ERWIN TULFO
Vs. PEOPLE OF THE PHILIPPINES and ATTY. CARLOS T.
SO, G.R. No. 161032; and the
accompanying case: SUSAN CAMBRI, REY SALAO, JOCELYN
BARLIZO, and PHILIP PICHAY vs. COURT OF APPEALS, PEOPLE OF
THE PHILIPPINES, and CARLOS SO, G.R. No. 161176, September 16, 2008
X x x.
In his appeal, Tulfo claims that the CA erred in not
applying the ruling in Borjal v. Court of Appeals, G.R. No. 126466, January 14, 1999, 301
SCRA 1. In essence, he argues that the subject articles fall under
qualifiedly privileged communication under Borjal and that the
presumption of malice in Art. 354 of the RPC does not apply. He argues
that it is the burden of the prosecution to prove malice in fact.
X x x.
There is no question of the status of Atty. So as a public official,
who served as the OIC of the Bureau of Customs Intelligence and Investigation
Service at the Ninoy Aquino International Airport (NAIA) at the time of the
printing of the allegedly libelous articles. Likewise, it cannot be
refuted that the goings-on at the Bureau of Customs, a government agency, are
matters of public interest. It is
now a matter of establishing whether the articles of Tulfo are protected as
qualified privileged communication or are defamatory and written with malice,
for which he would be liable.
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 Journalists Code of Ethics adopted
by the National Union of Journalists of the Philippines 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.
In the present case, it cannot be said that Tulfo followed
the Journalists 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. So dahil
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 South Harbor, 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.
Sos 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 Tulfos 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.)
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. (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. Tulfos
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. (Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 541, 574). 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, A.M. No. 93-2-037 SC, April 6, 1995, 3 SCRA 299, 332:
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 the reckless disregard of private reputation by
publishing or circulating defamatory statements without
any bona 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 Philippines.
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 proceedings which are not of
confidential nature, or of a statement,
report or speech delivered in said proceedings, or of
any other actperformed 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.
(2 Reyes, Luis
B., THE REVISED PENAL CODE 858 (13th ed., 1993).
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 Tulfos 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, Tulfos articles do not meet the standard. Fair is defined
as having the qualities of impartiality and honesty. [BLACKS LAW DICTIONARY 595 (6th ed., 1990)]. 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, 376
US 254, 11 L ed. 2nd 686, and reiterated in Flor v.
People, G.R. No. 139987, March
31, 2005, 454 SCRA 440, 456, 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, 29
Phil. 595 (1915), 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.
Leaving the discussion of qualified privileged communication,
Tulfo also argues that the lower court misappreciated the evidence presented as
to the identity of the complainant: that Tulfo wrote about Atty. Ding So, an
official of the Bureau of Customs who worked at the South Harbor, whereas the
complainant was Atty. Carlos So who worked at the NAIA. He claims that
there has arisen a cloud of doubt as to the identity of the real party referred
to in the articles.
This argument is patently without merit.
The prosecution was able to present the testimonies of two
other witnesses who identified Atty. So from Tulfos articles. There is the
certification that there is only one Atty. So in the Bureau of
Customs. And most damning to Tulfos case is the last column he wrote on
the matter, referring to the libel suit against him by Atty. So of the Bureau
of Customs. In this article, Tulfo launched further attacks against Atty.
So, stating that the libel case was due to the exposs Tulfo had written on the
corrupt acts committed by Atty. So in the Bureau of Customs. This last
article is an admission on the part of Tulfo that Atty. So was in fact the
target of his attacks. He cannot now point to a putative Atty. Ding So
at South Harbor, or someone else using the name of Atty. So as the
real subject of his attacks, when he did not investigate the existence or
non-existence of an Atty. So at South Harbor, nor investigate the
alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot
say that there is doubt as to the identity of the Atty. So referred to in his
articles, when all the evidence points to one Atty. So, the complainant in the
present case.
X x x.”
