ELECTRONIC LIBEL?

Judge B charged Judge A with Conduct Unbecoming of a Judge through the

commission of the following:

(1) The crime of Libel by sending email messages casting aspersion upon complainants
name to her friend Atty. C;

(2) The crime of Grave Oral Defamation by uttering defamatory remarks against
complainant to her sister-in-law Judge D. The complaint of defamation is the alleged
painting of her as a judge who has a particular greed or obsession for awards and
whose writing ability is unexceptional by Judge A who even intimated to judge Bs
sister-in-law that the complainants staff resented her. As to Judge B, the complainants
alleged unexceptional ability to write decisions, it is worthy to note that it was Judge A
who praised complainant in one of her email messages saying she writes very good
Decision. Now, why was Judge A singing a different tune when she spoke with
complainants sister-in-law that she found her to be not an exceptional writer? This
uttering of defamatory remark that when Judge A found her (Judge B) to be not an
exceptional writer, Judge A was already appointed as a Judge. As evidence, Judge
B attached the alleged emails of Judge A to prove the administrative complaint
against the latter;

(3) The crime of Libel against Judge As mother for writing that Judge B is bisexual;
and

(4) The crime of Libel against unnamed Judges for writing defamatory emails against
them;

Is Judge A liable for Conduct Unbecoming of a Judge? The answer is in the negative.

Judge B did not present any proof that Libel was committed against her by Judge A.

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There was no witness presented to prove it. There was no police blotter of libelous
statements uttered by Judge A against Judge B and other unnamed Judges in her
complaint.

Judge Bs sister-in-law did not show any text message to prove that defamatory
statements were made by Judge A to her at the time of alleged uttering them at a
Judges seminar.

Judge A did not malign and harass Judge B as well as other Judges as claimed by
the latter who failed to present any proof on these charges. Judge A, a newly-
appointed Judge, has no motive to do the maligning and harassing against Judge B
who was treated as a good friend prior to the filing of a letter-complaint and subsequent
notarized Affidavit and other subsequent letters that are false and defamatory.

Judge A did not approach Judge B or call the latter anymore after their lunch out with
Judge Bs family members five months before the filing of the administrative complaint
against Judge A.

About Judge A mothers letters against Judge B, these letters are not defamatory.
Describing Judge B as bisexual is not libelous but because there is a strong possibility
about the active participation of her husband Atty. X in the incidents involved in this
administrative case, such description of a sexual orientation may be inaccurate. The NY
article titled: Label of Gay is No Longer Defamatory, Court Rules was submitted to the
Office of Court Administrator to refute the charge of Libel of Judge B against the
mother of Judge A.

According to Judge A: A friend does not hit and betray another friend unless he or she is
hit and betrayed, this is understandable because by law of nature, a person was given a
reasonable amount of aggression to repel an unlawful and unfair attack his or her person
and honor as a form of self-defense. The self-defense as a justifying circumstance that
exempts one from a criminal liability as provided under Article 11 of the Revised Penal
Code includes defense of ones honor or reputation. Self-defense is mans inborn right. In
a physical assault, retaliation becomes unlawful after the attack has ceased, because there
would be no further harm to repel. But that is not the case when it is aimed at a persons
good name. Once the aspersion is cast, its sting clings and the one thus defamed may
avail himself of all necessary means to shake it off. He may hit back with another libel
which, if adequate will be justified. The enjoyment of ones reputation is within the legal
framework of the constitutional right to life, liberty or property. It is one of those rights
necessary to human society that underlie the whole scheme of civilization. Thus, there
exists a self-defense in libel to repel the libelous statements. But for one to invoke this

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novel defense, the defamatory statements made to defend oneself must be fair answer to
the libelous imputation and it must be related to it (People vs. Chua Hiong CA 51 OG
1932; Worcester vs. Ocampo 22 Phil. 42; People vs. Chua Hiong CA 51 OG 1932).
Our country has a jurisprudence on the right to reply of a defamed person synonymous
with self-defense in libel that was laid down in People vs. Chua Hiong CA 51 OG 1932.
In an international sphere, the right of reply is the right to defend oneself against false
and malicious public imputation and criticism.

Judge As mothers letters submitted in the administrative case are not libelous as
alleged by Judge B because:

(1) Proof of truth There is an acquittal if the libelous matter is true and it was published
with good motives and justifiable ends. This acquittal extends to imputation of an act or
omission not constituting a crime against government employees with respect to facts
related to the discharge of their official duties. Publication of what is true in good faith
and for justifiable ends; and
(2) Privileged communications A privileged communication may either be absolutely
privileged or qualifiedly privileged. An absolute privileged communication containing
defamatory statements and imputations is not actionable even if the author acted in bad
faith. An example is Article VI, Section 11, 1987 Constitution that exempts a member of
Congress from liability for any speech or debate in the congress or in any Committee
thereof. On the other hand, a qualified privileged communication containing defamatory
statements and imputations is not actionable when there is a good intention or justifiable
motive. To this category belong the private communications and fair and true report
without any comments or remarks. A private communication made by any person to
another in the performance of any legal, moral or social duty gives a privileged character
of a communication destroys the presumption of malice.

Before Investigating Justice Y, Judge A argued that the comments in the emails
subject matter of the private online conversations that are complained by Judge B as
Libelous are not actionable statements. She did not commit electronic libel to anyone.

For unknown reasons, Judge B threatened to sue Judge A with electronic libel for
alleged defamation of Judges on emails that allegedly happened long time ago when
she was a public prosecutor, yet there are no proofs that exist for that electronic libel.
Judge B did not submit any proof to the Office of the Court Administrator.

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Judge B did not show the alleged emails that are libelous against her and all unnamed
Judges allegedly written by Judge A to the Office of the Court Administrator and
Investigating Justice Y.

As to the false and malicious charge of electronic libel the jurisprudence to support that
no electronic libel was committed is BidZirk, LLC, et al. v Philip J. Smith C.A. No.
6:06-109-HMH (D.S.C. October 22, 2007):

Defamation Claims Fail Because Allegedly Libelous Statements Are Non-Actionable

Statements Of Opinion - Defendant Philip Smith maintains a blog at
www.jackwhispers.blogspot.com. Smith wrote a four part article titled Special Report:
You Gotta Be Berserk to Use an eBay Listing Company! The Whole Story that
engendered this lawsuit. The article was critical of plaintiff BidZirk LLC, an auction listing
company, and contained its trademark. The article also described the positive and
negative aspects of using an auction listing company, and provided both a checklist for
using such companies, and tips for selling items on eBay. Among other things,
defendants article described BidZirks president, Daniel Schmidt, as a yes man who
over promised and under delivered .... More particularly, the article stated: From the
beginning ... I could tell the owner was a yes man. Of course, I have to be honest ...
eBay is; in and of itself a yes man paradise. Many sellers over promise and under
deliver. Smiths article also contained a link to another website which contained a
photograph of Schmidt and his wife. Accompanying this link was text which stated: He
explained to me how he had just gotten married and was planning his honeymoon in a
weeks time. Wait! He was getting married, going on a honeymoon, and starting a (in his
own words) multi-location business that will be national in 5 years time? Upset with this
article, plaintiffs commenced this suit, asserting claims of trademark infringement in
violation of the Lanham Act, defamation and invasion of privacy.
The Court granted defendants motion for summary judgment, and dismissed the action.
Notably, defendant was proceeding pro se.
The Court dismissed plaintiffs defamation claim, finding the challenged statements non-
actionable statements of opinion. Said the Court: Opinion statements, defamatory or
otherwise, are not actionable unless they contain provably true or false connotations.
The statement that I could tell the owner was a yes man is an opinion statement that
cannot be characterized as true or false. The term yes man has different meanings to
different people. ... Clearly, if the statement was not capable of being verified as false,
there could be no liability for defamation. Based on the foregoing, calling Schmidt a yes
man cannot give rise to liability for defamation. Schmidt alleges that Smiths statements
that Schmidt was a yes man who over promised and under delivered is defamation per
se. The court has reviewed the article and the court finds that Smiths statements about
Schmidt are patently not defamatory. Smith stated in the article as follows: From the
beginning . . . I could tell the owner was a yes man. Of course, I have to be honest . . .
eBay is; in and of itself a yes man paradise. Many sellers over promise and under deliver.
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Although the owner seemed like a yes man . . . I had done my home work . . . he had
owned an ecommerce B2B company called ChannelLinx. Tech savvy? Possibly . . . Under
the First Amendment there is no such thing as a false idea. However pernicious an
opinion may seem, we depend for its correction not on the conscience of judges and
juries, but on the competition of other ideas. But there is no constitutional value in false
statements of fact (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 [1974]). An alleged
defamatory statement must be provable as false before there can be liability under state
defamation law ( Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 [1990]). Opinion
statements, defamatory or otherwise, are not actionable unless they contain provably true
or false factual connotations ( Woodward v. Weiss, 932 F. Supp. 723, 726 [D.S.C. 1996]).
The statement that I could tell the owner was a yes man is an opinion statement that
cannot be characterized as true or false. The term yes man has different meanings to
different people ( See McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) finding that
the term scam means different things to different people . . . and there is not a single
usage in common phraseology. While some connotations of the word may encompass
criminal behavior, others do not. The lack of precision makes the assertion X is a scam
incapable of being proven true or false citing Lauderback v. Am. Broad. Cos., Inc., 741
F.2d 193, 196 (8th Cir. 1984), an insurance agent referred to as a crook. Clearly, if the
statement was not capable of being verified as false, there could be no liability for
defamation (Woodward, 932 F. Supp. at 726). Based on the foregoing, calling Schmidt a
yes man cannot give rise to liability for defamation. Upon review of the content of the
article, the court finds that Smiths use of the BidZirk mark in the article was in the context
of news reporting or news commentary. The article posted by Smith concerning the
Plaintiffs is written for the purpose of conveying information to the public. In the four
installments of the article, Smith describes his experience with BidZirk in great detail. The
fact that Smith reports negatively about his experience with BidZirk does not dictate that
the articles function or intent was not news reporting or news commentary. There is no
evidence that the sole purpose of the article was to denigrate BidZirk. Smiths article was
titled Special Report: You Gotta Be Berserk to Use an eBay Listing Company! The Whole
Story. Smith plainly states at the beginning of the article as follows: In this special report .
. . Ill be telling my detailed story of using such a company and relate how my selling Apple
parts on eBay for 9 years has given me unique insight into this matter. Smith further
states that he has done research in preparation for his article as follows: This is my story
as experienced by me personally. I have dealt with a company called BIDZIRK, in my
home town. I have also visited several competitors. In doing extensive Google research, I
have found that my problems are almost universal . . . but that only larger clients really
complain. At the end, I will offer a checklist for you to use when choosing a listing
company that includes questions you may not have thought of before. Smiths article
evidences his intent to report what he believed was a newsworthy story for consumers.
Based on the foregoing, no genuine issues of material fact exist xxx
Also submitted to the Investigating Justice Y is an article:

Top court ruling upholds privacy of e-mail, texts, KIRK MAKIN - JUSTICE REPORTER,
The Globe and Mail published on Mar. 27 2013:

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The Supreme Court of Canada has moved decisively to prevent police from snooping
into e-mail, text messages and future forms of communication as yet undreamed of.
Citing the rapid development of unforeseen technologies, the court majority sought
Wednesday to forestall an Orwellian world in which police can easily tap into private
exchanges between individuals.
Technical differences inherent in new technology should not determine the scope of
protection afforded to private communications, said Justice Rosalie Abella, one of the
judges in a 5-2 majority.
The decision invalidated a general warrant obtained by a rural Ontario police force
during a 2010 investigation. The warrant had compelled an Internet provider Telus
Communications Co. to turn over a vast number of stored text messages, as well as
future texting exchanges involving three individuals.
The Supreme Court majority concluded that police should have been obliged to obtain a
judicial wiretap authorization a far more arduous hurdle that few investigations are able
to clear.
Scott Hutchison, a lawyer who argued the case for Telus, praised the court for bolstering
privacy of communications in an era where technology is constantly breaking into new
terrain.
The court is saying that the fact a communication takes a particular form cannot deprive
it of its private nature, Mr. Hutchison said. They are saying that it should be entitled to
the kind of elevated protection we normally assign to other media of communication.
Mr. Hutchison said the general warrant in the Telus case treated text messages as being
no more important than the sort of handwritten note a school teacher might grab from
the hands of mischievous student.
He said there is no logical reason why they would deserve any less protection than do
the confidentiality of telephone calls.
The ability to communicate, without any concerns that the state is going to be able to
stick its nose in there willy-nilly, is essential to the formation of a free and democratic
society, Mr. Hutchison said. The hallmark of totalitarian regimes is surveillance.
What the Supreme Court did today was say that we are not going to allow ourselves to
start sliding down a slippery slope by taking too narrow a view.

The emails of Judge A to Atty. C have email disclaimers that reads:

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CONFIDENTIALITY NOTE: This email and any files transmitted with it are confidential
and intended solely for the use of the individual or entity to whom they are addressed. If
you have received this email in error please notify the system manager. This message
contains confidential information and is intended only for the individual named. If you are
not the named addressee you should not disseminate, distribute or copy this e-mail.
Please notify the sender immediately by e-mail if you have received this e-mail by
mistake and delete this e-mail from your system. If you are not the intended recipient
you are notified that disclosing, copying, distributing or taking any action in reliance on
the contents of this information is strictly prohibited.

Letters and other private communications in writing are owned by the person to whom
they are addressed and delivered, but they cannot be published or disseminated without
the consent of the writer or his heirs. However, the court may authorize their publication
or dissemination if the public good or the interest of justice so requires (Art. 723 of the
New Civil Code).

The privacy of electronic mails and documents are protected by Philippine laws.

Moreover, violation of this privacy is not only a tortuous act but a criminal offense.

Republic Act No. 8792 (An Act Providing for the Recognition and Use of Electronic
Commercial and Non-Commercial Transactions and Documents, Penalties for Unlawful
Use Thereof and For Other Purposes) provides:

Section 32. Obligation of Confidentiality. - Except for the purposes authorized under this
Act, any person who obtained access to any electronic key, electronic data message, or
electronic document, book, register, correspondence, information, or other material
pursuant to any powers conferred under this Act, shall not convey to or share the same
with any other person.

Section 33. Penalties. - The following Acts shall be penalized by fine and/or imprisonment,
as follows: (d) Other violations of the provisions of this Act, shall be penalized with a
maximum penalty of One Million Pesos (P1,000,000.00) or six (6) years imprisonment.

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 The actual case is A.M. MTJ 13-1821 Judge Emily L. San Gaspar Gito vs.
Judge Eliza B. Yu.

The Philippine Supreme Court sustained the legal arguments of Judge Eliza B.
Yu. All libel charges against Judge Eliza B. Yu were dismissed.