though we find petitioners guilty of the crime charged, the punishment must still be tempered with justice. Petitioners are to be punished for libel for the first time. They did not apply for probation to avoid service of sentence possibly in the belief that they have not committed any crime. In Buatis, Jr. v. People, the Court, in a criminal case for libel, removed the penalty of imprisonment and instead imposed a fine as penalty. In Sazon v. Court of Appeals, the accused was merely fined in lieu of the original penalty of imprisonment and fine. Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of a free press balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary imprisonment in case of insolvency, should suffice. Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into consideration.
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See - G.R. No. 161032
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more deeply into the case, the exercise of press freedom must be done “consistent with good faith and reasonable care.” This was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the public. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor does this margin cover total abandonment of responsibility. Reading
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Freedom of the Press v. Responsibility of the Press
The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on public figures and matters of public interest. Even in cases wherein the freedom of the press was given greater weight over the rights of individuals, the Court, however, has stressed that such freedom is not absolute and unbounded. The exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others.
The Journalist’s Code of Ethics adopted by the National Union of Journalists of the
shows that the press recognizes that it has standards to follow in the exercise of press freedom; that this freedom carries duties and responsibilities. Art. I of said code states that journalists “recognize the duty to air the other side and the duty to correct substantive errors promptly.” Art. VIII states that journalists “shall presume persons accused of crime of being innocent until proven otherwise.” Philippines
In the present case, it cannot be said that Tulfo followed the Journalist’s Code of Ethics and exercised his journalistic freedom responsibly.
In his series of articles, he targeted one Atty. “Ding” So of the Bureau of Customs as being involved in criminal activities, and was using his public position for personal gain. He went even further than that, and called Atty. So an embarrassment to his religion, saying “ikaw na yata ang pinakagago at magnanakaw sa miyembro nito.” He accused Atty. So of stealing from the government with his alleged corrupt activities. And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, “Nagalit itong tarantadong si Atty. Sodahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].”
In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the publication of the subject articles. He also admitted that he did not conduct a more in-depth research of his allegations before he published them, and relied only on his source at the Bureau of Customs.
In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for personal gain, and even stated that he had been the victim of such a practice. He argued then that it may have been someone else using the name of Atty. So for corrupt practices at the
, and this person was the target of his articles. This argument weakens his case further, for even with the knowledge that he may be in error, even knowing of the possibility that someone else may have used Atty. So’s name, as Tulfo surmised, he made no effort to verify the information given by his source or even to ascertain the identity of the person he was accusing. South Harbor
The trial court found Tulfo’s accusations against Atty. So to be false, but Tulfo argues that the falsity of contents of articles does not affect their privileged character. It may be that the falsity of the articles does not prove malice. Neither did Borjal give journalists carte blanche with regard to their publications. It cannot be said that a false article accusing a public figure would always be covered by the mantle of qualified privileged communication. The portion of Borjal cited by Tulfo must be scrutinized further:
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held –
A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of “actual malice” on the part of the person making the libelous statement. (Emphasis supplied.)
Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of the RPC, but this expansion does not cover Tulfo. The addition to the instances of qualified privileged communications is reproduced as follows:
To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. (Emphasis supplied.)
The expansion speaks of “fair commentaries on matters of public interest.” While Borjal places fair commentaries within the scope of qualified privileged communication, the mere fact that the subject of the article is a public figure or a matter of public interest does not automatically exclude the author from liability. Borjal allows that for a discreditable imputation to a public official to be actionable, it must be a false allegation of fact or a comment based on a false supposition. As previously mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not exert effort to verify the information before publishing his articles.
Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs and relied only on this source for his columns, but did no further research on his story. The records of the case are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to be. Tulfo’s articles related no specific details or acts committed to prove Atty. So was indeed a corrupt public official. These columns were unsubstantiated attacks on Atty. So, and cannot be countenanced as being privileged simply because the target was a public official. Although wider latitude is given to defamatory utterances against public officials in connection with or relevant to their performance of official duties, or against public officials in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech. Journalists still bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. As held in In Re: Emil P. Jurado:
Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a newsman may ecape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists’ Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those sources.
The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing his one unnamed source. It is not demanded of him that he name his source. The confidentiality of sources and their importance to journalists are accepted and respected. What cannot be accepted are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch the name of possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before publication, and be able to back up their stories with proof. The rumors and gossips spread by unnamed sources are not truth. Journalists are not storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must be some foundation to their reports; these reports must be warranted by facts.
Jurado also established that the journalist should exercise some degree of care even when writing about public officials. The case stated:
Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm does notrequire that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit thereckless disregard of private reputation by publishing or circulating defamatory statements without anybona fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the
Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified privileged communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice “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 any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.” This particular provision has several elements which must be present in order for the report to be exempt from the presumption of malice. The provision can be dissected as follows:
In order that the publication of a report of an official proceeding may be considered privileged, the following conditions must exist:
(a) That it is a fair and true report of a judicial, legislative, or other official proceedingswhich are not of confidential nature, or of a statement, report or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions;
(b) That it is made in good faith; and
(c) That it is without any comments or remarks.
The articles clearly are not the fair and true reports contemplated by the provision. They provide no details of the acts committed by the subject, Atty. So. They are plain and simple baseless accusations, backed up by the word of one unnamed source. Good faith is lacking, as Tulfo failed to substantiate or even attempt to verify his story before publication. Tulfo goes even further to attack the character of the subject, Atty. So, even calling him a disgrace to his religion and the legal profession. As none of the elements of the second paragraph of Art. 354 of the RPC is present in Tulfo’s articles, it cannot thus be argued that they are qualified privileged communications under the RPC.
Breaking down the provision further, looking at the terms “fair” and “true,” Tulfo’s articles do not meet the standard. “Fair” is defined as “having the qualities of impartiality and honesty.” “True” is defined as “conformable to fact; correct; exact; actual; genuine; honest.” Tulfo failed to satisfy these requirements, as he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not “fair and true reports,” but merely wild accusations.
Even assuming arguendo that the subject articles are covered by the shield of qualified privileged communication, this would still not protect Tulfo.
In claiming that his articles were covered by qualified privileged communication, Tulfo argues that the presumption of malice in law under Art. 354 of the RPC is no longer present, placing upon the prosecution the burden of proving malice in fact. He then argues that for him to be liable, there should have been evidence that he was motivated by ill will or spite in writing the subject articles.
The test to be followed is that laid down in New York Times Co. v. Sullivan, and reiterated in Flor v. People, which should be to determine whether the defamatory 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.
The trial court found that Tulfo had in fact written and published the subject articles with reckless disregard of whether the same were false or not, as proven by the prosecution. There was the finding that Tulfo failed to verify the information on which he based his writings, and that the defense presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot argue that because he did not know the subject, Atty. So, personally, there was no malice attendant in his articles. The test laid down is the “reckless disregard” test, and Tulfo has failed to meet that test.
The fact that Tulfo published another article lambasting respondent Atty. So can be considered as further evidence of malice, as held in U.S. vs. Montalvo, wherein publication after the commencement of an action was taken as further evidence of a malicious design to injure the victim. Tulfo did not relent nor did he pause to consider his actions, but went on to continue defaming respondent Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the cost, and is proof of malice.
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