Thursday, February 27, 2014

Proper Deposition Objections

see - Proper Deposition Objections

"x x x.

Improper deposition objections
  • Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is too far afield, though, a relevance objection may be warranted. The line is hard to draw here. It boils down to a judgment call on whether the question is likely to lead to admissible evidence.
  • Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if your client is asked “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. If you are taking the deposition, you can determine based on the answer whether you should take Jane’s deposition, and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial. Remember, the reason you can’t ask someone else what Jane said at trial is that you need to be able to cross examine Jane to determine her credibility. (There are, of course, exceptions that I won’t discuss here.)
  • Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence. For example, it is permissible to ask “If you had known X, how would you have behaved differently?” However, be careful here, as this could be a proper objection depending on the question. Do not let your client speculate and object if the question calls for speculation. You may want to let your client answer if she knows how she would have behaved if she had known X.
  • Calls for an opinion. Foundation does not need to be established to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion.Q: “Do you think that the brakes were in working order on the Toyota?”
    A: “No.”
    Q: “Why not?”
    A: “When I drove it 2 weeks before the accident they were acting funny.”

    The lawyer taking the deposition can obtain information that may not otherwise have been received in written discovery and the answers can lead to discoverable evidence.
  • Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. The lawyer cannot say that she does not understand the question. It is up to the deponent to ask for clarification. “If you know” and “if you remember”are coaching objections. However, you may ask, “Who is she?” when the deponent uses the word “she” unclearly in a question. That is not speaking or coaching, because it does not suggest the answer. Objections must be stated succinctly in a non-argumentative and non-suggestive manner.
Do not let yourself get bullied by an opposing counsel who is making improper objections. If several improper objections are made, there are a few ways to respond. You can ask, for example, why the objections are being made, as they are not required for the record. Be prepared for that to lead to an argument.
If that discussion gets you nowhere, you may wish to tell the other lawyer that you will assume that there is a standing relevancy (for example) objection to every question, so the objection no longer needs to be made. If neither of those things works, just try to tune out the objections and proceed with the deposition.
Inform the deponent that unless her lawyer instructs her not to answer, that she should answer the question. (There are rare instances in which a lawyer can properly instruct a deponent to refuse to answer.)
Proper deposition objections
  • Privilege. This is the big one. It must be made or it is waived. This covers anyprivilege, such as attorney-client and physician-client. Object if your client is asked what he said to his lawyer. Of course, the deposing lawyer can properly ask “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is also the one case in which you should instruct your client not to answer. If the opposing lawyer continues to attempt to invade the privilege, you can threaten to terminate the deposition. If the privilege questions continue, terminate the deposition.
  • Form of the question. This objection is usually asserted to make a clear record. Form questions fall in several categories. Some jurisdictions only require that the lawyer state a general “form” objection. Others require that the type of form objection be stated as well. Form questions are waived if they are not made during the deposition.
    • Compound. If the question is compound and the person answers yes, what portion of the question are they agreeing with? For example, if your client is asked “When you turned left were you in the turn lane and was your signal on and was the light green and how do you know”— object! Ask the lawyer to ask one question at a time.
    • Confusing. I know I stated above that it is improper to ask for clarification, but it depends. If the question is truly confusing, an objection may be proper.
    • Calls for speculation. A form objection should also be made to a question that calls for the witness to speculate. Be careful, though. Don’t suggest an answer, which would not be proper.
  • Mischaracterizes earlier testimony. This is also to make sure there is a clear record. For example, if the deponent earlier stated he was not sure of his speed, and was then asked: “So you testified earlier that you were speeding …” it is proper to object as mischaracterizing earlier testimony. The deponent said she did not know how fast she was going; she did not admit she was speeding.
  • Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than he gave earlier in the deposition. If you don’t make the objection and your client does provide differing information, your client loses credibility. And the testimony can be used for impeachment at trial. The opposing lawyer may not realize that he asked the question earlier, and making the objection can throw him off and make him doubt himself.
  • Calls for a legal conclusion. Deponents are there to testify about facts, not legal conclusions. If the deponent is a lawyer, it may be a proper question, depending on the circumstances. Otherwise, it’s not.
  • Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, describe the specific conduct that is objectionable for the record, and further state on the record that you will terminate the deposition if the behavior continues. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed or bullied. As with privilege, if the lawyer does not stop the harassment, terminate the deposition.
  • x x x."

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

"x x x.

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.[40]  On the theory that it is the duty of the editor or manager to know and control the contents of the paper,[41] it is held that said person cannot evade responsibility by abandoning the duties to employees,[42] so that it is immaterial whether or not the editor or manager knew the contents of the publication.[43]  In Fermin v. People of the Philippines,[44]  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.

x x x x

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.”[45]

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,[46] 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,[47] 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.[48]  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.
x x x."

Libel - G.R. No. 161032

See - G.R. No. 161032

"x x x.

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 Philippinesshows 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.”

          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.[26]  He accused Atty. So of stealing from the government with his alleged corrupt activities.[27]  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].”[28]

          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 SouthHarbor, 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.

          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.[29] (Emphasis supplied.)

          Reading 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.

          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.[30] (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.[31]  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.[32]

          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 thePhilippines.[33]  

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.[34]  

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.”[35] “True” is defined as “conformable to fact; correct; exact; actual; genuine; honest.”[36]  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,[37] 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.[38] 

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,[39] 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. 
x x x."

The expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slender but rather to express anger or displeasure. - Pader vs People : 139157 : February 8, 2000 : J. Pardo : First Division

See - Pader vs People : 139157 : February 8, 2000 : J. Pardo : First Division

"x x x.

The issue is whether petitioner is guilty of slight or serious oral defamation.  In resolving the issue, we are guided by a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time.[12]
Unquestionably, the words uttered were defamatory.  Considering, however, the factual backdrop of the case, the oral defamation was only slight.  The trial court, in arriving at its decision, considered that the defamation was deliberately done to destroy Atty. Escolango’s reputation since the parties were political opponents.
We do not agree.  Somehow, the trial court failed to appreciate the fact that the parties were also neighbors; that petitioner was drunk at the time he uttered the defamatory words; and the fact that petitioner’s anger was instigated by what Atty. Escolango did when petitioner’s father died.[13] In which case, the oral defamation was not of serious or insulting nature.
In Reyes vs. People,[14] we ruled that the expression “putang ina mo” is a common enough utterance in the dialect that is often employed, not really to slender but rather to express anger or displeasure.  In fact, more often, it is just an expletive that punctuates one’s expression of profanity.  We do not find it seriously insulting that after a previous incident involving his father, a drunk Rogelio Pader on seeing Atty. Escolango would utter words expressing anger.  Obviously, the intention was to show his feelings of resentment and not necessarily to insult the latter.  Being a candidate running for vice mayor, occasional gestures and words of disapproval or dislike of his person are not uncommon.
In similar fashion, the trial court erred in awarding moral damages without proof of suffering.[15]Accordingly, petitioner may be convicted only of slight oral defamation defined and penalized under Article 358, Revised Penal Code, prescribing the penalty of arresto mayor or a fine not exceeding 200 pesos.
x x x."

Slander by deed - G.R. No. 160351

See - G.R. No. 160351

"x x x.

The next issue that faces this Court is whether or not petitioner’s act of poking a dirty finger at complainant constitutes grave slander by deed.

Following the same principle as enunciated in our foregoing discussion of the first issue, we find petitioner guilty only of slight slander by deed in Criminal Case No. 140-94 inasmuch as we find complainant’s unjust refusal to sign petitioner’s application for monetization and her act of throwing a coke bottle at him constituted a perceived provocation that triggered the “poking of finger” incident.

Article 359 of the Revised Penal Code provides:

Art. 359. Slander by deed. – The penalty of arresto mayor in its maximum period to prision correccional in its minimum period or a fine ranging from 200 to 1,000 pesos shall be imposed upon any person who shall perform any act not included and punished in this title, which shall cast dishonor, discredit, or contempt upon another person. If said act is not of a serious nature, the penalty shall bearresto menor or a fine not exceeding 200 pesos.

Slander by deed is a crime against honor, which is committed by performing any act, which casts dishonor, discredit, or contempt upon another person.  The elements are (1) that the offender performs any act not included in any other crime against honor, (2) that such act is performed in the presence of other person or persons, and (3) that such act casts dishonor, discredit or contempt upon the offended party.  Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc.[32]  It is libel committed by actions rather than words.  The most common examples are slapping someone or spitting on his/her face in front of the public market, in full view of a crowd, thus casting dishonor, discredit, and contempt upon the person of another.

In Mari v. Court of Appeals,[33] complainant and petitioner were co-employees in the Department of Agriculture, with office at Digos, Davao del Sur, although complainant occupied a higher position.  On 6 December 1991, petitioner borrowed from complainant the records of his 201 file. However, when he returned the same three days later, complainant noticed that several papers were missing which included official communications from the Civil Service Commission and Regional Office, Department of Agriculture, and a copy of the complaint by the Rural Bank of Digos against petitioner.  Upon instruction of her superior officer, complainant sent a memorandum to petitioner asking him to explain why his 201 file was returned with missing documents.  Instead of acknowledging receipt of the memorandum, petitioner confronted complainant and angrily shouted at her: "Putang ina, bullshit, bugo."  He banged a chair in front of complainant and choked her.  With the intervention of the security guard, petitioner was prevailed upon to desist from further injuring complainant.  We held:

Prescinding from the foregoing, it would serve the ends of justice better if the petitioner were sentenced to pay a fine instead of imprisonment.  The offense while considered serious slander by deed was done in the heat of anger and was in reaction to a perceived provocation.  The penalty for serious slander by deed may be either imprisonment or a fine.  We opt to impose a fine.

ACCORDINGLY, the Court hereby SETS ASIDE the decision of the Court of Appeals and in lieu thereof renders judgment finding petitioner guilty beyond reasonable doubt of serious slander by deed defined and penalized under Article 359 of the Revised Penal Code, and sentencing him to pay a fine of P1,000.00, with subsidiary imprisonment in case of insolvency.[34]  (Emphasis supplied.)

In Mari, the Court found petitioner guilty of serious slander by deed defined and penalized under Article 359 of the Revised Penal Code, and sentenced him to pay a fine of P1,000.00, with subsidiary imprisonment in case of insolvency.  The deed involved was the banging of a chair in front of complainant and choking her.

In another case, Teodoro v. Court of Appeals,[35] the incident, which gave rise to this case, is narrated as follows:

Petitioner Amado B. Teodoro was vice-president and corporate secretary of the DBT-Marbay Construction, Inc., while complainant, Carolina Tanco-Young, was treasurer of the same corporation. Petitioner is the brother of the president of the corporation, Donato Teodoro, while complainant is the daughter of the chairman of the board of the corporation, Agustin Tanco. x x x

Records show that the incident complained of took place at the Board Room of the D.B.T. Mar Bay Construction Incorporated in the afternoon of August 17, 1984.  Present at the meeting were Agustin Tanco, Chairman of the Board; the President, Donato Teodoro; the accused, Amado Teodoro, as Corporate Secretary; the complainant, Carolina Tanco-Young who is the Treasurer; and one OscarBenares.

x x x

It appears that there was a controversial document being insisted upon by the accused, as secretary, to be signed by the chairman.  The Board Treasurer, Carolina Tanco-Young questioned the propriety of having the document signed as there was, according to her, no such meeting that ever took place as to show a supposed resolution to have been deliberated upon.  A verbal exchange of words and tirades took place between the accused Secretary and the Treasurer.  One word led to another up to the point where Carolina Tanco-Young, the treasurer, either by implication or expressed domineering words, alluded to the accused as a "falsifier" which blinded the accused-appellant to extreme anger and rage, thus leading him to slap Tanco-Young — the alleged name caller.[36]  (Emphasis supplied.)

This Court in Teodoro held that there was grave slander by deed.

In another case, the acts of pushing and slapping a woman in order to ridicule and shame her before other people constitute the felony of slander by deed defined and penalized under Article 359 of the Revised Penal Code by arresto mayor in its maximum period to prision correccional in its minimum period.[37]

In the cases as above-cited, there was no provocation on the part of the complainants unlike the present case.  Moreover, the “poking of the finger” in the case at bar was, palpably, of less serious magnitude compared to the banging of chair, the choking in Mari and the slapping of a face inTeodoro.  Thus, we find that the poking of dirty finger in the case at bar, while it smacks of slander by deed, is of a lesser magnitude than the acts committed in the foregoing cases.

Moreover, pointing a dirty finger ordinarily connotes the phrase “Fuck You,” which is similar to the expression “Puta” or “Putang Ina mo,” in local parlance.  Such expression was not held to be libelous in Reyes v. People,[38]  where the Court said that:  “This is a common enough expression in the dialect that is often employed, not really to slander but rather to express anger or displeasure.  It is seldom, if ever, taken in its literal sense by the hearer, that is, as a reflection on the virtues of a mother.”  Following Reyes, and in light of the fact that there was a perceived provocation coming from complainant, petitioner’s act of pointing a dirty finger at complainant constitutes simple slander by deed, it appearing from the factual milieu of the case that the act complained of was employed by petitioner "to express anger or displeasure" at complainant for procrastinating the approval of his leave monetization. While it may have cast dishonor, discredit or contempt upon complainant, said act is not of a serious nature, thus, the penalty shall be arresto menor meaning, imprisonment from one day to 30 days or a fine not exceeding P200.00. We opt to impose a fine following Mari.[39]

Yes, complainant was then a Vice-Mayor and a lady at that, which circumstances ordinarily demanded respect from petitioner.  But, it was, likewise, her moral obligation springing from such position to act in a manner that is worthy of respect. In the case at bar, complainant’s demeanor of refusing to sign the leave monetization of petitioner, an otherwise valid claim, because of a political discord smacks of a conduct unbecoming of a lady and a Vice-Mayor at that.  Moreover, it appears that she had, indeed, thrown a bottle of coke at petitioner, which actuation reveals that she, too, had gone down to petitioner’s level.

Holding an esteemed position is never a license to act capriciously with impunity.  The fact that there was a squabble between petitioner and complainant, both high-ranking local public officials, that a verbal brawl ostensibly took place, speaks very poorly of their self-control and public relations.  For this, they both deserve to be censured and directed to conduct themselves in a more composed manner and keep their pose as befits ranking officials who officially deal with the public.[40]

To be worthy of respect, one must act respectably, remembering always that courtesy begets courtesy.

Anent the award of damages, the Court of Appeals erred in increasing the award of moral damages to P100,000.00 in light of its own finding that petitioner himself was “a victim of complainant’s indiscretion for her refusal, for no reason at all, to approve petitioner’s application for monetization of his accrued leave credits.”  

In similar fashion, considering that petitioner and complainant belong to warring political camps, occasional gestures and words of disapproval or dislike are among the hazards of the job.[41] Considering this political reality and the fact that the Court of Appeals concluded, based on evidence on records, that petitioner himself was a victim of complainant’s indiscretion, her claim for damages and attorney’s fees must, likewise, fail.  Akin to the principle that “he who comes to court must have clean hands,” each of the parties, in the case at bar, must bear his own loss.
 x x x."