EDITORIAL

Presumption of malice in libel cases is unfair

Last week, the Northern Philippine Times was slapped with a libel case, the first in its eight years of existence over a report on illegal logging in Bokod, Benguet. Since it is still due for review by the prosecutor’s office in Bayombong, Nueva. Vizcaya where the case was filed, we will not discuss its merits.

Over the years, newspapers and other media outfits like television and radio have been slapped with libel cases by the rich and the powerful and those who professed to be aggrieved. Getting a libel suit is not just irritating but a waste of time, effort and money particularly if the charge is baseless or unfounded but only meant to harass the reporter or media outfit.

It is a welcome development that some quarters would want now to “decriminalize” libel, which means dropping the imprisonment aspect of penalties for those convicted of libel and limiting liabilities to payment of civil damages. Working journalists welcome this.

Scrapping of prison terms is welcome, but that may not be necessary as long as state prosecutors and judges are fair and reject the inducements of complainants with money and influence. In a level field, true journalists can defend what they write. Whatever direction the decriminalization move takes, the Supreme Court has taken the initiative of advising judges in the lower courts to avoid imposing jail sentences (and only render judgment for damages) in libel convictions.

Some lawmakers whose hearts allegedly bleed for poor newspapermen keep pushing for decriminalizing libel. But newspapermen would prefer they work instead on amending the law on libel to remove the unfair presumption of malice on the part of the writer even before the trial starts. Under our system of laws, one is presumed innocent until proved guilty. The prior presumption of malice in libel cases goes against this basic rule.

Under certain circumstances, a writer sued for libel is presumed by law to have been motivated by malice or ill will. He has to overturn this negative presumption to get off the hook.
This violation of journalists’ right to equal protection should be expunged from the penal code and the move of certain quarters in pushing this is a welcome development.
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Libel as defined under Article 353 of the Revised Penal Code is — and this is the language of the law — a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

From this definition elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. These elements of libel, except malice, lawyers say, are easy to prove or disprove since the published piece is there as public exhibit. The main defense line in libel cases is to show that at least one element is missing. If one element is not there, there is no libel.
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Legal luminaries say among all the elements, malice is the most difficult to prove because it is mainly in the mind. However, the law as it is now written presumes that malice is present in every defamatory imputation. Article 354 of the Revised Penal Code says:

“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

“1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

“2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”
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The usual defense against malice in law is to show that the matter written about is qualifiedly privileged. For instance, when a reporter writes on a privilege speech delivered by a senator on an alleged scandal and persons are mentioned, the writer shares in the lawmaker’s (parliamentary) immunity and his report is deemed privileged.

Once it is established that the article is privileged, the burden of proving actual malice (malice in fact) rests on the complainant. The thesis is that from the very beginning, the burden of proving malice should rest on the complainant and not merely presumed by law (malice in law).
It should not be that difficult to rewrite or amend the law to give journalists the same universal right to presumption of innocence.