Commissioner of Public Affairs, and the duties are supervision of the Police Department, Fire
Libel/Tort
New York Times Co. v. Sullivan (No. 39)
Argued: January 6, 1964
Decided: March 9, 1964
273 Ala. 656, 144 So.2d 25, reversed and remanded.
Syllabus
Opinion, Brennan
Concurrence, Black
Concurrence, Goldberg
Syllabus
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he
had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared
over the names of the four individual petitioners and many others. The advertisement included
statements, some of which were false, about police action allegedly directed against students who
participated in a civil rights demonstration and against a leader of the civil rights movement; respondent
claimed the statements referred to him because his duties included supervision of the police
department. The trial judge instructed the jury that such statements were "libelous per se," legal injury
being implied without proof of actual damages, and that, for the purpose of compensatory damages,
malice was presumed, so that such damages could be awarded against petitioners if the statements
were found to have been published by them and to have related to respondent. As to punitive damages,
the judge instructed that mere negligence was not evidence of actual malice, and would not justify an
award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be
found before punitive damages could be awarded, or that a verdict for respondent should differentiate
between compensatory and punitive damages. The jury found for respondent, and the State Supreme
Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official
for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the
statement was made with knowledge of its falsity or with reckless disregard of whether it was true or
false. Pp. 265-292.
(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil
action, is "state action" under the Fourteenth Amendment. P. 265.
(b) Expression does not lose constitutional protection to which it would otherwise be entitled because it
appears in the form of a paid advertisement. Pp. 265-266. [p255]
(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award
of damages for false statements unless "actual malice" -- knowledge that statements are false or in
reckless disregard of the truth -- is alleged and proved. Pp. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate between punitive
damages, as to which, under state law, actual malice must be proved, and general damages, as to which
it is "presumed," precludes any determination as to the basis of the verdict, and requires reversal, where
presumption of malice is inconsistent with federal constitutional requirements. P. 284.
(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed
to support a finding that the statements were made with actual malice or that they related to
respondent. Pp. 285-292.
Opinion
BRENNAN, J., Opinion of the Court
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We are required in this case to determine for the first time the extent to which the constitutional
protections for speech and press limit a State's power to award damages in a libel action brought by a
public official against critics of his official conduct.
Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery,
Alabama. He testified that he was
Department, Department of Cemetery and Department of Scales.
He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama
clergymen, and against petitioner the New York Times Company, a New York corporation which
publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County
awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme
Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25.
Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement that
was carried in the New York Times on March 29, 1960. [n1] Entitled "Heed Their Rising Voices," the
advertisement began by stating that,
As the whole world knows by now, thousands of Southern Negro students are engaged in widespread
nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by
the U.S. Constitution and the Bill of Rights.
It went on to charge that, in their efforts to uphold these guarantees, they are being met by an
unprecedented wave of terror by those who would deny and negate that document which the whole
world looks upon as setting the pattern for modern freedom. . . .
Succeeding [p257] paragraphs purported to illustrate the "wave of terror" by describing certain alleged
events. The text concluded with an appeal for funds for three purposes: support of the student
movement, "the struggle for the right to vote," and the legal defense of Dr. Martin Luther King, Jr.,
leader of the movement, against a perjury indictment then pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their activities in public affairs,
religion, trade unions, and the performing arts. Below these names, and under a line reading "We in the
south who are struggling daily for dignity and freedom warmly endorse this appeal," appeared the
names of the four individual petitioners and of 16 other persons, all but two of whom were identified as
clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the
"Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and the officers of
the Committee were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of
respondent's claim of libel. They read as follows:
Third paragraph:
In Montgomery, Alabama, after students sang "My Country, 'Tis of Thee" on the State Capitol steps, their
leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the
Alabama State College Campus. When the entire student body protested to state authorities by refusing
to reregister, their dining hall was padlocked in an attempt to starve them into submission.
Sixth paragraph:
Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation and
violence. They have bombed his home, almost killing his wife and child. They have [p258] assaulted his
person. They have arrested him seven times -- for "speeding," "loitering" and similar "offenses." And
now they have charged him with "perjury" -- a felony under which they could imprison him for ten years.
...
Although neither of these statements mentions respondent by name, he contended that the word
"police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the
Police Department, so that he was being accused of "ringing" the campus with police. He further claimed
that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the
dining hall in order to starve the students into submission. [n2] As to the sixth paragraph, he contended
that, since arrests are ordinarily made by the police, the statement "They have arrested [Dr. King] seven
times" would be read as referring to him; he further contended that the "They" who did the arresting
would be equated with the "They" who committed the other described acts and with the "Southern
violators." Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence
him, of answering Dr. King's protests with "intimidation and violence," bombing his home, assaulting his
person, and charging him with perjury. Respondent and six other Montgomery residents testified that
they read some or all of the statements as referring to him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate
descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration
on the State Capitol steps, they sang the National Anthem and not "My [p259] Country, 'Tis of Thee."
Although nine students were expelled by the State Board of Education, this was not for leading the
demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County
Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion,
not by refusing to register, but by boycotting classes on a single day; virtually all the students did register
for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only
students who may have been barred from eating there were the few who had neither signed a
preregistration application nor requested temporary meal tickets. Although the police were deployed
near the campus in large numbers on three occasions, they did not at any time "ring" the campus, and
they were not called to the campus in connection with the demonstration on the State Capitol steps, as
the third paragraph implied. Dr. King had not been arrested seven times, but only four, and although he
claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a
courtroom, one of the officers who made the arrest denied that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to him, respondent
was allowed to prove that he had not participated in the events described. Although Dr. King's home
had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated
respondent's tenure as Commissioner, and the police were not only not implicated in the bombings, but
had made every effort to apprehend those who were. Three of Dr. King's four arrests took place before
respondent became Commissioner. Although Dr. King had, in fact, been indicted (he was subsequently
acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had
nothing to do with procuring the indictment. [p260]
Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel.
[n3] One of his witnesses, a former employer, testified that, if he had believed the statements, he
doubted whether he "would want to be associated with anybody who would be a party to such things
that are stated in that ad," and that he would not reemploy respondent if he believed "that he allowed
the Police Department to do the things that the paper say he did." But neither this witness nor any of the
others testified that he had actually believed the statements in their supposed reference to respondent.
The cost of the advertisement was approximately $4800, and it was published by the Times upon an
order from a New York advertising agency acting for the signatory Committee. The agency submitted the
advertisement with a letter from A. Philip Randolph, Chairman of the Committee, certifying that the
persons whose names appeared on the advertisement had given their permission. Mr. Randolph was
known to the Times' Advertising Acceptability Department as a responsible person, and, in accepting the
letter as sufficient proof of authorization, it followed its established practice. There was testimony that
the copy of the advertisement which accompanied the letter listed only the 64 names appearing under
the text, and that the statement, "We in the south . . . warmly endorse this appeal," and the list of names
thereunder, which included those of the individual petitioners, were subsequently added when the first
proof of the advertisement was received. Each of the individual petitioners testified that he had not
authorized the use of his name, and that he had been unaware of its use until receipt of respondent's
demand for a retraction. The manager of the Advertising Acceptability [p261] Department testified that
he had approved the advertisement for publication because he knew nothing to cause him to believe
that anything in it was false, and because it bore the endorsement of "a number of people who are well
known and whose reputation" he "had no reason to question." Neither he nor anyone else at the Times
made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times
news stories relating to some of the described events or by any other means.
Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of
a publication concerning his official conduct unless he first makes a written demand for a public
retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, 914. Respondent served
such a demand upon each of the petitioners. None of the individual petitioners responded to the
demand, primarily because each took the position that he had not authorized the use of his name on the
advertisement, and therefore had not published the statements that respondent alleged had libeled him.
The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating,
among other things, that "we . . . are somewhat puzzled as to how you think the statements in any way
reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements
in the advertisement reflect on you." Respondent filed this suit a few days later without answering the
letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand
of Governor John Patterson of Alabama, who asserted that the publication charged him with grave
misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of
the State Board of Education of Alabama.
When asked to explain why there had been a retraction for the Governor but not for respondent, the
[p262] Secretary of the Times testified:
We did that because we didn't want anything that was published by The Times to be a reflection on the
State of Alabama, and the Governor was, as far as we could see, the embodiment of the State of
Alabama and the proper representative of the State, and, furthermore, we had by that time learned
more of the actual facts which the and purported to recite and, finally, the ad did refer to the action of
the State authorities and the Board of Education, presumably of which the Governor is the ex-officio
chairman. . . .
On the other hand, he testified that he did not think that "any of the language in there referred to Mr.
Sullivan."
The trial judge submitted the case to the jury under instructions that the statements in the
advertisement were "libelous per se," and were not privileged, so that petitioners might be held liable if
the jury found that they had published the advertisement and that the statements were made "of and
concerning" respondent. The jury was instructed that, because the statements were libelous per se, "the
law . . . implies legal injury from the bare fact of publication itself," "falsity and malice are presumed,"
"general damages need not be alleged or proved, but are presumed," and "punitive damages may be
awarded by the jury even though the amount of actual damages is neither found nor shown." An award
of punitive damages -- as distinguished from "general" damages, which are compensatory in nature --
apparently requires proof of actual malice under Alabama law, and the judge charged that mere
negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an
award of exemplary or punitive damages.
He refused to charge, however, that the jury must be "convinced" of malice, in the sense of "actual
intent" to harm or "gross negligence and recklessness," to make such an award, and he also refused to
require that a verdict for respondent differentiate between compensatory and punitive damages. The
judge rejected petitioners' contention [p263] that his rulings abridged the freedoms of speech and of the
press that are guaranteed by the First and Fourteenth Amendments.
In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's rulings and
instructions in all respects. 273 Ala. 656, 144 So.2d 25. It held that, where the words published tend to
injure a person libeled by them in his reputation, profession, trade or business, or charge him with an
indictable offense, or tend to bring the individual into public contempt, they are "libelous per se"; that
"the matter complained of is, under the above doctrine, libelous per se, if it was published of and
concerning the plaintiff", and that it was actionable without "proof of pecuniary injury . . . . such injury
being implied." Id. at 673, 676, 144 So.2d at 37, 41. It approved the trial court's ruling that the jury could
find the statements to have been made "of and concerning" respondent, stating:
We think it common knowledge that the average person knows that municipal agents, such as police and
firemen, and others, are under the control and direction of the city governing body, and, more
particularly, under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of
the body.
Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the verdict was not
excessive, the court said that malice could be inferred from the Times' "irresponsibility" in printing the
advertisement while the Times, in its own files, had articles already published which would have
demonstrated the falsity of the allegations in the advertisement;
from the Times' failure to retract for respondent while retracting for the Governor, whereas the falsity of
some of the allegations was then known to the Times and "the matter contained in the advertisement
was equally false as to both parties", and from the testimony of the Times' Secretary that, [p264] apart
from the statement that the dining hall was padlocked, he thought the two paragraphs were
"substantially correct." Id. at 686-687, 144 So.2d at 50-51. The court reaffirmed a statement in an earlier
opinion that "There is no legal measure of damages in cases of this character." Id. at 686, 144 So.2d at
50. It rejected petitioners' constitutional contentions with the brief statements that "The First
Amendment of the U.S. Constitution does not protect libelous publications," and "The Fourteenth
Amendment is directed against State action, and not private action." Id. at 676, 144 So.2d at 40.
Because of the importance of the constitutional issues involved, we granted the separate petitions for
certiorari of the individual petitioners and of the Times. 371 U.S. 946. We reverse the judgment. We hold
that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the
safeguards for freedom of speech and of the press that are required by the First and Fourteenth
Amendments in a libel action brought by a public official against critics of his official conduct. [n4] We
[p265] further hold that, under the proper safeguards, the evidence presented in this case is
constitutionally insufficient to support the judgment for respondent.
I.
We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts
from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that "The
Fourteenth Amendment is directed against State action, and not private action." That proposition has no
application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have
applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional
freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is
common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, 908-917. The test
is not the form in which state power has been applied but, whatever the form, whether such power has,
in fact, been exercised. See Ex parte Virginia, 100 U.S. 339, 346-347; American Federation of Labor v.
Swing. 312 U.S. 321.
The second contention is that the constitutional guarantees of freedom of speech and of the press are
inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements
were published as part of a paid, "commercial" advertisement. The argument relies on Valentine v.
Chrestensen, 316 U.S. 52, where the Court held that a city ordinance forbidding street distribution of
commercial and business advertising matter did not abridge the First Amendment freedoms, even as
applied to a handbill having a commercial message on one side but a protest against certain official
action, on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the
constitutional protection for "the freedom of communicating [p266] information and disseminating
opinion"; its holding was based upon the factual conclusions that the handbill was "purely commercial
advertising" and that the protest against official action had been added only to evade the ordinance.
The publication here was not a "commercial" advertisement in the sense in which the word was used in
Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed
abuses, and sought financial support on behalf of a movement whose existence and objectives are
matters of the highest public interest and concern. See NAACP v. Button, 371 U.S. 415, 435. That the
Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that
newspapers and books are sold. Smith v. California, 361 U.S. 147, 150; cf. Bantam Books, Inc., v. Sullivan,
372 U.S. 58, 64, n. 6. Any other conclusion would discourage newspapers from carrying "editorial
advertisements" of this type, and so might shut off an important outlet for the promulgation of
information and ideas by persons who do not themselves have access to publishing facilities -- who wish
to exercise their freedom of speech even though they are not members of the press. Cf. Lovell v. Griffin,
303 U.S. 444, 452; Schneider v. State, 308 U.S. 147, 164. The effect would be to shackle the First
Amendment in its attempt to secure "the widest possible dissemination of information from diverse and
antagonistic sources." Associated Press v. United States, 326 U.S. 1, 20. To avoid placing such a handicap
upon the freedoms of expression, we hold that, if the allegedly libelous statements would otherwise be
constitutionally protected from the present judgment, they do not forfeit that protection because they
were published in the form of a paid advertisement. [n5] [p267]
II
Under Alabama law, as applied in this case, a publication is "libelous per se" if the words "tend to injure a
person . . . in his reputation" or to "bring [him] into public contempt"; the trial court stated that the
standard was met if the words are such as to "injure him in his public office, or impute misconduct to
him in his office, or want of official integrity, or want of fidelity to a public trust. . . ." The jury must find
that the words were published "of and concerning" the plaintiff, but, where the plaintiff is a public
official, his place in the governmental hierarchy is sufficient evidence to support a finding that his
reputation has been affected by statements that reflect upon the agency of which he is in charge. Once
"libel per se" has been established, the defendant has no defense as to stated facts unless he can
persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263,
178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So.2d 441, 457-458
(1960). His privilege of "fair comment" for expressions of opinion depends on the truth of the facts upon
which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350
(1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be
awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to
recovery of punitive damages, and the defendant may, in any event, forestall a punitive award by a
retraction meeting the statutory requirements. Good motives and belief in truth do not negate an
inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord
them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So.2d at 458. [p268]
The question before us is whether this rule of liability, as applied to an action brought by a public official
against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed
by the First and Fourteenth Amendments.
Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the
Constitution does not protect libelous publications. [n6] Those statements do not foreclose our inquiry
here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of
the official conduct of public officials. The dictum in Pennekamp v. Florida, 328 U.S. 331, 348-349, that
"when the statements amount to defamation, a judge has such remedy in damages for libel as do other
public servants," implied no view as to what remedy might constitutionally be afforded to public officials.
In Beauharnais v. Illinois, 343 U.S. 250, the Court sustained an Illinois criminal libel statute as applied to a
publication held to be both defamatory of a racial group and "liable to cause violence and disorder." But
the Court was careful to note that it "retains and exercises authority to nullify action which encroaches
on freedom of utterance under the guise of punishing libel"; for "public men are, as it were, public
property," and "discussion cannot be denied, and the right, as well as the duty, of criticism must not be
stifled." Id. at 263-264, and n. 18. In the only previous case that did present the question of
constitutional limitations upon the power to award damages for libel of a public official, the Court was
equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642.
[p269] In deciding the question now, we are compelled by neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other "mere labels" of state law. NAACP v. Button, 371 U.S.
415, 429. Like insurrection, [n7] contempt, [n8] advocacy of unlawful acts, [n9] breach of the peace,
[n10] obscenity, [n11] solicitation of legal business, [n12] and the various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no talismanic immunity
from constitutional limitations. It must be measured by standards that satisfy the First Amendment.
The general proposition that freedom of expression upon public questions is secured by the First
Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes
desired by the people." Roth v. United States, 354 U.S. 476, 484.
The maintenance of the opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our constitutional system.
Stromberg v. California, 283 U.S. 359, 369. "[I]t is a prized American privilege to speak one's mind,
although not always with perfect good taste, on all public institutions," Bridges v. California, 314 U.S.
252, 270, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract
discussion." NAACP v. Button, 371 U.S. 415, 429. [p270] The First Amendment, said Judge Learned Hand,
presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than
through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked
upon it our all.
United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his
concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic
formulation:
Those who won our independence believed . . . that public discussion is a political duty, and that this
should be a fundamental principle of the American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the
fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing
the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and
assembly should be guaranteed.
Thus, we consider this case against the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See
Terminiello v. Chicago, 337 U.S. 1, 4; De Jonge v. Oregon, 299 U.S. 353, [p271] 365. The present
advertisement, as an expression of grievance and protest on one of the major public issues of our time,
would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that
protection by the falsity of some of its factual statements and by its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize
an exception for any test of truth -- whether administered by judges, juries, or administrative officials --
and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U.S.
513, 525-526. The constitutional protection does not turn upon "the truth, popularity, or social utility of
the ideas and beliefs which are offered." NAACP v. Button, 371 U.S. 415, 445. As Madison said, "Some
degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true
than in that of the press." 4 Elliot's Debates on the Federal Constitution (1876), p. 571. In Cantwell v.
Connecticut, 310 U.S. 296, 310, the Court declared:
In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the people of this nation have
ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a
democracy.
That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of
expression [p272] are to have the "breathing space" that they "need . . . to survive," NAACP v. Button,
371 U.S. 415, 433, was also recognized by the Court of Appeals for the District of Columbia Circuit in
Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge
Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's libel suit based
upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:
Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete
doctrine that the governed must not criticize their governors. . . . The interest of the public here
outweighs the interest of appellant or any other individual. The protection of the public requires not
merely discussion, but information. Political conduct and views which some respectable people approve,
and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a
man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken
from the field of free debate. [n13]
Injury to official reputation affords no more warrant for repressing speech that would otherwise be free
than does factual error. Where judicial officers are involved, this Court has held that concern for the
dignity and [p273] reputation of the courts does not justify the punishment as criminal contempt of
criticism of the judge or his decision. Bridges v. California, 314 U.S. 252. This is true even though the
utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342, 343, n.
5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of
justice. See also Craig v. Harney, 331 U.S. 367; Wood v. Georgia, 370 U.S. 375. If judges are to be treated
as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U.S. at 376, surely the
same must be true of other government officials, such as elected city commissioners. [n14] Criticism of
their official conduct does not lose its constitutional protection merely because it is effective criticism,
and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism
of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be
drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a
national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression
(1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a
crime, punishable by a $5,000 fine and five years in prison,
if any person shall write, print, utter or publish . . . any false, scandalous and malicious [p274] writing or
writings against the government of the United States, or either house of the Congress . . . or the
President . . . with intent to defame . . . or to bring them, or either of them, into contempt or disrepute;
or to excite against them, or either or any of them, the hatred of the good people of the United States.
The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both
of the law and the facts. Despite these qualifications, the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of
1798, the General Assembly of Virginia resolved that it doth particularly protest against the palpable and
alarming infractions of the Constitution in the two late cases of the "Alien and Sedition Acts," passed at
the last session of Congress. . . . [The Sedition Act] exercises . . . a power not delegated by the
Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto
-- a power which, more than any other, ought to produce universal alarm because it is leveled against
the right of freely examining public characters and measures, and of free communication among the
people thereon, which has ever been justly deemed the only effectual guardian of every other right.
4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the protest. His
premise was that the Constitution created a form of government under which "The people, not the
government, possess the absolute sovereignty." The structure of the government dispersed power in
reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of
government was "altogether different" from the British form, under which the Crown was sovereign and
the people were subjects. "Is [p275] it not natural and necessary, under such different circumstances,"
he asked, "that a different degree of freedom in the use of the press should be contemplated?" Id., pp.
569-570. Earlier, in a debate in the House of Representatives, Madison had said:
If we advert to the nature of Republican Government, we shall find that the censorial power is in the
people over the Government, and not in the Government over the people.
4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said:
In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men, of every description, which has not been confined to the strict limits of the
common law. On this footing, the freedom of the press has stood; on this foundation it yet stands. . . .
4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials
was thus, in Madison's view, a fundamental principle of the American form of government. [n15] [p276]
Although the Sedition Act was never tested in this Court, [n16] the attack upon its validity has carried the
day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground
that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No.
86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its
invalidity was a matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong., 1st
Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act
and remitted their fines, stating:
I discharged every person under punishment or prosecution under the sedition law because I considered,
and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to
fall down and worship a golden image.
Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of
the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by
Brandeis, J., in Abrams v. United States, 250 U.S. 616, 630; Jackson, J., dissenting in Beauharnais v.
Illinois, 343 U.S. 250, 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley,
Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United
States (1942), pp. 27-28. These views reflect a broad consensus that the Act, because of the restraint it
imposed upon criticism of government and public officials, was inconsistent with the First Amendment.
There is no force in respondent's argument that the constitutional limitations implicit in the history of
the Sedition Act apply only to Congress, and not to the States. It is true that the First Amendment was
originally addressed only to action by the Federal Government, and [p277] that Jefferson, for one, while
denying the power of Congress "to controul the freedom of the press," recognized such a power in the
States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United States, 341 U.S. 494, 522, n. 4
(concurring opinion). But this distinction was eliminated with the adoption of the Fourteenth
Amendment and the application to the States of the First Amendment's restrictions. See, e.g., Gitlow v.
New York, 268 U.S. 652, 666; Schneider v. State, 308 U.S. 147, 160; Bridges v. California, 314 U.S. 252,
268; Edwards v. South Carolina, 372 U.S. 229, 235.
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the
reach of its civil law of libel. [n17] The fear of damage awards under a rule such as that invoked by the
Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal
statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for
example, has a criminal libel law which subjects to prosecution "any person who speaks, writes, or prints
of and concerning another any accusation falsely and maliciously importing the commission by such
person of a felony, or any other indictable offense involving moral turpitude," and which allows as
punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Alabama
Code, Tit. 14, 350. Presumably, a person charged with violation of this statute enjoys ordinary criminal
law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt.
These safeguards are not available to the defendant in a civil action. The judgment awarded in this case -
- without the need for any proof of actual pecuniary loss -- was one thousand times greater than the
maximum fine provided by the Alabama criminal statute, and one hundred times greater than that
provided by the Sedition Act. [p278] And since there is no double jeopardy limitation applicable to civil
lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication.
[n18] Whether or not a newspaper can survive a succession of such judgments, the pall of fear and
timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First
Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is a form of regulation that
creates hazards to protected freedoms markedly greater than those that attend reliance upon the
criminal law. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70.
The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous
statements honestly made is no less essential here than was the requirement of proof of guilty
knowledge which, in Smith v. California, 361 U.S. 147, we held indispensable to a valid conviction of a
bookseller for possessing obscene writings for sale. We said:
For, if the bookseller is criminally liable without knowledge of the contents, . . . He will tend to restrict
the books he sells to those he has inspected, and thus the State will have imposed a restriction upon the
distribution of constitutionally protected, as well as obscene, literature. . . . And the bookseller's burden
would become the public's burden, for, by restricting him, the public's access to reading matter would be
restricted. . . . [H]is timidity in the face of his absolute criminal liability thus would tend to restrict the
public's access to forms of the printed word which the State could not constitutionally [p279] suppress
directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the
whole public, hardly less virulent for being privately administered. Through it, the distribution of all
books, both obscene and not obscene, would be impeded.
( 361 U.S. 147, 153-154.) A rule compelling the critic of official conduct to guarantee the truth of all his
factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount -- leads to a
comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the
defendant, does not mean that only false speech will be deterred. [n19] Even courts accepting this
defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the
alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540
(C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892
(1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their
criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt
whether it can be proved in court or fear of the expense of having to do so. They tend to make only
statements which "steer far wider of the unlawful zone." Speiser v. Randall, supra, 357 U.S. at 526. The
rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and
Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a
public official from recovering damages for a defamatory falsehood relating to his official conduct unless
he proves that the statement was made [p280] with "actual malice" -- that is, with knowledge that it was
false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule, which
has been adopted by a number of state courts, [n20] is found in the Kansas case of Coleman v.
MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General, a candidate for reelection and a
member of the commission charged with the management and control of the state school fund, sued a
newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct
in connection with a school-fund transaction. The defendant pleaded privilege and the trial judge, over
the plaintiff's objection, instructed the jury that

where an article is published and circulated among voters for the sole purpose of giving what the
defendant [p281] believes to be truthful information concerning a candidate for public office and for the
purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in
good faith and without malice, the article is privileged, although the principal matters contained in the
article may be untrue, in fact, and derogatory to the character of the plaintiff, and in such a case the
burden is on the plaintiff to show actual malice in the publication of the article.
In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a
general verdict was returned for the defendant. On appeal, the Supreme Court of Kansas, in an opinion
by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P. at 286):
It is of the utmost consequence that the people should discuss the character and qualifications of
candidates for their suffrages. The importance to the state and to society of such discussions is so vast,
and the advantages derived are so great, that they more than counterbalance the inconvenience of
private persons whose conduct may be involved, and occasional injury to the reputations of individuals
must yield to the public welfare, although at times such injury may be great. The public benefit from
publicity is so great, and the chance of injury to private character so small, that such discussion must be
privileged.
The court thus sustained the trial court's instruction as a correct statement of the law, saying:
In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be
defamed by the communication must show actual malice or go remediless. This privilege extends to a
great variety of subjects, and includes matters of [p282] public concern, public men, and candidates for
office.
Such a privilege for criticism of official conduct [n21] is appropriately analogous to the protection
accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U.S. 564,
575, this Court held the utterance of a federal official to be absolutely privileged if made "within the
outer perimeter" of his duties. The States accord the same immunity to statements of their highest
officers, although some differentiate their lesser officials and qualify the privilege they enjoy. [n22] But
all hold that all officials are protected unless actual malice can be proved. The reason for the official
privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and
effective administration of policies of government" and "dampen the ardor of all but the most resolute,
or the most irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360 U.S. at
571. Analogous considerations support the privilege for the citizen-critic of government. It is as much his
duty to criticize as it is the official's duty to administer. See Whitney v. California, 274 U.S. 357, 375
(concurring opinion of Mr. Justice Brandeis), quoted supra, p. 270. As Madison said, see supra p. 275,
"the censorial power is in the people over the Government, and not in the Government over the
people." It would give public servants an unjustified preference over the public they serve, if critics of
official conduct [p283] did not have a fair equivalent of the immunity granted to the officials themselves.
We conclude that such a privilege is required by the First and Fourteenth Amendments.
III
We hold today that the Constitution delimits a State's power to award damages for libel in actions
brought by public officials against critics of their official conduct. Since this is such an action, [n23] the
rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual
malice for an award of punitive damages, [n24] where general damages are concerned malice is
"presumed." Such a presumption is inconsistent [p284] with the federal rule. "The power to create
presumptions is not a means of escape from constitutional restrictions," Bailey v. Alabama, 219 U.S. 219,
239, "the showing of malice required for the forfeiture of the privilege is not presumed but is a matter
for proof by the plaintiff. . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959). [n25]
Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it
may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of
the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case
remanded. Stromberg v. California, 283 U.S. 359, 367-368; Williams v. North Carolina, 317 U.S. 287, 291-
292; see Yates v. United States, 354 U.S. 298, 311-312; Cramer v. United States, 325 U.S. 1, 36, n. 45.
Since respondent may seek a new trial, we deem that considerations of effective judicial administration
require us to review the evidence in the present record to determine [p285] whether it could
constitutionally support a judgment for respondent. This Court's duty is not limited to the elaboration of
constitutional principles; we must also in proper cases review the evidence to make certain that those
principles have been constitutionally applied. This is such a case, particularly since the question is one of
alleged trespass across "the line between speech unconditionally guaranteed and speech which may
legitimately be regulated." Speiser v. Randall, 357 U.S. 513, 525. In cases where that line must be drawn,
the rule is that we examine for ourselves the statements in issue and the circumstances under which
they were made to see . . . whether they are of a character which the principles of the First Amendment,
as adopted by the Due Process Clause of the Fourteenth Amendment, protect.
Pennekamp v. Florida, 328 U.S. 331, 335; see also One, Inc., v. Olesen, 355 U.S. 371; Sunshine Book Co. v.
Summerfield, 355 U.S. 372. We must "make an independent examination of the whole record," Edwards
v. South Carolina, 372 U.S. 229, 235, so as to assure ourselves that the judgment does not constitute a
forbidden intrusion on the field of free expression. [n26]
Applying these standards, we consider that the proof presented to show actual malice lacks the
convincing [p286] clarity which the constitutional standard demands, and hence that it would not
constitutionally sustain the judgment for respondent under the proper rule of law. The case of the
individual petitioners requires little discussion. Even assuming that they could constitutionally be found
to have authorized the use of their names on the advertisement, there was no evidence whatever that
they were aware of any erroneous statements or were in any way reckless in that regard. The judgment
against them is thus without constitutional support.
As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The
statement by the Times' Secretary that, apart from the padlocking allegation, he thought the
advertisement was "substantially correct," affords no constitutional warrant for the Alabama Supreme
Court's conclusion that it was a
cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been
impressed with the bad faith of The Times, and its maliciousness inferable therefrom.
The statement does not indicate malice at the time of the publication; even if the advertisement was not
"substantially correct" -- although respondent's own proofs tend to show that it was -- that opinion was
at least a reasonable one, and there was no evidence to impeach the witness' good faith in holding it.
The Times' failure to retract upon respondent's demand, although it later retracted upon the demand of
Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or
not a failure to retract may ever constitute such evidence, there are two reasons why it does not here.
First, the letter written by the Times reflected a reasonable doubt on its part as to whether the
advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal,
since it asked for an explanation on this point -- a request that respondent chose to ignore. Nor does the
retraction upon the demand of the Governor supply the [p287] necessary proof. It may be doubted that
a failure to retract, which is not itself evidence of malice, can retroactively become such by virtue of a
retraction subsequently made to another party. But, in any event, that did not happen here, since the
explanation given by the Times' Secretary for the distinction drawn between respondent and the
Governor was a reasonable one, the good faith of which was not impeached.
Finally, there is evidence that the Times published the advertisement without checking its accuracy
against the news stories in the Times' own files. The mere presence of the stories in the files does not, of
course, establish that the Times "knew" the advertisement was false, since the state of mind required for
actual malice would have to be brought home to the persons in the Times' organization having
responsibility for the publication of the advertisement. With respect to the failure of those persons to
make the check, the record shows that they relied upon their knowledge of the good reputation of many
of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip
Randolph, known to them as a responsible individual, certifying that the use of the names was
authorized. There was testimony that the persons handling the advertisement saw nothing in it that
would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of
a personal character"; [n27] their failure to reject it on this ground was not unreasonable. We think
[p288] the evidence against the Times supports, at most, a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding
of actual malice. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A.2d 440, 446
(1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957).
We also think the evidence was constitutionally defective in another respect: it was incapable of
supporting the jury's finding that the allegedly libelous statements were made "of and concerning"
respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to
establish a connection between it and himself. Thus, in his brief to this Court, he states:
The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the
testimony of a newspaper editor . . . ; a real estate and insurance man . . . ; the sales manager of a men's
clothing store . . . ; a food equipment man . . . ; a service station operator . . . , and the operator of a
truck line for whom respondent had formerly worked. . . . Each of these witnesses stated that he
associated the statements with respondent. . . .
(Citations to record omitted.) There was no reference to respondent in the advertisement, either by
name or official position. A number of the allegedly libelous statements -- the charges that the dining hall
was padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury prosecution
instituted against him -- did not even concern the police; despite the ingenuity of the arguments which
would attach this significance to the word "They," it is plain that these statements could not reasonably
be read as accusing respondent of personal involvement in the acts [p289] in question. The statements
upon which respondent principally relies as referring to him are the two allegations that did concern the
police or police functions: that "truckloads of police . . . ringed the Alabama State College Campus" after
the demonstration on the State Capitol steps, and that Dr. King had been "arrested . . . seven times."
These statements were false only in that the police had been "deployed near" the campus, but had not
actually "ringed" it, and had not gone there in connection with the State Capitol demonstration, and in
that Dr. King had been arrested only four times. The ruling that these discrepancies between what was
true and what was asserted were sufficient to injure respondent's reputation may itself raise
constitutional problems, but we need not consider them here. Although the statements may be taken as
referring to the police, they did not, on their face, make even an oblique reference to respondent as an
individual. Support for the asserted reference must, therefore, be sought in the testimony of
respondent's witnesses. But none of them suggested any basis for the belief that respondent himself was
attacked in the advertisement beyond the bare fact that he was in overall charge of the Police
Department and thus bore official responsibility for police conduct; to the extent that some of the
witnesses thought respondent to have been charged with ordering or approving the conduct or
otherwise being personally involved in it, they based this notion not on any statements in the
advertisement, and not on any evidence that he had, in fact, been so involved, but solely on the
unsupported assumption that, because of his official position, he must have been. [n28] This reliance on
the bare [p290] fact of respondent's official position [n29] was made explicit by the Supreme Court of
Alabama. That court, in holding that the trial court "did not err in overruling the demurrer [of the Times]
in the aspect that the libelous [p291] matter was not of and concerning the [plaintiff,]" based its ruling
on the proposition that:
We think it common knowledge that the average person knows that municipal agents, such as police and
firemen, and others, are under the control and direction of the city governing body, and more
particularly under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of
the body.
This proposition has disquieting implications for criticism of governmental conduct. For good reason, no
court of last resort in this country has ever held, or even suggested, that prosecutions for libel on
government have any place in the American system of jurisprudence.
City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. [p292] 86, 88 (1923). The present proposition
would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem
on its face, into personal criticism, and hence potential libel, of the officials of whom the government is
composed. There is no legal alchemy by which a State may thus create the cause of action that would
otherwise be denied for a publication which, as respondent himself said of the advertisement, "reflects
not only on me but on the other Commissioners and the community." Raising as it does the possibility
that a good faith critic of government will be penalized for his criticism, the proposition relied on by the
Alabama courts strikes at the very center of the constitutionally protected area of free expression. [n30]
We hold that such a proposition may not constitutionally be utilized to establish that an otherwise
impersonal attack on governmental operations was a libel of an official responsible for those operations.
Since it was relied on exclusively here, and there was no other evidence to connect the statements with
respondent, the evidence was constitutionally insufficient to support a finding that the statements
referred to respondent.
The judgment of the Supreme Court of Alabama is reversed, and the case is remanded to that court for
further proceedings not inconsistent with this opinion. Reversed and remanded. [p293]
485 U.S. 46
Hustler Magazine, Inc. v. Falwell (No. 86-1278)
Argued: December 2, 1987
Decided: February 24, 1988
Syllabus
Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity
action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to
recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the
publication of an advertisement "parody" which, among other things, portrayed respondent as having
engaged in a drunken incestuous rendezvous with his mother in an outhouse. The jury found against
respondent on the libel claim, specifically finding that the parody could not "reasonably be understood
as describing actual facts . . . or events," but ruled in his favor on the emotional distress claim, stating
that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed,
rejecting petitioners' contention that the "actual malice" standard of New York Times Co. v. Sullivan, 376
U.S. 254, must be met before respondent can recover for emotional distress. Rejecting as irrelevant the
contention that, because the jury found that the parody did not describe actual facts, the ad was an
opinion protected by the First Amendment to the Federal Constitution, the court ruled that the issue was
whether the ad's publication was sufficiently outrageous to constitute intentional infliction of emotional
distress.
Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern,
the First and Fourteenth Amendments prohibit public figures and public officials from recovering
damages for the tort of intentional infliction of emotional distress by reason of the publication of a
caricature such as the ad parody at issue without showing in addition that the publication contains a
false statement of fact which was made with "actual malice," i.e., with knowledge that the statement
was false or with reckless disregard as to whether or not it was true. The State's interest in protecting
public figures from emotional distress is not sufficient to deny First Amendment protection to speech
that is patently offensive and is intended to inflict emotional injury when that speech could not
reasonably have been interpreted as stating actual facts about the public figure involved. Here,
respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that
the ad parody was not reasonably believable must be accepted. "Outrageousness" [p47] in the area of
political and social discourse has an inherent subjectiveness about it which would allow a jury to impose
liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular
expression, and cannot, consistently with the First Amendment, form a basis for the award of damages
for conduct such as that involved here. Pp. 50-57.
797 F.2d 1270, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN,
STEVENS, O'CONNOR, and SCALIA, JJ., joined. WHITE, J., filed an opinion concurring in the judgment,
post, p. 57. KENNEDY, J., took no part in the consideration or decision of the case.
REHNQUIST, C.J., Opinion of the Court
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a
nationally known minister who has been active as a commentator on politics and public affairs, sued
petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of [p48] privacy, libel,
and intentional infliction of emotional distress. The District Court directed a verdict against respondent
on the privacy claim, and submitted the other two claims to a jury. The jury found for petitioners on the
defamation claim, but found for respondent on the claim for intentional infliction of emotional distress
and awarded damages. We now consider whether this award is consistent with the First and Fourteenth
Amendments of the United States Constitution.
The inside front cover of the November, 1983, issue of Hustler Magazine featured a "parody" of an
advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled
"Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included
interviews with various celebrities about their "first times." Although it was apparent by the end of each
interview that this meant the first time they sampled Campari, the ads clearly played on the sexual
double entendre of the general subject of "first times." Copying the form and layout of these Campari
ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with
him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother
in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and
suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom
of the page, the ad contains the disclaimer, "ad parody -- not to be taken seriously." The magazine's
table of contents also lists the ad as "Fiction; Ad and Personality Parody."
Soon after the November issue of Hustler became available to the public, respondent brought this
diversity action in the United States District Court for the Western District of Virginia against Hustler
Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that
publication of the ad parody in Hustler entitled [p49] him to recover damages for libel, invasion of
privacy, and intentional infliction of emotional distress. The case proceeded to trial. [n1] At the close of
the evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy
claim. The jury then found against respondent on the libel claim, specifically finding that the ad parody
could not "reasonably be understood as describing actual facts about [respondent] or actual events in
which [he] participated." App. to Pet. for Cert. C1. The jury ruled for respondent on the intentional
infliction of emotional distress claim, however, and stated that he should be awarded $100,000 in
compensatory damages, as well as $50,000 each in punitive damages from petitioners. [n2] Petitioners'
motion for judgment notwithstanding the verdict was denied.
On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against
petitioners. Falwell v. Flynt, 797 F.2d 1270 (1986). The court rejected petitioners' argument that the
"actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), must be met before
respondent can recover for emotional distress. The court agreed that, because respondent is concededly
a public figure, petitioners are "entitled to the same level of first amendment protection in the claim for
intentional infliction of emotional distress that they received in [respondent's] claim for libel." 797 F.2d
at 1274. But this does not mean that a literal application of the actual malice rule is appropriate in the
context of an emotional distress claim. In the court's view, the New York Times decision emphasized the
constitutional importance not of the falsity of the statement or the defendant's disregard for the truth,
but of the heightened level of culpability embodied in the requirement of "knowing . . . or reckless"
conduct. Here, the New York [p50] Times standard is satisfied by the state law requirement, and the
jury's finding, that the defendants have acted intentionally or recklessly. [n3] The Court of Appeals then
went on to reject the contention that, because the jury found that the ad parody did not describe actual
facts about respondent, the ad was an opinion that is protected by the First Amendment. As the court
put it, this was "irrelevant," as the issue is "whether [the ad's] publication was sufficiently outrageous to
constitute intentional infliction of emotional distress." Id. at 1276. [n4] Petitioners then filed a petition
for rehearing en banc, but this was denied by a divided court. Given the importance of the constitutional
issues involved, we granted certiorari. 480 U.S. 945 (1987).
This case presents us with a novel question involving First Amendment limitations upon a State's
authority to protect its citizens from the intentional infliction of emotional distress. We must decide
whether a public figure may recover damages for emotional harm caused by the publication of an ad
parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have
us find that a State's interest in protecting public figures from emotional distress is sufficient to deny
First Amendment protection to speech that is patently offensive and is intended to inflict emotional
injury, even when that speech could not reasonably have been interpreted as stating actual facts about
the public figure involved. This we decline to do.
At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of
ideas and opinions on matters of public interest and concern.
[T]he [p51] freedom to speak one's mind is not only an aspect of individual liberty -- and thus a good
unto itself -- but also is essential to the common quest for truth and the vitality of society as a whole.
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-504 (1984). We have therefore
been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally
imposed sanctions. The First Amendment recognizes no such thing as a "false" idea. Gertz v. Robert
Welch, Inc., 418 U.S. 323, 339 (1974). As Justice Holmes wrote,
when men have realized that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself
accepted in the competition of the market. . . .
Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion).
The sort of robust political debate encouraged by the First Amendment is bound to produce speech that
is critical of those who hold public office or those public figures who are
intimately involved in the resolution of important public questions or, by reason of their fame, shape
events in areas of concern to society at large.
Associated Press v. Walker, decided with Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) (Warren,
C.J., concurring in result). Justice Frankfurter put it succinctly in Baumgartner v. United States, 322 U.S.
665, 673-674 (1944), when he said that "[o]ne of the prerogatives of American citizenship is the right to
criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate;
public figures as well as public officials will be subject to "vehement, caustic, and sometimes
unpleasantly sharp attacks," New York Times, supra, at 270.
[T]he candidate who vaunts his spotless record and sterling integrity cannot convincingly cry "Foul!"
when an opponent or an industrious reporter attempts [p52] to demonstrate the contrary.
Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971).
Of course, this does not mean that any speech about a public figure is immune from sanction in the form
of damages. Since New York Times Co. v. Sullivan, 376 U.S. 254 (1964), we have consistently ruled that a
public figure may hold a speaker liable for the damage to reputation caused by publication of a
defamatory falsehood, but only if the statement was made "with knowledge that it was false or with
reckless disregard of whether it was false or not." Id. at 279-280. False statements of fact are particularly
valueless; they interfere with the truthseeking function of the marketplace of ideas, and they cause
damage to an individual's reputation that cannot easily be repaired by counterspeech, however
persuasive or effective. See Gertz, 418 U.S. at 340, 344, n. 9. But even though falsehoods have little value
in and of themselves, they are "nevertheless inevitable in free debate," id. at 340, and a rule that would
impose strict liability on a publisher for false factual assertions would have an undoubted "chilling" effect
on speech relating to public figures that does have constitutional value. "Freedoms of expression
require "breathing space."'" Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 772 (1986) (quoting
New York Times, supra, at 272). This breathing space is provided by a constitutional rule that allows
public figures to recover for libel or defamation only when they can prove both that the statement was
false and that the statement was made with the requisite level of culpability.
Respondent argues, however, that a different standard should apply in this case because, here, the State
seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who
is the subject of an offensive publication. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562
(1977) (ruling that the "actual malice" standard does not apply to the tort of appropriation of a right of
publicity). In respondent's view, and in the view of the [p53] Court of Appeals, so long as the utterance
was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional
distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it
was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest
in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this
type.
Generally speaking, the law does not regard the intent to inflict emotional distress as one which should
receive much solicitude, and it is quite understandable that most, if not all, jurisdictions have chosen to
make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of
debate about public affairs, many things done with motives that are less than admirable are protected
by the First Amendment. In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that, even when a speaker
or writer is motivated by hatred or ill-will, his expression was protected by the First Amendment:
Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in
court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed
contribute to the free interchange of ideas and the ascertainment of truth.
Id. at 73. Thus, while such a bad motive may be deemed controlling for purposes of tort liability in other
areas of the law, we think the First Amendment prohibits such a result in the area of public debate about
public figures.
Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be
subjected to damages awards without any showing that their work falsely defamed its subject. Webster's
defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by
exaggerating features or mannerisms for satirical effect." Webster's New Unabridged Twentieth [p54]
Century Dictionary of the English Language 275 (2d ed.1979). The appeal of the political cartoon or
caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events
-- an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the
cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed
the nature of the art in these words:
The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it
tries to pat some politician on the back. It is usually as welcome as a bee sting, and is always
controversial in some quarters.
Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill 56, 57 (Nov.1962). Several famous
examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably the
greatest American cartoonist to date, who was associated for many years during the post-Civil War era
with Harper's Weekly. In the pages of that publication Nast conducted a graphic vendetta against William
M. "Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been described by
one historian of the subject as "a sustained attack which in its passion and effectiveness stands alone in
the history of American graphic art." M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another
writer explains that the success of the Nast cartoon was achieved "because of the emotional impact of
its presentation. It continuously goes beyond the bounds of good taste and conventional manners." C.
Press, The Political Cartoon 251 (1981).
Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass
down to the present day, graphic depictions and satirical cartoons have played a prominent role in public
and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of
Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal [p55]
Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and
outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and
teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political
cartoons with an effect that could not have been obtained by the photographer or the portrait artist.
From the viewpoint of history, it is clear that our political discourse would have been considerably
poorer without them.
Respondent contends, however, that the caricature in question here was so "outrageous" as to
distinguish it from more traditional political cartoons. There is no doubt that the caricature of
respondent and his mother published in Hustler is at best a distant cousin of the political cartoons
described above, and a rather poor relation at that. If it were possible by laying down a principled
standard to separate the one from the other, public discourse would probably suffer little or no harm.
But we doubt that there is any such standard, and we are quite sure that the pejorative description
"outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an
inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors'
tastes or views, or perhaps on the basis of their dislike of a particular expression. An "outrageousness"
standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the
speech in question may have an adverse emotional impact on the audience. See NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 910 (1982) ("Speech does not lose its protected character . . . simply
because it may embarrass others or coerce them into action"). And, as we stated in FCC v. Pacifica
Foundation, 438 U.S. 726 (1978):
[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it
is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional
protection. [p56] For it is a central tenet of the First Amendment that the government must remain
neutral in the marketplace of ideas.
Id. at 745-746. See also Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly settled that . . . the
public expression of ideas may not be prohibited merely because the ideas are themselves offensive to
some of their hearers").
Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to
limitations. We recognized in Pacifica Foundation that speech that is "vulgar,' offensive,' and shocking'"
is "not entitled to absolute constitutional protection under all circumstances." 438 U.S. at 747. In
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), we held that a State could lawfully punish an
individual for the use of insulting "fighting' words -- those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace." Id. at 571-572. These limitations are but recognition of
the observation in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985), that this
Court has "long recognized that not all speech is of equal First Amendment importance." But the sort of
expression involved in this case does not seem to us to be governed by any exception to the general First
Amendment principles stated above.
We conclude that public figures and public officials may not recover for the tort of intentional infliction
of emotional distress by reason of publications such as the one here at issue without showing, in
addition, that the publication contains a false statement of fact which was made with "actual malice,"
i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was
true. This is not merely a "blind application" of the New York Times standard, see Time, Inc. v. Hill, 385
U.S. 374, 390 (1967); it reflects our considered judgment that such a standard is necessary to give
adequate "breathing space" to the freedoms protected by the First Amendment. [p57]
Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. [n5] The
jury found against respondent on his libel claim when it decided that the Hustler ad parody could not
"reasonably be understood as describing actual facts about [respondent] or actual events in which [he]
participated." App. to Pet. for Cert. C1. The Court of Appeals interpreted the jury's finding to be that the
ad parody "was not reasonably believable," 797 F.2d at 1278, and, in accordance with our custom, we
accept this finding. Respondent is thus relegated to his claim for damages awarded by the jury for the
intentional infliction of emotional distress by "outrageous" conduct. But, for reasons heretofore stated,
this claim cannot, consistently with the First Amendment, form a basis for the award of damages when
the conduct in question is the publication of a caricature such as the ad parody involved here. The
judgment of the Court of Appeals is accordingly
Reversed. JUSTICE KENNEDY took no part in the consideration or decision of this case.
[G.R. No. 118971. September 15, 1999]
RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL TRIAL COURT OF MANILA,
BRANCH 40, and THE PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N: MENDOZA, J.:
The question for determination in this case is the liability for libel of a citizen who denounces a barangay
official for misconduct in office. The Regional Trial Court of Manila, Branch 40, found petitioner guilty
and fined him P1,000.00 on the ground that petitioner failed to prove the truth of the charges and that
he was motivated by vengeance in uttering the defamatory statement. On appeal, the Court of Appeals,
in a decision[1] dated February 1, 1995, affirmed. Hence, this petition for review. The decision appealed
from should be reversed.
The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore Area.
Sometime in April 1986, he and some 37 families from the area went to see then National Housing
Authority (NHA) General Manager Lito Atienza regarding their complaint against their Barangay
Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA officials, petitioner and his
companions were met and interviewed by newspaper reporters at the NHA compound concerning their
complaint. The next day, April 22, 1986, the following news article[2] appeared in the newspaper Ang
Tinig ng Masa:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo Foreshore
Area na umanoy inagawan ng lupa ng kanilang barangay chairman sa pakikipagsabwatan sa ilang pinuno
ng National Housing Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6, Tondo
Foreshore Area, sa mga project manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na umaabot lang sa
487.87 metro kuwadrado ang kabuuan ng mga lupa na kinatitirikan ng mga barung-barung ng 38
pamilya.
Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga survey ng NHA noong
nakalipas na taon na may karapatan kami sa mga lupang ito ng pamahalaan, ani Vasquez.
Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS Minister Conrado
Benitez, at ilang pinuno ng pulisya ang barangay chairman kaya nakalusot ang mga ginawa nitong
katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal na
pasugalan sa naturang lugar at maging sa mga nakawan ng manok.
Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang saysay
ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo sa
pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.
Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that the
latters statements cast aspersions on him and damaged his reputation. After conducting preliminary
investigation, the city prosecutor filed the following information in the Regional Trial Court of Manila,
Branch 40:
The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as follows:
That on or about April 22, 1986, in the city of Manila, Philippines, the said accused, with malicious intent
of impeaching the reputation and character of one Jaime Olmedo, chairman of Barangay 66, Zone 6 in
Tondo, Manila, and with evident intent of exposing him to public hatred, contempt, ridicule, did then
and there willfully, unlawfully, feloniously and maliciously caused the publication of an article entitled 38
Pamilya Inagawan ng Lupa in Ang Tinig ng Masa, a daily newspaper sold to the public and of general
circulation in the Philippines in its April 22, 1986 issue, which portion of the said article reads as follows:
Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo Foreshore
Area na umanoy inagawan ng lupa ng kanilang barangay chairman sa pakikipagsabwatan sa ilang pinuno
ng National Housing Authority sapul 1980.
Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6, Tondo
Foreshore Area sa mga project manager ng NHA upang makamkam ang may 14 na lote ng lupa sa
naturang lugar.
x x x Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi ni Vasquez.
Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS Minister Conrado
Benitez, at ilang pinuno ng pulisya ang barangay chairman kaya nakalusot ang mga ginawa nitong
katiwalian.
Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal na
pasugalan sa naturang lugar at maging sa mga nakawan ng manok. x x x
with which statements, the said accused meant and intended to convey, as in fact he did mean and
convey false and malicious imputations that said Jaime Olmedo is engaged in landgrabbing and involved
in illegal gambling and stealing of chickens at the Tondo Foreshore Area, Tondo, Manila, which
statements, as he well knew, were entirely false and malicious, offensive and derogatory to the good
name, character and reputation of said Jaime Olmedo, thereby tending to impeach, besmirch and
destroy the honor, character and reputation of Jaime Olmedo, as in fact, the latter was exposed to
dishonor, discredit, public hatred, contempt and ridicule.
Contrary to law.
Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was tried. The
prosecution presented Barangay Chairman Olmedo and his neighbor, Florentina Calayag, as witnesses.
On the other hand, the defense presented Ciriaco Cabuhat, Nicasio Agustin, Estrelita Felix, Fernando
Rodriguez all residents of the Tondo Foreshore Area and petitioner as its witnesses.
On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel and sentencing him
to pay a fine of P1,000.00. On appeal, the Court of Appeals affirmed in toto. Hence, this petition for
review. Petitioner contends that
I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT PINPOINTING
PETITIONER AS THE SOURCE OF THE ALLEGED LIBELOUS ARTICLE.
II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT THAT PETITIONER
IMPUTED THE QUESTIONED ACTS TO COMPLAINANT.
III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT THAT THE
ALLEGED IMPUTATIONS WERE MADE MALICIOUSLY.
IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT WHICH FAILED TO
APPRECIATE PETITIONERS DEFENSE OF TRUTH.
V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT THAT ALL THE
ELEMENTS OF LIBEL WERE PROVEN.
We will deal with these contentions in the order in which they are made.
First. Petitioner claims he was unfairly singled out as the source of the statements in the article when any
member of the 38 complainant-families could have been the source of the alleged libelous
statements.[3] The reference is to the following portion of the decision of the Court of Appeals:
. . . In his sworn statement, appellant admitted he was the source of the libelous article (Exh. B). He
affirmed this fact when he testified in open court as follows: That his allegation on the act of
landgrabbing by Olmedo was based on the alleged report and pronouncements of the NHA
representatives (p. 5, tsn, Oct. 18, 1989); that said allegations were made by him before the local press
people in the pursuit of fairness and truthfulness and not in bad faith (pp. 8-9, id.); that the only
inaccurate account in the published article of Ang Tinig ng Masa is the reference to the 487.87 sq.m. lot,
on which Olmedos residence now stands, attributed by the reporter as the lot currently occupied by
appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp. 4-5, tsn, January 15, 1990); and
that after the interview, he never expected that his statement would be the cause of the much-
publicized libelous article (pp. 4-6, tsn, Nov. 15, 1989).[4]
It is true petitioner did not directly admit that he was the source of the statements in the questioned
article. What he said in his sworn statement[5] was that the contents of the article are true in almost all
respects, thus:
9. Tama ang nakalathala sa pahayagang Ang Masa maliban na lang sa tinutukoy na ako at ang mga
kasamahang maralitang taga-lungsod ay nakatira sa humigit kumulang 487.87 square meters sapagkat
ang nabanggit na 487.87 square meters ay siyang kinatitirikan ng bahay ni Barangay Chairman Olmedo
kung saan nakaloob ang anim na lote - isang paglabag sa batas o regulasyon ng NHA;
10. Ang ginawa kong pahayag na nailathala sa Ang Masa ay sanhi ng aking nais na maging mabuting
mamamayan at upang maituwid ang mga katiwaliang nagaganap sa Tondo Foreshore Area kung saan ako
at sampu ng aking mga kasamang maralitang taga-lungsod ay apektado at naaapi.
This was likewise what he stated in his testimony in court both on direct[6] and on cross-examination.[7]
However, by claiming that what he had told the reporter was made by him in the performance of a civic
duty, petitioner in effect admitted authorship of the article and not only of the statements attributed to
him therein, to wit:
Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa
pakikipagsabwatan sa mga project manager at legal officers ng NHA, sabi ni Vasquez.
. . . .Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang
saysay ang lahat ng iyon, kabilang na ang tangkang pagpatay sa akin kaugnay ng pagrereklamo sa
pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.
Petitioner cannot claim to have been the source of only a few statements in the article in question and
point to the other parties as the source of the rest, when he admits that he was correctly identified as
the spokesperson of the families during the interview.
Second. Petitioner points out that the information did not set out the entire news article as published. In
fact, the second statement attributed to petitioner was not included in the information. But, while the
general rule is that the information must set out the particular defamatory words verbatim and as
published and that a statement of their substance is insufficient,[8] United States v. Eguia, 38 Phil. 857
(1918).8 a defect in this regard may be cured by evidence.[9] In this case, the article was presented in
evidence, but petitioner failed to object to its introduction. Instead, he engaged in the trial of the entire
article, not only of the portions quoted in the information, and sought to prove it to be true. In doing so,
he waived objection based on the defect in the information. Consequently, he cannot raise this issue at
this late stage.[10]
Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he said was
true and was made with good motives and for justifiable ends.
To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements must be
proved: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the
charge; (c) identity of the person defamed; and (d) existence of malice.[11]
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the
possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of
one who is dead.[12]
There is publication if the material is communicated to a third person.[13] It is not required that the
person defamed has read or heard about the libelous remark. What is material is that a third person has
read or heard the libelous statement, for a mans reputation is the estimate in which others hold him, not
the good opinion which he has of himself.[14]
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person
or a stranger was able to identify him as the object of the defamatory statement.[15]
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:
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
security 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.
In this case, there is no doubt that the first three elements are present. The statements that Olmedo,
through connivance with NHA officials, was able to obtain title to several lots in the area and that he was
involved in a number of illegal activities (attempted murder, gambling and theft of fighting cocks) were
clearly defamatory. There is no merit in his contention that landgrabbing, as charged in the information,
has a technical meaning in law.[16] Such act is so alleged and proven in this case in the popular sense in
which it is understood by ordinary people. As held in United States v. Sotto:[17]
. . . [F]or the purpose of determining the meaning of any publication alleged to be libelous that
construction must be adopted which will give to the matter such a meaning as is natural and obvious in
the plain and ordinary sense in which the public would naturally understand what was uttered. The
published matter alleged to be libelous must be construed as a whole. In applying these rules to the
language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the
publisher on being called to account. The whole question being the effect the publication had upon the
minds of the readers, and they not having been assisted by the offered explanation in reading the article,
it comes too late to have the effect of removing the sting, if any there be, from the words used in the
publication.

Nor is there any doubt that the defamatory remarks referred to complainant and were published.
Petitioner caused the publication of the defamatory remarks when he made the statements to the
reporters who interviewed him.[18]
The question is whether from the fact that the statements were defamatory, malice can be presumed so
that it was incumbent upon petitioner to overcome such presumption. Under Art. 361 of the Revised
Penal Code, if the defamatory statement is made against a public official with respect to the discharge of
his official duties and functions and the truth of the allegation is shown, the accused will be entitled to
an acquittal even though he does not prove that the imputation was published with good motives and
for justifiable ends.[19]
In this case, contrary to the findings of the trial court, on which the Court of Appeals relied, petitioner
was able to prove the truth of his charges against the barangay official. His allegation that, through
connivance with NHA officials, complainant was able to obtain title to several lots at the Tondo
Foreshore Area was based on the letter[20] of NHA Inspector General Hermogenes Fernandez to
petitioners counsel which reads:
09 August 1983
Atty. Rene V. Sarmiento
Free Legal Assistance Group (FLAG)
55 Third Street
New Manila, Quezon City
Dear Atty. Sarmiento:
In connection with your request that you be furnished with a copy of the results of the investigation
regarding the complaints of some Tondo residents against Chairman Jaime Olmedo, we are providing
you a summary of the findings based on the investigation conducted by our Office which are as follows:
1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedos present structure is
constructed on six lots which were awarded before by the defunct Land Tenure Administration to
different persons as follows:
Lot 4 - Juana Buenaventura - 79.76 sq. m.
Lot 6 - Servando Simbulan - 48.50 sq. m.
Lot 7 - Alfredo Vasquez - 78.07 sq. m.
Lot 8 - Martin Gallardo - 78.13 sq. m.
Lot 9 - Daniel Bayan - 70.87 sq. m.
Lot 1 - Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)
The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus sold the said lot to a
certain Jovita Bercasi, a sister-in-law of Jaime Olmedo. The other remaining lots were either sold to Mr.
Olmedo and/or to his immediate relatives.
Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo, with an area of 47.40
sq. m.
The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.
2. Block 261, SB 8, Area III
Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A four-door
apartment owned by Mr. Olmedo is being rented to uncensused residents.
3. Block 262, SB 8, Area III
Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not yet titled.
4. Block 256, SB 5, Area III
Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected on a non-titled lot.
The adjacent lot is titled in the name of Victoria. It was issued OCT No. 10217 with an area of 202.23 sq.
m. Inside this compound is another structure owned and occupied by Amelia Dofredo, a censused
houseowner. The titled lot of Victoria now has an area of 338.20 sq. m.
For your information.
(s/t) HERMOGENES C. FERNANDEZ
Inspector General
Public Assistance & Action Office
In addition, petitioner acted on the basis of two memoranda,[21] both dated November 29, 1983, of
then NHA General Manager Gaudencio Tobias recommending the filing of administrative charges against
the NHA officials responsible for the alleged irregular consolidation of lots [in Tondo to Jaime and
Victoria Olmedo.]
With regard to the other imputations made by petitioner against complainant, it must be noted that
what petitioner stated was that various charges (for attempted murder against petitioner, gambling,
theft of fighting cocks) had been filed by the residents against their barangay chairman but these had all
been dismissed. Petitioner was able to show that Olmedos involvement in the theft of fighting cocks was
the subject of an affidavit-complaint,[22] dated October 19, 1983, signed by Fernando Rodriguez and
Ben Lareza, former barangay tanods of Barangay 66, Zone 6, Tondo. Likewise, petitioner presented a
resolution,[23] dated March 10, 1988, of the Office of the Special Prosecutor in TBP-87-03694, stating
that charges of malversation and corrupt practices had been filed against Olmedo and nine (9) other
barangay officials but the same were dismissed. Indeed, the prosecutions own evidence bears out
petitioners statements. The prosecution presented the resolution[24]in TBP Case No. 84-01854
dismissing the charge of attempted murder filed by petitioner against Jaime Olmedo and his son-in-law,
Jaime Reyes. The allegation concerning this matter is thus true.
It was error for the trial court to hold that petitioner only tried to prove that the complainant [barangay
chairman] is guilty of the crimes alluded to; accused, however, has not proven that the complainant
committed the crimes. For that is not what petitioner said as reported in the Ang Tinig ng Masa. The fact
that charges had been filed against the barangay official, not the truth of such charges, was the issue.
In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo
Foreshore Area were not only acting in their self-interest but engaging in the performance of a civic duty
to see to it that public duty is discharged faithfully and well by those on whom such duty is incumbent.
The recognition of this right and duty of every citizen in a democracy is inconsistent with any
requirement placing on him the burden of proving that he acted with good motives and for justifiable
ends.
For that matter, even if the defamatory statement is false, no liability can attach if it relates to official
conduct, unless the public official concerned proves that the 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. This is
the gist of the ruling in the landmark case of New York Times v. Sullivan,[25] which this Court has cited
with approval in several of its own decisions.[26] This is the rule of actual malice. In this case, the
prosecution failed to prove not only that the charges made by petitioner were false but also that
petitioner made them with knowledge of their falsity or with reckless disregard of whether they were
false or not.
A rule placing on the accused the burden of showing the truth of allegations of official misconduct
and/or good motives and justifiable ends for making such allegations would not only be contrary to Art.
361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom
of expression. Such a rule would deter citizens from performing their duties as members of a self-
governing community. Without free speech and assembly, discussions of our most abiding concerns as a
nation would be stifled. As Justice Brandeis has said, public discussion is a political duty and the greatest
menace to freedom is an inert people.[27]
Complainant contends that petitioner was actuated by vengeful political motive rather than by his firm
conviction that he and his fellow residents had been deprived of a property right because of acts
attributable to their barangay chairman. The Court of Appeals, sustaining complainants contention, held:
That the said imputations were malicious may be inferred from the facts that appellant and complainant
are enemies, hence, accused was motivated by vengeance in uttering said defamatory statements and
that accused is a leader of Ciriaco Cabuhat who was defeated by complainant when they ran for the
position of barangay captain. . . .[28]
As already stated, however, in accordance with Art. 361, if the defamatory matter either constitutes a
crime or concerns the performance of official duties, and the accused proves the truth of his charge, he
should be acquitted.[29]
Instead of the claim that petitioner was politically motivated in making the charges against complainant,
it would appear that complainant filed this case to harass petitioner. Art. 360 of the Revised Penal Code
provides:
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. . . .
Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was charged in court.
What was said in an analogous case[30] may be applied mutatis mutandis to the case at bar:
It is curious that the ones most obviously responsible for the publication of the allegedly offensive news
report, namely, the editorial staff and the periodical itself, were not at all impleaded. The charge was
leveled against the petitioner and, curiouser still, his clients who have nothing to do with the editorial
policies of the newspaper. There is here a manifest effort to persecute and intimidate the petitioner for
his temerity in accusing the ASAC agents who apparently enjoyed special privilegesand perhaps also
immunitiesduring those oppressive times. The non-inclusion of the periodicals was a transparent
hypocrisy, an ostensibly pious if not at all convincing pretense of respect for freedom of expression that
was in fact one of the most desecrated liberties during the past despotism.[31]
WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is ACQUITTED of the
crime charged. SO ORDERED.
EN BANC: G.R. No. L-63559 May 30, 1986
NEWSWEEK, INC., petitioner,
vs.
THE INTERMEDIATE APPELLATE COURT, and NATIONAL FEDERATION OF SUGARCANE PLANTERS INC.,
BINALBAGAN-ISABELA PLANTERS ASSOCIATION, INC., ASOCIACION DE AGRICULTORES DE LA CARLOTA,
LA CASTELLANA y PONTEVEDRA, INC., DONEDCO PLANTERS ASSOCIATION INC., ARMANDO GUSTILO,
ENRIQUE ROJAS, ALFREDO MONTELIBANO, JR., PABLO SOLA, JOSE MONTALVO, VICENTE GUSTILO,
JOSEPH MARANON, ROBERTO CUENCA, JOSE SICANGCO, FLORENCIO ALONSO, MIGUEL GATUSLAO,
PEDRO YULO, MARINO RUBIN and BENJAMIN BAUTISTA, respondents.
San Juan, Africa, Gonzales & San Agustin Law Offices for private respondents.
FERIA, J.:
Petitioner, Newsweek, Inc., a foreign corporation licensed to do business in the Philippines, in this special
action for certiorari, prohibition with preliminary injunction, seeks to annul the decision of the
Intermediate Appellate Court dated December 17, 1982 sustaining the Order of the then Court of First
Instance of Bacolod City which denied petitioner's Motion to Dismiss the complaint for libel filed by
private respondents (Civil Case No. 15812), and the Resolution dated March 10, 1983 which denied its
Motion for Reconsideration.
It appears that on March 5, 1981, private respondents, incorporated associations of sugarcane planters
in Negros Occidental claiming to have 8,500 members and several individual sugar planters, filed Civil
Case No. 15812 in their own behalf and/or as a class suit in behalf of all sugarcane planters in the
province of Negros Occidental, against petitioner and two of petitioners' non-resident
correspondents/reporters Fred Bruning and Barry Came. The complaint alleged that petitioner and the
other defendants committed libel against them by the publication of the article "An Island of Fear" in the
February 23, 1981 issue of petitioner's weekly news magazine Newsweek. The article supposedly
portrayed the island province of Negros Occidental as a place dominated by big landowners or sugarcane
planters who not only exploited the impoverished and underpaid sugarcane workers/laborers, but also
brutalized and killed them with imprunity. Complainants therein alleged that said article, taken as a
whole, showed a deliberate and malicious use of falsehood, slanted presentation and/or
misrepresentation of facts intended to put them (sugarcane planters) in bad light, expose them to public
ridicule, discredit and humiliation here in the Philippines and abroad, and make them objects of hatred,
contempt and hostility of their agricultural workers and of the public in general. They prayed that
defendants be ordered to pay them PlM as actual and compensatory damages, and such amounts for
moral, exemplary and corrective damages as the court may determine, plus expenses of litigation,
attorney's fees and costs of suit. A photo copy of the article was attached to the complaint.
On November 5, 1981, petitioner filed a motion to dismiss on the grounds that (1) the printed article
sued upon is not actionable in fact and in law; and (2) the complaint is bereft of allegations that state,
much less support a cause of action. It pointed out the non-libelous nature of the article and,
consequently, the failure of the complaint to state a cause of action. Private respondents filed an
Opposition to the motion to dismiss and petitioner filed a reply.
On March 17, 1982, the trial court denied the motion to dismiss, stating that the grounds on which the
motion to dismiss are predicated are not indubitable as the complaint on its face states a valid cause of
action; and the question as to whether the printed article sued upon its actionable or not is a matter of
evidence. Petitioner's motion for reconsideration was denied on May 28, 1982.
On June 18, 1982, petitioner filed a petition for certiorari with respondent Court (CA-G. R. No. 14406)
seeking the annulment of the aforecited trial court's Orders for having been issued with such a grave
abuse of discretion as amounting to lack of jurisdiction and praying for the dismissal of the complaint for
failure to state a cause of action.
As earlier stated, respondent Court affirmed the trial court's Orders in a Decision dated December 17,
1982 and ordered the case to be tried on the merits on the grounds that -(1) the complaint contains
allegations of fact which called for the presentation of evidence; and (2) certiorari under Rule 65 cannot
be made to substitute for an appeal where an appeal would lie at a proper time. Subsequently, on March
10, 1983, the respondent Court denied petitioner's Motion for Reconsideration of the aforesaid decision,
hence this petition.
The proper remedy which petitioner should have taken from the decision of respondent Court is an
appeal by certiorari under Rule 45 of the Rules of Court and not the special civil action of certiorari and
prohibition under Rule 65 of said Rules. However, since the petition was filed on time within fifteen days
from notice of the Resolution denying the motion for reconsideration, we shall treat the same as a
petition for review on certiorari. The two (2) issues raised in the petition are: (1) whether or not the
private respondents' complaint failed to state a cause of action; and (2) whether or not the petition for
certiorari and prohibition is proper to question the denial of a motion to dismiss for failure to state a
cause of action.
First, petitioner argues that private respondents' complaint failed to state a cause of action because the
complaint made no allegation that anything contained in the article complained of regarding sugarcane
planters referred specifically to any one of the private respondents; that libel can be committed only
against individual reputation; and that in cases where libel is claimed to have been directed at a group,
there is actionable defamation only if the libel can be said to reach beyond the mere collectivity to do
damage to a specific, individual group member's reputation.
We agree with petitioner.
In the case of Corpus vs. Cuaderno, Sr. (16 SCRA 807) this Court ruled that "in order to maintain a libel
suit, it is essential that the victim be identifiable (People vs. Monton, L-16772, November 30, 1962),
although it is not necessary that he be named (19 A.L.R. 116)." In an earlier case, this Court declared
that" ... defamatory matter which does not reveal the Identity of the person upon whom the imputation
is cast, affords no ground of action unless it be shown that the readers of the libel could have Identified
the personality of the individual defamed." (Kunkle vs. Cablenews-American and Lyons 42 Phil. 760).
This principle has been recognized to be of vital importance, especially where a group or class of
persons, as in the case at bar, claim to have been defamed, for it is evident that the larger the
collectivity, the more difficult it is for the individual member to prove that the defamatory remarks apply
to him. (Cf. 70 ALR 2d. 1384).
In the case of Uy Tioco vs. Yang Shu Wen , 32 Phil. 624, this Court held as follows:
Defamatory remarks directed at a class or group of persons in general language only, are not actionable
by individuals composing the class or group unless the statements are sweeping; and it is very probable
that even then no action would lie where the body is composed of so large a number of persons that
common sense would tell those to whom the publication was made that there was room for persons
connected with the body to pursue an upright and law abiding course and that it would be unreasonable
and absurd to condemn all because of the actions of a part. (supra p. 628).
It is evident from the above ruling that where the defamation is alleged to have been directed at a group
or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently specific so that each individual in the class or group can
prove that the defamatory statement specifically pointed to him, so that he can bring the action
separately, if need be.
We note that private respondents filed a "class suit" in representation of all the 8,500 sugarcane planters
of Negros Occidental. Petitioner disagrees and argues that the absence of any actionable basis in the
complaint cannot be cured by the filing of a class suit on behalf of the aforesaid sugar planters.
We find petitioner's contention meritorious.
The case at bar is not a class suit. It is not a case where one or more may sue for the benefit of all
(Mathay vs. Consolidated Bank and Trust Company, 58 SCRA 559) or where the representation of class
interest affected by the judgment or decree is indispensable to make each member of the class an actual
party (Borlaza vs. Polistico, 47 Phil. 348). We have here a case where each of the plaintiffs has a separate
and distinct reputation in the community. They do not have a common or general interest in the subject
matter of the controversy.
The disputed portion of the article which refers to plaintiff Sola and which was claimed to be libelous
never singled out plaintiff Sola as a sugar planter. The news report merely stated that the victim had
been arrested by members of a special police unit brought into the area by Pablo Sola, the mayor of
Kabankalan. Hence, the report, referring as it does to an official act performed by an elective public
official, is within the realm of privilege and protected by the constitutional guarantees of free speech and
press.
The article further stated that Sola and the commander of the special police unit were arrested. The
Court takes judicial notice of this fact. (People vs. Sola, 103 SCRA 393.)
The second issue to be resolved here is whether or not the special civil action of certiorari or prohibition
is available to petitioner whose motion to dismiss the complaint and subsequent motion for
reconsideration were denied.
As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of
appeal until final judgment or order is rendered. (Sec. 2 of Rule 4 1). The ordinary procedure to be
followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on
appeal from the final judgment. The same rule applies to an order denying a motion to quash, except
that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal.
This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion
to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or
prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the
ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not
the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with
grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary
remedy of appeal cannot be plain and adequate. The following are a few examples of the exceptions to
the general rule.
In De Jesus vs. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of jurisdiction
over the subject matter, this Court granted the petition for certiorari and prohibition against the City
Court of Manila and directed the respondent court to dismiss the case.
In Lopez vs. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of jurisdiction
over the offense, this Court granted the petition for prohibition and enjoined the respondent court from
further proceeding in the case.
In Enriquez vs. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper
venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking
cognizance of the case except to dismiss the same.
In Manalo vs. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior
judgment, this Court granted the petition for certiorari and directed the respondent judge to dismiss the
case.
In Yuviengco vs. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute
of Frauds, this Court granted the petition for certiorari and dismissed the amended complaint.
In Tacas vs. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash
based on double jeopardy was denied by respondent judge and ordered him to desist from further
action in the criminal case except to dismiss the same.
In People vs. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set
aside on certiorari and the criminal case was dismissed by this Court.
Respondent Court correctly stated the general rule and its exceptions. However, it ruled that none of the
exceptions is present in the case at bar and that the case appears complex and complicated,
necessitating a full-blown trial to get to the bottom of the controversy.
Petitioner's motion to dismiss is based on the ground that the complaint states no cause of action
against it by pointing out the non-libelous nature of the article sued upon. There is no need of a trial in
view of the conclusion of this Court that the article in question is not libelous. The specific allegation in
the complaint, to the effect that the article attributed to the sugarcane planters the deaths and
brutalization of sugarcane workers, is not borne out by a perusal of the actual text.
The complaint contains a recital of the favorable working conditions of the agricultural workers in the
sugar industry and the various foundations and programs supported by planters' associations for the
benefit of their workers. Undoubtedly, the statements in the article in question are sweeping and
exaggerated; but, paraphrasing the ruling in the Uy Tioco case above quoted, it would be unreasonable
and absurd to condemn the majority of the sugarcane planters, who have at heart the welfare of their
workers, because of the actions of a part. Nonetheless, articles such as the one in question may also
serve to prick the consciences of those who have but are not doing anything or enough for those who do
not have.

On the other hand, petitioner would do well to heed the admonition of the President to media that they
should check the sources of their information to ensure the publication of the truth. Freedom of the
press, like all freedoms, should be exercised with responsibility.
WHEREFORE, the decision of the Intermediate Appellate Court is reversed and the complaint in Civil Case
No. 15812 of the Court of First Instance of Negros Occidental is dismissed, without pronouncement as to
costs. SO ORDERED.
G.R. No. 135306 January 28, 2003
MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR.,
petitioners,
vs.ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P.
ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue
writing it.
Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press
liberties that belong as well, if not more, to those who question, who do not conform, who differ. For the
ultimate good which we all strive to achieve for ourselves and our posterity can better be reached by a
free exchange of ideas, where the best test of truth is the power of the thought to get itself accepted in
the competition of the free market not just the ideas we desire, but including those thoughts we
despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than seventy (70)
Muslim religious organizations, and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P.
ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, filed in the Regional
Trial Court of Manila a complaint for damages in their own behalf and as a class suit in behalf of the
Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA
and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a
daily tabloid. The article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila
ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."
The complaint alleged that the libelous statement was insulting and damaging to the Muslims; that these
words alluding to the pig as the God of the Muslims was not only published out of sheer ignorance but
with intent to hurt the feelings, cast insult and disparage the Muslims and Islam, as a religion in this
country, in violation of law, public policy, good morals and human relations; that on account of these
libelous words Bulgar insulted not only the Muslims in the Philippines but the entire Muslim world,
especially every Muslim individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended that the article
did not mention respondents as the object of the article and therefore were not entitled to damages;
and, that the article was merely an expression of belief or opinion and was published without malice nor
intention to cause damage, prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to establish
their cause of action since the persons allegedly defamed by the article were not specifically identified
It must be noted that the persons allegedly defamed, the herein plaintiffs, were not identified with
specificity. The subject article was directed at the Muslims without mentioning or identifying the herein
plaintiffs x x x. It is thus apparent that the alleged libelous article refers to the larger collectivity of
Muslims for which the readers of the libel could not readily identify the personalities of the persons
defamed. Hence, it is difficult for an individual Muslim member to prove that the defamatory remarks
apply to him. The evidence presented in this case failed to convince this court that, indeed, the
defamatory remarks really applied to the herein plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It opined that it was
"clear from the disputed article that the defamation was directed to all adherents of the Islamic faith. It
stated that pigs were sacred and idolized as god by members of the Muslim religion. This libelous
imputation undeniably applied to the plaintiff-appellants who are Muslims sharing the same religious
beliefs." It added that the suit for damages was a "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC.'s religious status as a Muslim umbrella organization gave it the requisite personality to
sue and protect the interests of all Muslims.4
Hence, the instant petition for review assailing the findings of the appellate court (a) on the existence of
the elements of libel, (b) the right of respondents to institute the class suit, and, (c) the liability of
petitioners for moral damages, exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or
reputation through false and malicious statements.5 It is that which tends to injure reputation or to
diminish the esteem, respect, good will or confidence in the plaintiff or to excite derogatory feelings or
opinions about the plaintiff.6 It is the publication of anything which is injurious to the good name or
reputation of another or tends to bring him into disrepute.7 Defamation is an invasion of a relational
interest since it involves the opinion which others in the community may have, or tend to have, of the
plaintiff.8
It must be stressed that words which are merely insulting are not actionable as libel or slander per se,
and mere words of general abuse however opprobrious, ill-natured, or vexatious, whether written or
spoken, do not constitute a basis for an action for defamation in the absence of an allegation for special
damages.9 The fact that the language is offensive to the plaintiff does not make it actionable by itself.10
Declarations made about a large class of people cannot be interpreted to advert to an identified or
identifiable individual. Absent circumstances specifically pointing or alluding to a particular member of a
class, no member of such class has a right of action11 without at all impairing the equally demanding
right of free speech and expression, as well as of the press, under the Bill of Rights.12 Thus, in
Newsweek, Inc. v. Intermediate Appellate Court,13 we dismissed a complaint for libel against Newsweek,
Inc., on the ground that private respondents failed to state a cause of action since they made no
allegation in the complaint that anything contained in the article complained of specifically referred to
any of them. Private respondents, incorporated associations of sugarcane planters in Negros Occidental
claiming to have 8,500 members and several individual members, filed a class action suit for damages in
behalf of all sugarcane planters in Negros Occidental. The complaint filed in the Court of First Instance of
Bacolod City alleged that Newsweek, Inc., committed libel against them by the publication of the article
"Island of Fear" in its weekly newsmagazine allegedly depicting Negros Province as a place dominated by
wealthy landowners and sugar planters who not only exploited the impoverished and underpaid
sugarcane workers but also brutalized and killed them with impunity. Private respondents alleged that
the article showed a deliberate and malicious use of falsehood, slanted presentation and/or
misrepresentation of facts intended to put the sugarcane planters in a bad light, expose them to public
ridicule, discredit and humiliation in the Philippines and abroad, and make them the objects of hatred,
contempt and hostility of their agricultural workers and of the public in general. We ratiocinated
x x x where the defamation is alleged to have been directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or
sufficiently specific so that each individual in the class or group can prove that the defamatory statement
specifically pointed to him, so that he can bring the action separately, if need be x x x x The case at bar is
not a class suit. It is not a case where one or more may sue for the benefit of all, or where the
representation of class interest affected by the judgment or decree is indispensable to make each
member of the class an actual party. We have here a case where each of the plaintiffs has a separate and
distinct reputation in the community. They do not have a common or general interest in the subject
matter of the controversy.
In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar
article. Since the persons allegedly defamed could not be identifiable, private respondents have no
individual causes of action; hence, they cannot sue for a class allegedly disparaged. Private respondents
must have a cause of action in common with the class to which they belong to in order for the case to
prosper.
An individual Muslim has a reputation that is personal, separate and distinct in the community. Each
Muslim, as part of the larger Muslim community in the Philippines of over five (5) million people, belongs
to a different trade and profession; each has a varying interest and a divergent political and religious
view some may be conservative, others liberal. A Muslim may find the article dishonorable, even
blasphemous; others may find it as an opportunity to strengthen their faith and educate the non-
believers and the "infidels." There is no injury to the reputation of the individual Muslims who constitute
this community that can give rise to an action for group libel. Each reputation is personal in character to
every person. Together, the Muslims do not have a single common reputation that will give them a
common or general interest in the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company,14 the United States Court of Appeals held that one
guiding principle of group libel is that defamation of a large group does not give rise to a cause of action
on the part of an individual unless it can be shown that he is the target of the defamatory matter.
The rule on libel has been restrictive. In an American case,15 a person had allegedly committed libel
against all persons of the Jewish religion. The Court held that there could be no libel against an extensive
community in common law. In an English case, where libel consisted of allegations of immorality in a
Catholic nunnery, the Court considered that if the libel were on the whole Roman Catholic Church
generally, then the defendant must be absolved.16 With regard to the largest sectors in society,
including religious groups, it may be generally concluded that no criminal action at the behest of the
state, or civil action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were defamed
by the airing of a national television broadcast of a film depicting the public execution of a Saudi Arabian
princess accused of adultery, and alleging that such film was "insulting and defamatory" to the Islamic
religion.17 The United States District Court of the Northern District of California concluded that the
plaintiffs' prayer for $20 Billion in damages arising from "an international conspiracy to insult, ridicule,
discredit and abuse followers of Islam throughout the world, Arabs and the Kingdom of Saudi Arabia"
bordered on the "frivolous," ruling that the plaintiffs had failed to demonstrate an actionable claim for
defamation. The California Court stressed that the aim of the law on defamation was to protect
individuals; a group may be sufficiently large that a statement concerning it could not defame individual
group members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"19 discusses the
inappropriateness of any action for tortious libel involving large groups, and provides a succinct
illustration:
There are groupings which may be finite enough so that a description of the body is a description of the
members. Here the problem is merely one of evaluation. Is the description of the member implicit in the
description of the body, or is there a possibility that a description of the body may consist of a variety of
persons, those included within the charge, and those excluded from it?
A general charge that the lawyers in the city are shysters would obviously not be a charge that all of the
lawyers were shysters. A charge that the lawyers in a local point in a great city, such as Times Square in
New York City, were shysters would obviously not include all of the lawyers who practiced in that district;
but a statement that all of the lawyers who practiced in a particular building in that district were shysters
would be a specific charge, so that any lawyer having an office within that building could sue.
If the group is a very large one, then the alleged libelous statement is considered to have no application
to anyone in particular, since one might as well defame all mankind. Not only does the group as such
have no action; the plaintiff does not establish any personal reference to himself.20 At present, modern
societal groups are both numerous and complex. The same principle follows with these groups: as the
size of these groups increases, the chances for members of such groups to recover damages on tortious
libel become elusive. This principle is said to embrace two (2) important public policies: first, where the
group referred to is large, the courts presume that no reasonable reader would take the statements as
so literally applying to each individual member; and second, the limitation on liability would satisfactorily
safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise
between the conflicting fundamental interests involved in libel cases.21
In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims
were particularly defamed. The size of the group renders the reference as indeterminate and generic as
a similar attack on Catholics, Protestants, Buddhists or Mormons would do. The word "Muslim" is
descriptive of those who are believers of Islam, a religion divided into varying sects, such as the Sunnites,
the Shiites, the Kharijites, the Sufis and others based upon political and theological distinctions. "Muslim"
is a name which describes only a general segment of the Philippine population, comprising a
heterogeneous body whose construction is not so well defined as to render it impossible for any
representative identification.
The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist,
Episcopalian, Presbyterian, Lutheran, and other groups the essence of which may lie in an inspired
charlatan, whose temple may be a corner house in the fringes of the countryside. As with the Christian
religion, so it is with other religions that represent the nation's culturally diverse people and minister to
each one's spiritual needs. The Muslim population may be divided into smaller groups with varying
agenda, from the prayerful conservative to the passionately radical. These divisions in the Muslim
population may still be too large and ambiguous to provide a reasonable inference to any personality
who can bring a case in an action for libel.
The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S. Puno in the
course of the deliberations in this case. We extensively reproduce hereunder his comprehensive and
penetrating discussion on group libel
Defamation is made up of the twin torts of libel and slander the one being, in general, written, while
the other in general is oral. In either form, defamation is an invasion of the interest in reputation and
good name. This is a "relational interest" since it involves the opinion others in the community may have,
or tend to have of the plaintiff.
The law of defamation protects the interest in reputation the interest in acquiring, retaining and
enjoying one's reputation as good as one's character and conduct warrant. The mere fact that the
plaintiff's feelings and sensibilities have been offended is not enough to create a cause of action for
defamation. Defamation requires that something be communicated to a third person that may affect the
opinion others may have of the plaintiff. The unprivileged communication must be shown of a statement
that would tend to hurt plaintiff's reputation, to impair plaintiff's standing in the community.
Although the gist of an action for defamation is an injury to reputation, the focus of a defamation action
is upon the allegedly defamatory statement itself and its predictable effect upon third persons. A
statement is ordinarily considered defamatory if it "tend[s] to expose one to public hatred, shame,
obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgracex x x." The
Restatement of Torts defines a defamatory statement as one that "tends to so harm the reputation of
another as to lower him in the estimation of the community or to deter third persons from associating or
dealing with him."
Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as part of his prima
facie case that the defendant (1) published a statement that was (2) defamatory (3) of and concerning
the plaintiff.
The rule in libel is that the action must be brought by the person against whom the defamatory charge
has been made. In the American jurisdiction, no action lies by a third person for damages suffered by
reason of defamation of another person, even though the plaintiff suffers some injury therefrom. For
recovery in defamation cases, it is necessary that the publication be "of and concerning the plaintiff."
Even when a publication may be clearly defamatory as to somebody, if the words have no personal
application to the plaintiff, they are not actionable by him. If no one is identified, there can be no libel
because no one's reputation has been injured x x x x
In fine, in order for one to maintain an action for an alleged defamatory statement, it must appear that
the plaintiff is the person with reference to whom the statement was made. This principle is of vital
importance in cases where a group or class is defamed since, usually, the larger the collective, the more
difficult it is for an individual member to show that he was the person at whom the defamation was
directed.
If the defamatory statements were directed at a small, restricted group of persons, they applied to any
member of the group, and an individual member could maintain an action for defamation. When the
defamatory language was used toward a small group or class, including every member, it has been held
that the defamatory language referred to each member so that each could maintain an action. This small
group or class may be a jury, persons engaged in certain businesses, professions or employments, a
restricted subdivision of a particular class, a society, a football team, a family, small groups of union
officials, a board of public officers, or engineers of a particular company.
In contrast, if defamatory words are used broadly in respect to a large class or group of persons, and
there is nothing that points, or by proper colloquium or innuendo can be made to apply, to a particular
member of the class or group, no member has a right of action for libel or slander. Where the
defamatory matter had no special, personal application and was so general that no individual damages
could be presumed, and where the class referred to was so numerous that great vexation and
oppression might grow out of the multiplicity of suits, no private action could be maintained. This rule
has been applied to defamatory publications concerning groups or classes of persons engaged in a
particular business, profession or employment, directed at associations or groups of association officials,
and to those directed at miscellaneous groups or classes of persons.
Distinguishing a small group which if defamed entitles all its members to sue from a large group
which if defamed entitles no one to sue is not always so simple. Some authorities have noted that in
cases permitting recovery, the group generally has twenty five (25) or fewer members. However, there is
usually no articulated limit on size. Suits have been permitted by members of fairly large groups when
some distinguishing characteristic of the individual or group increases the likelihood that the statement
could be interpreted to apply individually. For example, a single player on the 60 to 70 man Oklahoma
University football team was permitted to sue when a writer accused the entire team of taking
amphetamines to "hop up" its performance; the individual was a fullback, i.e., a significant position on
the team and had played in all but two of the team's games.
A prime consideration, therefore, is the public perception of the size of the group and whether a
statement will be interpreted to refer to every member. The more organized and cohesive a group, the
easier it is to tar all its members with the same brush and the more likely a court will permit a suit from
an individual even if the group includes more than twenty five (25) members. At some point, however,
increasing size may be seen to dilute the harm to individuals and any resulting injury will fall beneath the
threshold for a viable lawsuit.
x x x x There are many other groupings of men than those that are contained within the foregoing group
classifications. There are all the religions of the world, there are all the political and ideological beliefs;
there are the many colors of the human race. Group defamation has been a fertile and dangerous
weapon of attack on various racial, religious and political minorities. Some states, therefore, have passed
statutes to prevent concerted efforts to harass minority groups in the United States by making it a crime
to circulate insidious rumors against racial and religious groups. Thus far, any civil remedy for such
broadside defamation has been lacking.
There have been numerous attempts by individual members to seek redress in the courts for libel on
these groups, but very few have succeeded because it felt that the groups are too large and poorly
defined to support a finding that the plaintiff was singled out for personal attack x x x x (citations
omitted).
Our conclusion therefore is that the statements published by petitioners in the instant case did not
specifically identify nor refer to any particular individuals who were purportedly the subject of the
alleged libelous publication. Respondents can scarcely claim to having been singled out for social censure
pointedly resulting in damages.
A contrary view is expressed that what is involved in the present case is an intentional tortious act
causing mental distress and not an action for libel. That opinion invokes Chaplinsky v. New Hampshire22
where the U.S. Supreme Court held that words heaping extreme profanity, intended merely to incite
hostility, hatred or violence, have no social value and do not enjoy constitutional protection; and
Beauharnais v. Illinois23 where it was also ruled that hate speech which denigrates a group of persons
identified by their religion, race or ethnic origin defames that group and the law may validly prohibit
such speech on the same ground as defamation of an individual.
We do not agree to the contrary view articulated in the immediately preceding paragraph. Primarily, an
"emotional distress" tort action is personal in nature, i.e., it is a civil action filed by an individual24 to
assuage the injuries to his emotional tranquility due to personal attacks on his character. It has no
application in the instant case since no particular individual was identified in the disputed article of
Bulgar. Also, the purported damage caused by the article, assuming there was any, falls under the
principle of relational harm which includes harm to social relationships in the community in the form
of defamation; as distinguished from the principle of reactive harm which includes injuries to
individual emotional tranquility in the form of an infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to
their activities in propagating their faith in Metro Manila and in other non-Muslim communities in the
country.25 It is thus beyond cavil that the present case falls within the application of the relational harm
principle of tort actions for defamation, rather than the reactive harm principle on which the concept of
emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of
emotional distress the plaintiff must show that: (a) The conduct of the defendant was intentional or in
reckless disregard of the plaintiff; (b) The conduct was extreme and outrageous; (c) There was a causal
connection between the defendant's conduct and the plaintiff's mental distress; and, (d) The plaintiff's
mental distress was extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in civilized society. The defendant's actions must have been so terrifying as naturally to
humiliate, embarrass or frighten the plaintiff.27 Generally, conduct will be found to be actionable where
the recitation of the facts to an average member of the community would arouse his resentment against
the actor, and lead him or her to exclaim, "Outrageous!" as his or her reaction.28

"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame,
humiliation, embarrassment, anger, disappointment, worry, nausea, mental suffering and anguish,
shock, fright, horror, and chagrin.29 "Severe emotional distress," in some jurisdictions, refers to any type
of severe and disabling emotional or mental condition which may be generally recognized and diagnosed
by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic
depression, or phobia.30 The plaintiff is required to show, among other things, that he or she has
suffered emotional distress so severe that no reasonable person could be expected to endure it; severity
of the distress is an element of the cause of action, not simply a matter of damages.31
Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation,
embarrassment, or anger. Liability does not arise from mere insults, indignities, threats, annoyances,
petty expressions, or other trivialities. In determining whether the tort of outrage had been committed,
a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough
language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact
that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is
not enough.32
Hustler Magazine v. Falwell33 illustrates the test case of a civil action for damages on intentional
infliction of emotional distress. A parody appeared in Hustler magazine featuring the American
fundamentalist preacher and evangelist Reverend Jerry Falwell depicting him in an inebriated state
having an incestuous, sexual liaison with his mother in an outhouse. Falwell sued Hustler and its
publisher Larry Flynt for damages. The United States District Court for the Western District of Virginia
ruled that the parody was not libelous, because no reasonable reader would have understood it as a
factual assertion that Falwell engaged in the act described. The jury, however, awarded $200,000 in
damages on a separate count of "intentional infliction of emotional distress," a cause of action that did
not require a false statement of fact to be made. The United States Supreme Court in a unanimous
decision overturned the jury verdict of the Virginia Court and held that Reverend Falwell may not recover
for intentional infliction of emotional distress. It was argued that the material might be deemed
outrageous and may have been intended to cause severe emotional distress, but these circumstances
were not sufficient to overcome the free speech rights guaranteed under the First Amendment of the
United States Constitution. Simply stated, an intentional tort causing emotional distress must necessarily
give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S. High Court as a "public figure," he
was an individual particularly singled out or identified in the parody appearing on Hustler magazine. Also,
the emotional distress allegedly suffered by Reverend Falwell involved a reactive interest an
emotional response to the parody which supposedly injured his psychological well-being.
Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither was
the emotional distress allegedly suffered by respondents so severe that no reasonable person could be
expected to endure it. There is no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of emotional distress in this
manner34
There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult,
indignity, annoyance, or even threats, where the case is lacking in other circumstances of aggravation.
The reasons are not far to seek. Our manners, and with them our law, have not yet progressed to the
point where we are able to afford a remedy in the form of tort damages for all intended mental
disturbance. Liability of course cannot be extended to every trivial indignity x x x x The plaintiff must
necessarily be expected and required to be hardened to a certain amount of rough language, and to acts
that are definitely inconsiderate and unkind x x x The plaintiff cannot recover merely because of hurt
feelings.
Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:35
There is no occasion for the law to intervene in every case where someone's feelings are hurt. There
must still be freedom to express an unflattering opinion, and some safety valve must be left through
which irascible tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional
harm that would "open up a wide vista of litigation in the field of bad manners," an area in which a
"toughening of the mental hide" was thought to be a more appropriate remedy.36 Perhaps of greater
concern were the questions of causation, proof, and the ability to accurately assess damages for
emotional harm, each of which continues to concern courts today.37
In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by
subsequent First Amendment doctrines. Back in simpler times in the history of free expression the
Supreme Court appeared to espouse a theory, known as the Two-Class Theory, that treated certain types
of expression as taboo forms of speech, beneath the dignity of the First Amendment. The most
celebrated statement of this view was expressed in Chaplinsky:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that
such utterances are no essential part of any exposition of ideas, and are of such slight social value as a
step to truth that any benefit that may be derived from them is clearly outweighed by the social interest
in order and morality.
Today, however, the theory is no longer viable; modern First Amendment principles have passed it by.
American courts no longer accept the view that speech may be proscribed merely because it is "lewd,"
"profane," "insulting" or otherwise vulgar or offensive.38 Cohen v. California39 is illustrative: Paul Robert
Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles courthouse in April 1968, which
caused his eventual arrest. Cohen was convicted for violating a California statute prohibiting any person
from "disturb[ing] the peace x x x by offensive conduct." The U.S. Supreme Court conceded that Cohen's
expletive contained in his jacket was "vulgar," but it concluded that his speech was nonetheless
protected by the right to free speech. It was neither considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or "fighting" words for it had not been directed at a person
who was likely to retaliate or at someone who could not avoid the message. In other words, no one was
present in the Los Angeles courthouse who would have regarded Cohen's speech as a direct personal
insult, nor was there any danger of reactive violence against him.
No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket. The
conviction could only be justified by California's desire to exercise the broad power in preserving the
cleanliness of discourse in the public sphere, which the U.S. Supreme Court refused to grant to the State,
holding that no objective distinctions can be made between vulgar and nonvulgar speech, and that the
emotive elements of speech are just as essential in the exercise of this right as the purely cognitive. As
Mr. Justice Harlan so eloquently wrote: "[O]ne man's vulgarity is another man's lyric x x x words are
often chosen as much for their emotive as their cognitive force."40 With Cohen, the U.S. Supreme Court
finally laid the Constitutional foundation for judicial protection of provocative and potentially offensive
speech.
Similarly, libelous speech is no longer outside the First Amendment protection. Only one small piece of
the Two-Class Theory in Chaplinsky survives U.S. courts continue to treat "obscene" speech as not
within the protection of the First Amendment at all. With respect to the "fighting words" doctrine, while
it remains alive it was modified by the current rigorous clear and present danger test.41 Thus, in Cohen
the U.S. Supreme Court in applying the test held that there was no showing that Cohen's jacket bearing
the words "Fuck the Draft" had threatened to provoke imminent violence; and that protecting the
sensibilities of onlookers was not sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky.
Indeed, when Beauharnais was decided in 1952, the Two-Class Theory was still flourishing. While
concededly the U.S. High Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S.
constitutional jurisprudence substantially undercut Beauharnais and seriously undermined what is left of
its vitality as a precedent. Among the cases that dealt a crushing impact on Beauharnais and rendered it
almost certainly a dead letter case law are Brandenburg v. Ohio,42 and, again, Cohen v. California.43
These decisions recognize a much narrower set of permissible grounds for restricting speech than did
Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal
Syndicalism Statute for advocating the necessity, duty and propriety of crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or political reforms; and for
voluntarily assembling with a group formed to teach or advocate the doctrines of criminal syndicalism.
Appellant challenged the statute and was sustained by the U.S. Supreme Court, holding that the
advocacy of illegal action becomes punishable only if such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.45 Except in unusual instances,
Brandenburg protects the advocacy of lawlessness as long as such speech is not translated into action.
The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla affirmed that
"Brandenburg must be understood as overruling Beauharnais and eliminating the possibility of treating
group libel under the same First Amendment standards as individual libel."46 It may well be considered
as one of the lynchpins of the modern doctrine of free speech, which seeks to give special protection to
politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As correctly
pointed out by Mr. Justice Jose C. Vitug during the deliberations, "an element of a class suit is the
adequacy of representation. In determining the question of fair and adequate representation of
members of a class, the court must consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion of those made parties as it so
bears to the total membership of the class; and, (c) any other factor bearing on the ability of the named
party to speak for the rest of the class.47
The rules require that courts must make sure that the persons intervening should be sufficiently
numerous to fully protect the interests of all concerned. In the present controversy, Islamic Da'wah
Council of the Philippines, Inc., seeks in effect to assert the interests not only of the Muslims in the
Philippines but of the whole Muslim world as well. Private respondents obviously lack the sufficiency of
numbers to represent such a global group; neither have they been able to demonstrate the identity of
their interests with those they seek to represent. Unless it can be shown that there can be a safe
guaranty that those absent will be adequately represented by those present, a class suit, given its
magnitude in this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff
is able to satisfactorily prove the existence of the factual basis for the damages and its causal connection
with the acts complained of,49 and so it must be, as moral damages although incapable of pecuniary
estimation are designed not to impose a penalty but to compensate for injury sustained and actual
damages suffered.50 Exemplary damages, on the other hand, may only be awarded if claimant is able to
establish his right to moral, temperate, liquidated or compensatory damages.51 Unfortunately, neither
of the requirements to sustain an award for either of these damages would appear to have been
adequately established by respondents."
In a pluralistic society like the Philippines where misinformation about another individual's religion is as
commonplace as self-appointed critics of government, it would be more appropriate to respect the fair
criticism of religious principles, including those which may be outrageously appalling, immensely
erroneous, or those couched as fairly informative comments. The greater danger in our society is the
possibility that it may encourage the frequency of suits among religious fundamentalists, whether
Christian, Muslim, Hindu, Buddhist, Jewish, or others. This would unnecessarily make the civil courts a
battleground to assert their spiritual ideas, and advance their respective religious agenda.
It need not be stressed that this Court has no power to determine which is proper religious conduct or
belief; neither does it have the authority to rule on the merits of one religion over another, nor declare
which belief to uphold or cast asunder, for the validity of religious beliefs or values are outside the
sphere of the judiciary. Such matters are better left for the religious authorities to address what is
rightfully within their doctrine and realm of influence. Courts must be viewpoint-neutral when it comes
to religious matters if only to affirm the neutrality principle of free speech rights under modern
jurisprudence where "[a]ll ideas are treated equal in the eyes of the First Amendment even those
ideas that are universally condemned and run counter to constitutional principles."52 Under the right to
free speech, "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."53
Denying certiorari and affirming the appellate court decision would surely create a chilling effect on the
constitutional guarantees of freedom of speech, of expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 27 August
1998 is REVERSED and SET ASIDE, and the Decision of the RTC-Br. 4, Manila, dismissing the complaint for
lack of merit, is REINSTATED and AFFIRMED. No pronouncement as to costs. SO ORDERED.
G.R. No. 164437 May 15, 2009
HECTOR C. VILLANUEVA, Petitioner,
vs. PHILIPPINE DAILY INQUIRER, INC., LETTY JIMENEZ MAGSANOC, ROSAURO G. ACOSTA, JOSE MARIA
NOLASCO, ARTEMIO T. ENGRACIA, JR., RAFAEL CHEEKEE, and MANILA DAILY BULLETIN PUBLISHING
CORPORATION, NAPOLEON G. RAMA, BEN F. RODRIGUEZ, ARTHUR S. SALES, CRIS J. ICBAN, JR.,
Respondents.
D E C I S I O N: QUISUMBING, J.:
This petition for review on certiorari assails the Amended Decision1 dated May 25, 2004 of the Court of
Appeals in CA-G.R. CV No. 54134, reversing the Decision2 of the Regional Trial Court (RTC) of Negros
Oriental, Dumaguete City, Branch 44 in Civil Case No. 206-B, which had awarded damages to petitioner
for respondents false reporting.
The basic facts in this case are uncomplicated.
Petitioner was one of the mayoralty candidates in Bais, Negros Oriental during the May 11, 1992
elections.
On March 30, 1990, Ricardo Nolan, another mayoralty candidate, petitioned for the disqualification of
petitioner from running in the elections. Said petition, however, was denied by the COMELEC.3
Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin Publishing
Corporation (Manila Bulletin) published the following story:
The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD candidate for mayor of Bais City for
having been convicted in three administrative cases for grave abuse of authority and harassment in
1987, while he was officer-in-charge of the mayors office of Bais City.4 [Emphasis and underscoring
supplied.]
A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer, Inc. (PDI) also came
out with a similar story, to wit:
The Commission on Elections disqualified Hector G. Villanueva as Lakas-NUCD candidate for mayor of
Bais City for having been convicted in three administrative cases for grave abuse of authority and
harassment in 1987, while he was the officer-in-charge of the mayors office in the city.

The Comelec upheld the recommendation of the Comelec office in Bais City, stressing that Villanuevas
conviction in the administrative cases barred him from seeking any elective office.
The Comelec cited Section 40 of the Local Government Code of 1991, which provides that among those
who are disqualified from running for any elective position are "those removed from office as a result of
an administrative case."
Villanueva was appointed Bais City OIC on April 18, 1986 by then Local Government Minister Aquilino
Pimentel. Sometime during the same year, three administrative cases were instituted against Villanueva
before the Department of Local Government upon complaint of Rebecco V. Fernandez and Dr. Harte C.
Fuentes.
Sometime in May 1987, the ministry found Villanueva "guilty as charged" and ordered him removed
from his position as OIC of the city government, which decision was approved by Minister Jaime Ferrer.
In the same month, Francisco G. Villanueva was appointed OIC Mayor to replace Hector Villanueva who
had been removed from office.
The poll body also stated that insofar as the penalty of the removal is concerned, this cannot be reversed
anymore, and consequently cannot be the subject matter of an appeal.
The indefinite term as OIC to which respondent was appointed in 1986 already lapsed, with the holding
of the 1988 local elections and the assumption of office of those elected therein.5 [Emphasis and
underscoring supplied.]
On May 11, 1992, the national and local elections were held as scheduled. When results came out, it
turned out that petitioner failed in his mayoralty bid.
Believing that his defeat was caused by the publication of the above-quoted stories, petitioner sued
respondents PDI and Manila Bulletin as well as their publishers and editors for damages before the RTC
of Bais City. He alleged that the articles were "maliciously timed" to defeat him. He claimed he should
have won by landslide, but his supporters reportedly believed the news items distributed by his rivals
and voted for other candidates. He asked for actual damages of P270,000 for the amount he spent for
the campaign, moral damages of P10,000,000, an unspecified amount of exemplary damages, attorneys
fees of P300,000 and costs of suit.6
Respondents disclaimed liability. They asserted that no malice can be attributed to them as they did not
know petitioner and had no interest in the outcome of the election, stressing that the stories were
privileged in nature.7
According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a COMELEC
commissioners press briefing. He, however, came in late and only a fellow reporter told him that the
disqualification case against petitioner was granted. He did not bother to get a confirmation from
anyone as he had a deadline to beat.8
PDI political section editor Carlos Hidalgo, on the other hand, said that he got the story from a press
release. He claimed that he found the press release on his desk the day Manila Bulletin published the
same story. The press release bore COMELECs letterhead and was signed by one Sonia Dimasupil, a
former Malaya newspaper editor who was in-charge of COMELEC press releases. He tried to contact her
but she was out of the office. Since the news item was also published in the Manila Bulletin, he felt
confident the press release was authentic. He however failed to produce the press release in court.9
On April 18, 1996, the trial court rendered a decision in favor of petitioner as follows:
WHEREFORE FOREGOING CONSIDERED, this Court holds that defendants Philippine Daily Inquirer, [Inc.]
and Manila [Daily] Bulletin Publishing Corporation with their respective officers are liable [for] damages
to plaintiff in the following manner:
1. As moral damages, the Philippine Daily Inquirer, [Inc.] and the Manila [Daily] Bulletin Publishing
Corporation are ordered to pay P1,000,000.00 each to plaintiff;
2. Both defendants are likewise ordered to pay an exemplary damage in the amount of P500,000.00
each;
3. To pay plaintiffs attorneys fees in the amount of P100,000.00;
4. And to pay the costs.
SO ORDERED.10
The trial court found the news items derogatory and injurious to petitioners reputation and candidacy. It
faulted respondents for failing to verify the truth of the news tips they published and held respondents
liable for negligence, citing Policarpio v. Manila Times Pub. Co., Inc.11 The trial court also ruled that
because the news items lacked truth and fairness, they were not privileged communications.
On appeal by respondents, the Court of Appeals dismissed the complaint. It explained that although the
stories were false and not privileged, as there is no proof they were obtained from a press conference or
release, respondents were not impelled by malice or improper motive. There was also no proof that
petitioners supporters junked him due to the reports. Neither was there any proof he would win,
making his action unfounded.
Before us, petitioner raises the lone issue of whether:
[THE] HONORABLE APPELLATE COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
UTTER LACK OF JURISDICTION WHEN IT UNILATERALLY, UNPROCEDURALLY AND ARBITRARILY CHANGED
THE PLEADING-BORNE AND PRE-TRIAL ORDER DELINEATED THEORY OF QUASI-DELICT OF APPELLEE,
THEREBY DISMISSING THE CASE FOR FAILURE TO EVIDENCE AN ESSENTIAL REQUISITE OF ITS IMPOSED
IRRELEVANT THEORY.12
Simply stated, we are asked to resolve the issue of whether petitioner is required to prove malice to be
entitled to damages.
Petitioner argues that his cause of action is based on quasi-delict which only requires proof of fault or
negligence, not proof of malice beyond reasonable doubt as required in a criminal prosecution for libel.
He argues that the case is entirely different and separate from an independent civil action arising from
libel under Article 10013 of the Revised Penal Code. He claims he proffered proofs sustaining his claim
for damages under quasi-delict, not under the law on libel, as malice is hard to prove. He stresses that
nowhere in the complaint did he mention libel, and nothing in his complaint shows that his cause of
action had some shade of libel as defined in the Revised Penal Code. He also did not hint a resort to a
criminal proceeding for libel.14
PDI and its officers argue that petitioners complaint clearly lays a cause of action arising from libel as it
highlights malice underlying the publications. And as malice is an element of libel, the appellate court
committed no error in characterizing the case as one arising from libel.15
For their part, Manila Bulletin and its officers claim that petitioner changed his theory, which must be
disallowed as it violates respondents right to due process. Although petitioners claim for damages
before the trial court hinged on the erroneous publications, which he alleged were maliciously timed, he
claims in his petition before this Court that his cause of action is actually one for quasi-delict or tort. They
stress that the prayer and allegations in petitioners complaint, which never alleged quasi-delict or tort
but malicious publication as basis for the claim for damages, control his case theory. Thus, it may not be
altered unless there was an amendment of the complaint to change the cause of action. They claim that
petitioners initiatory pleading and the trial courts pre-trial order and decision reveal that his cause of
action for damages arose from the publications of the "malicious" articles; hence, he should have proved
actual malice to be entitled to any award of damages. They added that the appellate court correctly
ruled that the articles were not published with actual malice.161avvphil.zw+
We rule in favor of the respondents.
Basic is the rule that what determines the nature of an action as well as which court has jurisdiction over
it are the allegations of the complaint and the character of the relief sought.17 The nature of a pleading
is determined by allegations therein made in good faith, the stage of the proceeding at which it is filed,
and the primary objective of the party filing the same. The ground chosen or the rationale adopted by
the court in resolving the case does not determine or change the real nature thereof.
The complaint was denominated as one for "damages", and a perusal of its content reveals that the
factual allegations constituted a complaint for damages based on malicious publication. It specifically
pointed out that petitioner lost the election because of the bad publicity created by the malicious
publication of respondents PDI and Manila Bulletin. It is alleged numerous times that the action for
damages stemmed from respondents malicious publication. Petitioner sought that respondents be
declared guilty of irresponsible and malicious publication and be made liable for damages. The fact that
petitioner later on changed his theory to quasi-delict does not change the nature of petitioners
complaint and convert petitioners action into quasi-delict. The complaint remains to be one for
damages based on malicious publication.
Consequently, as the issue of malice was raised, it was incumbent on petitioner to prove the same. The
basic rule is that mere allegation is not evidence, and is not equivalent to proof.18 As correctly stated by
the Court of Appeals, while the questioned news item was found to be untrue, this does not necessarily
render the same malicious.
To fully appreciate the import of the complaint alleging malice and damages, we must recall the essence
of libel.
Libel is defined as "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 cause the dishonor, discredit, or
contempt of a natural person or juridical person, or to blacken the memory of one who is dead."19 Any
of these imputations is defamatory and under the general rule stated in Article 354 of the Revised Penal
Code, every defamatory imputation is presumed to be malicious.20 The presumption of malice,
however, does not exist in the following instances:
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.21
We note that the publications or articles in question are neither private communications nor true reports
of official proceedings without any comments or remarks. However, this does not necessarily mean that
the questioned articles are not privileged. The enumeration under Art. 354 is not an exclusive list of
qualified privileged communications since fair commentaries on matters of public interest are likewise
privileged and constitute a valid defense in an action for libel or slander.22 The rule on privileged
communication had its genesis not in the nations penal code but in the Bill of Rights of the Constitution
guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Caete,23 this
Court ruled that publications which are privileged for reasons of public policy are protected by the
constitutional guaranty of freedom of speech.24
In the instant case, there is no denying that the questioned articles dealt with matters of public interest.
These are matters about which the public has the right to be informed, taking into account the very
public character of the election itself. For this reason, they attracted media mileage and drew public
attention not only to the election itself but to the candidates. As one of the candidates, petitioner
consequently assumed the status of a public figure within the purview of Ayers Productions Pty. Ltd. v.
Capulong.25
But even assuming a person would not qualify as a public figure, it would not necessarily follow that he
could not validly be the subject of a public comment. For he could; for instance, if and when he would be
involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become
less so merely because a private individual is involved or because in some sense the individual did not
voluntarily choose to become involved. The publics primary interest is in the event; the public focus is
on the conduct of the participant and the content, effect and significance of the conduct, not the
participants prior anonymity or notoriety.26
In any event, having been OIC-Mayor of Bais City after the People Power Revolution, petitioner in this
case as early as 1992 was already a well-known official and public figure.
However, it must be stressed that the fact that a communication or publication is privileged does not
mean that it is not actionable; the privileged character simply does away with the presumption of malice,
which the plaintiff has to prove in such a case.27 That proof in a civil case must of course be based on
preponderance of evidence. This, however, petitioner failed to do in this case.
Under the current state of our jurisprudence, to be considered malicious, the libelous statement must be
shown to have been written or published with the knowledge that they are false or in reckless disregard
of whether they are false or not. "Reckless disregard of what is false or not" means that the author or
publisher entertains serious doubt as to the truth of the publication, or that he possesses a high degree
of awareness of their probable falsity.28
In the instant case, we find no conclusive showing that the published articles in question were written
with knowledge that these were false or in reckless disregard of what was false or not. According to
Manila Bulletin reporter Edgardo T. Suarez, he got the story from a fellow reporter who told him that the
disqualification case against petitioner was granted. PDI, on the other hand, said that they got the story
from a press release the very same day the Manila Bulletin published the same story. PDI claims that the
press release bore COMELECs letterhead, signed by one Sonia Dimasupil, who was in-charge of
COMELEC press releases. They also tried to contact her but she was out of the office. Since the news
item was already published in the Manila Bulletin, they felt confident the press release was authentic.
Following the narration of events narrated by respondents, it cannot be said that the publications, were
published with reckless disregard of what is false or not.
Nevertheless, even assuming that the contents of the articles turned out to be 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.29
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 malice or damages, i.e. libel, so long as the
newspaper respects and keeps within the standards of morality and civility prevailing within the general
community.30
Likewise, in our view respondents failure to counter-check their report or present their informant
should not be a reason to hold them liable. While substantiation of the facts supplied is an important
reporting standard, still, a reporter may rely on information given by a lone source although it
reflects only one side of the story provided the reporter does not entertain a "high degree of awareness
of [its] probable falsity."31 Petitioner, in this case, presented no proof that respondents entertained such
awareness. Failure to present respondents informant before the court should not be taken against
them.32
Worth stressing, jurisprudence instructs us that a privileged communication should not be subjected to
microscopic examination to discover grounds for malice or falsity. Such excessive scrutiny would defeat
the protection which the law throws over privileged communications. The ultimate test is that of bona
fides.33
Further, worthy of note, before the filing of the complaint, respondents herein received no word of
protest, exception or objection from petitioner. Had the error in the news reports in question been
pointed out by interested parties to the respondents, their publishers and editors could have promptly
made a rectification through print and broadcast media just before and during the election day
deflecting thereby any prejudice to petitioners political or personal interest.
As aptly observed in Quisumbing v. Lopez, et al.:34
Every citizen of course has the right to enjoy a good name and reputation, but we do not consider that
the respondents, under the circumstances of this case, had violated said right or abused the freedom of
the press. The newspapers should be given such leeway and tolerance as to enable them to courageously
and effectively perform their important role in our democracy. In the preparation of stories, press
reporters and edition usually have to race with their deadlines; and consistently with good faith and
reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or
imperfection in the choice of words.35 [Emphasis supplied.]
We find respondents entitled to the protection of the rules concerning qualified privilege, growing out of
constitutional guaranties in our Bill of Rights. We cannot punish journalists including publishers for an
honest endeavor to serve the public when moved by a sense of civic duty and prodded by their sense of
responsibility as news media to report what they perceived to be a genuine report.
Media men are always reminded of their responsibilities as such. This time, there is also a need to
remind public figures of the consequences of being one. Fittingly, as held in Time, Inc. v. Hill,36 one of
the costs associated with participation in public affairs is an attendant loss of privacy.
Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk
of this exposure is an essential incident of life in a society which places a primary value on freedom of
speech and of press. "Freedom of discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to enable the members of society
to cope with the exigencies of their period."37
On petitioners claim for damages, we find no evidence to support their award. Indeed, it cannot be said
that respondents published the questioned articles for the sole purpose of harassing petitioner. Proof
and motive that the publication was prompted by a sinister design to vex and humiliate petitioner has
not been clearly and preponderantly established to entitle the petitioner to damages. There remains
unfulfilled the need to prove that the publications were made with actual malice that is, with the
knowledge of the publications falsity or with reckless disregard of whether they were false or not.38
Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:
For liability to arise then without offending press freedom, there is this test to meet: "The constitutional
guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the 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 United States Supreme Court went further in Curtis Publishing Co. v. Butts,39 where
such immunity, was held as covering statements concerning public figures regardless of whether or not
they are government officials. Why there should be such an extension is understandable in the light of
the broad scope enjoyed by press freedom which certainly allows a full and free discussion of public
issues. What can be more logical and appropriate, then, than such an expansion of the principle. As
noted by a commentator: "Since discussion of public issues cannot be meaningful without reference to
the men involved on both sides of such issues, and since such men will not necessarily be public officials,
one cannot but agree that the Court was right in Curtis to extend the Times40 rule to all public
figures."41 [Emphasis supplied.]
Furthermore, the guarantee of press freedom has also come to ensure that claims for damages arising
from the utilization of the freedom be not unreasonable or exorbitant as to practically cause a chilling
effect on the exercise thereof. Damages, in our view, could not simply arise from an inaccurate or false
statement without irrefutable proof of actual malice as element of the assailed publication.
WHEREFORE, the assailed Amended Decision dated May 25, 2004 of the Court of Appeals in CA-G.R. CV
No. 54134 is AFFIRMED. SO ORDERED.
G.R. No. 157643 March 28, 2008
CRISTINELLI S. FERMIN, Petitioner,
vs.PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
Before us is a petition1 for review on certiorari, under Rule 45 of the Rules of Court, of the Decision2
dated September 3, 2002 and the Resolution3 dated March 24, 2003 of the Court of Appeals (CA) in CA-
G.R. CR No. 20890 entitled "People of the Philippines v. Cristenelli S. Fermin and Bogs C. Tugas."
On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2) criminal
informations for libel4 were filed against Cristinelli5 S. Fermin and Bogs C. Tugas before the Regional
Trial Court (RTC) of Quezon City, Branch 218. Except for the name of the complainant,6 the informations
uniformly read
That on or about the 14th day of June, 1995 in Quezon City, Philippines, the above-named accused
CRISTENELLI SALAZAR FERMIN, publisher, and BOGS C. TUGAS, Editor-in-Chief of Gossip Tabloid with
offices located at 68-A Magnolia Tulip St., Roxas District, Quezon City, and circulated in Quezon City and
other parts of Metro Manila and the whole country, conspiring together, confederating with and
mutually helping each other, publicly and acting with malice, did then and there willfully, unlawfully and
feloniously print and circulate in the headline and lead story of the said GOSSIP TABLOID issue of June
14, 1995 the following material, to wit:
"MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DOON
SI ANNABELLE"
"IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT DIN ANG ASUNTO NILA DUN,
BUKOD PA SA NAPAKARAMING PINOY NA HUMAHANTING SA KANILA MAS MALAKING PROBLEMA ANG
KAILANGAN NIYANG HARAPIN SA STATES DAHIL SA PERANG NADISPALKO NILA, NAGHAHANAP LANG NG
SAKIT NG KATAWAN SI ANNABELLE KUNG SA STATES NGA NIYA MAIISIPANG PUMUNTA NGAYON PARA
LANG TAKASAN NIYA SI LIGAYA SANTOS AT ANG SINTENSIYA SA KANYA"
when in truth and in fact, the accused very well knew that the same are entirely false and untrue but
were publicly made for no other purpose than to expose said ANNABELLE RAMA GUTIERREZ to
humiliation and disgrace, as it depicts her to be a fugitive from justice and a swindler, thereby causing
dishonor, discredit and contempt upon the person of the offended party, to the damage and prejudice of
the said ANNABELLE RAMA GUTIERREZ.

CONTRARY TO LAW.7
Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded "not guilty."
Thereafter, a joint trial ensued.
After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision8 dated January 27,
1997, found petitioner and Tugas guilty of libel. The dispositive portion of the Joint Decision reads
WHEREFORE, prosecution having established the guilt of the accused, judgment is hereby rendered
finding CRISTENELLI S. FERMIN and BOGS C. TUGAS GUILTY beyond reasonable doubt, of libel, punishable
under Art. 355 of the Revised Penal Code and sentences them to an indeterminate penalty of three (3)
months and eleven (11) days of arresto mayor, as minimum, to one (1) year, eight (8) months and
twenty-one (21) days of prision correccional, as maximum, for each case.
Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to pay jointly and solidarily:
a) moral damages of:
1. P500,000.00 to Annabelle Rama in Criminal Case No. Q-95-62823; and
2. P500,000.00 to Eddie Gutierrez in Criminal Case No. Q-95-62824;
b) attorneys fees of P50,000.00.
SO ORDERED.9
Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its Decision dated September
3, 2002, affirmed the conviction of petitioner, but acquitted Tugas on account of non-participation in the
publication of the libelous article. The fallo of the Decision reads
WHEREFORE, judgment is hereby rendered as follows:
1. The appealed decision as against the accused-appellant BOGS C. TUGAS is REVERSED and SET ASIDE,
and another is entered ACQUITTING him of the crime charged and ABSOLVING him from any civil
liability; and
2. The same appealed decision as against accused-appellant CRISTENELLI S. FERMIN is AFFIRMED, with
the MODIFICATION that the award of moral damages is REDUCED to P300,000.00 for EACH offended
party, and the award of attorneys fees is DELETED.
Costs against the appellant FERMIN. SO ORDERED.10
The CA denied petitioners motion for reconsideration for lack of merit in the Resolution dated March
24, 2003. Hence, this petition, raising the following arguments:
I.
THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO AND SANTIAGO, U.S. VS. MADRIGAL AND U.S. VS.
SANTOS AND THE HOLDING IN U.S. VS. OCAMPO AS CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS.
BELTRAN AND SOLIVEN REQUIRING KNOWLEDGE, PARTICIPATION AND COMPLICITY BY THE PUBLISHER
IN THE PREPARATION AND APPROVAL OF THE LIBELOUS ARTICLE TO SUSTAIN THE LATTERS CONVICTION
FOR LIBEL ARE APPLICABLE IN THE PRESENT CASE.
II.
ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A PUBLISHER LIABLE FOR LIBEL TO THE SAME
EXTENT AS IF HE WERE THE AUTHOR THEREOF MERELY CREATES A DISPUTABLE PRESUMPTION WHICH
MAY BE REBUTTED BY CONTRARY EVIDENCE.
III.
THE QUESTIONED ARTICLE IS NOT LIBELOUS.
IV.
THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE OF THE FREEDOM OF THE PRESS AND IS
WITHIN THE REALM OF FAIR AND HONEST COMMENT.11
Being interrelated, we shall discuss the first and the second issues jointly, then the third and the fourth
issues together.
Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal Code, it is
mandatory that the publisher knowingly participated in or consented to the preparation and publication
of the libelous article. This principle is, allegedly, based on our ruling in U.S. v. Taylor,12 People v.
Topacio and Santiago,13 U.S. v. Madrigal,14 U.S. v. Abad Santos,15 and U.S. v. Ocampo,16 as purportedly
clarified in People v. Beltran and Soliven.17 She submits that these cases were applied by the CA in
acquitting her co-accused Tugas, and being similarly situated with him, she is also entitled to an
acquittal. She claims that she had adduced ample evidence to show that she had no hand in the
preparation and publication of the offending article, nor in the review, editing, examination, and
approval of the articles published in Gossip Tabloid.
The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact, damning.
Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case. U.S. v.
Madrigal pertains to a criminal prosecution under Section 30 of Act No. 1519 for fraudulently
representing the weight or measure of anything to be greater or less than it is, whereas U.S. v. Abad
Santos refers to criminal responsibility under the Internal Revenue Law (Act. No. 2339).
The other cases are more in point, but they serve to reinforce the conviction of, rather than absolve,
petitioner.
In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which provides that: "Every
author, editor or proprietor of any book, newspaper, or serial publication is chargeable with the
publication of any words contained in any part of said book or number of each newspaper or serial as
fully as if he were the author of the same." However, proof adduced during the trial showed that
accused was the manager of the publication without the corresponding evidence that, as such, he was
directly responsible for the writing, editing, or publishing of the matter contained in the said libelous
article.18
In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of the Revised
Penal Code which includes the verb "publicar." Thus, it was held that Article 360 includes not only the
author or the person who causes the libelous matter to be published, but also the person who prints or
publishes it.
Based on these cases, therefore, proof of knowledge of and participation in the publication of the
offending article is not required, if the accused has been specifically identified as "author, editor, or
proprietor" or "printer/publisher" of the publication, as petitioner and Tugas are in this case.
The rationale for the criminal culpability of those persons enumerated in Article 360 of the Revised Penal
Code19 was enunciated in U.S. v. Ocampo,20 to wit:
"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."
(Whartons Criminal Law, secs. 1627, 1649; 1 Bishops 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 paper, 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."
It is worthy to note that petitioner was not only the "publisher," as shown by the editorial box of Gossip
Tabloid,21 but also its "president" and "chairperson" as she herself admitted on the witness stand.22
She also testified that she handled the business aspect of the publication, and assigns editors to take
charge of everything.23 Obviously, petitioner had full control over the publication of articles in the said
tabloid. Her excuse of lack of knowledge, consent, or participation in the release of the libelous article
fails to persuade. Following our ruling in Ocampo, petitioners criminal guilt should be affirmed, whether
or not she had actual knowledge and participation, having furnished the means of carrying on the
publication of the article purportedly prepared by the members of the Gossip Reportorial Team, who
were employees under her control and supervision.
Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and Soliven such that
Maximo V. Soliven, as publisher of The Philippine Star, was acquitted by the appellate court in view of
the lack of evidence that he knew and approved the article written by Luis D. Beltran about then
President Corazon C. Aquino in the newspapers October 12, 1987 issue. Petitioner submits that People
v. Beltran and Soliven serves as a guide to this Court regarding the criminal liability of the publisher of
the newspaper where a libelous article is published. Put differently, it appears that petitioner wants this
Court to follow the CA decision and adopt it as judicial precedent under the principle of stare decisis.
The doctrine of stare decisis, embodied in Article 824 of the Civil Code, is enunciated, thus:
The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to
follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial
precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is
based on the principle that once a question of law has been examined and decided, it should be deemed
settled and closed to further argument.25 (Emphasis supplied)
Unfortunately, the Beltran decision attained finality at the level of the CA. Thus, if the CA seemingly
made a new pronouncement regarding the criminal liability of a publisher under Article 360 of the
Revised Penal Code, that ruling cannot bind this Court unless we purposely adopt the same. Be that as it
may, we find no compelling reason to revisit U.S. v. Ocampo; to modify it would amount to judicial
legislation. Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven, which
requires specific knowledge, participation, and approval on the part of the publisher to be liable for the
publication of a libelous article, would be reading into the law an additional requirement that was not
intended by it.
In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot feign lack of participation
in the publication of the questioned article as was evident from his and petitioners Joint Counter-
Affidavit,26 and as gleaned from his testimony before the trial court, to wit:
WITNESS: As editor-in-chief, I have no participation in the writing of the questioned article and my only
participation in the publication is the handling of the physical lay-outing, indication and allocation of
type-size of the body of the article, before the same was printed and published in GOSSIP Tabloid.
Q: You do not deny the statements in this publication as executed by you in the counter-affidavit and
sworn in before the City Prosecutor, is this correct?
A: Yes, that is correct.
ATTY. ALENTAJAN:
That is all for the witness, your Honor.
COURT: Do we get it right from you, if you were acting as you were, you will not allow the said
publication of this same article or same stories?
A: If I were, if I was physically present, honestly I will because if you can see the article, your Honor, it is
according to our source, it is not a direct comment.
COURT: So whether you are there or not, [the] same article leading to them (sic) will still find its way to
come out?
A: Yes, your honor.27
Tugas testimony, in fact, confirms his actual participation in the preparation and publication of the
controversial article and his approval thereof as it was written. Moreover, his alibi, which was considered
meritorious by the CA, that he was confined at the Mother of Perpetual Help Clinic in Angeles City, is
unavailing, in view of the testimony of his attending physician that Tugas medical condition did not
prevent him from performing his work, thus
Q: How would you describe the condition of the patient on June 13, 1995?
A: He is in stable condition.
Q: You said he was in severe pain, from your opinion, was that condition sufficient to enable him to
work?
A: Yes, in my opinion.28
Q: You said your impression of the patient was urethral colic and this was caused by spasm?
A: Yes, sir. HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN NIYANG ASUNTONG INIWAN DUN
Q: When you say spasm, it is not sustained, it comes every now and then and [intermittently], it is not NOON PA, NAKAPAG-ABROAD MAN SIYA, E, PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA
sustained? AMERIKA PA KAYA SIYA MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN DUN NG NGA
A: Yes, sir. KABABAYAN NATING NILOKO NIYA, IN ONE WAY OR ANOTHER?... NAAALALA PA BA NINYO YUNG MGA
Q: Now you said he was in stable condition? MAMAHALING KALDERO NA IBINEBENTA NILA NOON SA AMERIKA, DUN SILA NAGKAPROBLEMA,
A: Yes, sir. MILYON-MILYON ANG INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA PILIPINAS NOON!
Q: That means that his ailment is not life-threatening?
A: Correct. The rest of the article, which continued to the entire second page of the tabloid, follows
Q: In fact, visitors were allowed to see him? Mainit na pinag-uusapan ngayon ang ibat ibang posibilidad na maaaring gawin ni Annabelle Rama
A: Yes, sir. Gutierrez para lang hindi matuloy ang pag-aresto at pagkukulong sa kanya ng mga awtoridad kaugnay ng
Q: He can also write? sintensiyang ipinapataw sa kanya ni Manila-RTC Judge Rodolfo Palattao.
A: Yes, sir. Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang sinumang nakapagtuturo kung saan talaga
Q: He was allowed to [receive] friends? naroon ang ina ni Ruffa Gutierrez na hindi pinayagang makapagpiyansa ng Branch 33 para sa
A: Yes, sir. pansamantala niyang kalayaan.
Q: According to you, he was able to work also, he is not totally incapacitated in performing certain May mga nagpapalagay na sa pamamagitan ng tinatawag na back-door exit, ang pag-alis ng bansa sa
chores in the hospital room? paraang hindi na kailangan pang dumaan sa NAIA, ay nakaalis na si Annabelle noon pang nakaraang
A: No, sir. Biyernes, June 9, patungong Amerika.
Q: Now, prior to 7:10 oclock in the morning of June 13, 1995, you did not see Mr. Bogs Tugas? Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing napaka-imposibleng sa Amerika
A: I saw him, he was admitted at 7:00 oclock but I saw him before. nagtungo si Annabelle dahil doon man ay may mga nakahanda nang awtoridad na handang magkulong
Q: How long before 7:10 were you able to see him? kay Annabelle, sakaling mapatunayang naroon nga siya.
A: That is about 2 hours. "Hindi siya makapupunta sa Amerika dahil napakarami rin niyang asuntong iniwan doon noon pa!
Q: About 5:00 oclock in the morning? "Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil nakaabang na rin ang
A: Yes, sir. sangkatutak niyang maniningil dun ngayon!
Q: Who was his companion when you saw him? "Sa Amerika pa kaya siya magtatago, samantalang ilang taon na rin siyang inaabangan dun ng mga
A: He was boarding in my place. kababayan nating niloko niya, in one way or another?" simula ng source ng Gossip Tabloid.
Q: So, you brought him to the hospital? Niliwanag ng naturang source na ang dahilan ng biglaang pag-uwi ng pamilya Gutierrez sa bansa ilang
A: Both of us went to the hospital. taon na ang nakararaan ay may kinalaman sa malaking halagang hindi nabayaran nina Eddie at Annabelle
Q: Which boarding house are you referring [to]? In Angeles City? sa ilang kababayan natin sa Amerika.
A: Yes, sir. "Naaalala pa ba ninyo yung mga kalderong ibinebenta noon nina Eddie at Annabelle sa States?
Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-in-chief of a newspaper "Mga mamahaling kaldero yun, hindi basta-basta kaldero ang ibinebenta nila dun, kaya talagang ang
tabloid? ganda-ganda na sana ng buhay nilang mag-anak dun hanggang sa dumating yung point na sinisingil na
A: Yes, sir. sila nung mismong kompanya ng kaldero!
Q: And some of his work is done in your boarding house? "Malaki ang halagang involved, milyon-milyon, kaya nung kinasuhan na sila, e kinailangan nilang umalis
A: I do not know about it. sa Amerika para bumalik na dito.
Q: How did you know that he is working on his paper works in Quezon City? Did you see him do that? "Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema kina Eddie at Annabelle, alam
A: I only know he goes to Manila everyday. ba nyo yun?
Q: In your boarding house, you saw him read and write? "Ang ganda-ganda ng samahan nila nung una sa Amerika, yumaman sila nang dahil sa mga mamahaling
A: Probably yes.29 kaldero na ibinebenta nila, kaso, sumabit sina Eddie at Annabelle dun sa mismong company na
pinagkukunan nila ng produkto!
But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas because with his "Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga kalderong yun, e sumabit pa
acquittal by the CA, we would run afoul of his constitutional right against double jeopardy. sila nang malaking halaga sa mismong manufacturer nung mga ibinebenta nilang mamahaling kaldero!
"Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas ang pamilya ni Eddie!
Anent the third and fourth issues, petitioner argues that the subject article in the June 14, 1995 issue of "Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi nilang lumaking Pilipinong-Pilipino ang
Gossip Tabloid is not libelous, is covered by the mantle of press freedom, and is merely in the nature of a kanilang mga anak, pero ang totoo, e, napakalaki ng problemang iniwan nila sa Amerika!" mahabang
fair and honest comment. We disagree. simula ng source ng Gossip Tabloid.
Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon nina Eddie at Annabelle, lalo na si
The banner headlines of the offending article read: Annabelle, na bukod sa mataray na ay may kayabangan pa.
"Dati nang ganyan si Annabelle! Mataray siya na wala sa lugar. Nung nasa Amerika pa silang mag-anak,
KUNG TOTOONG NAKATAKAS NA SI ANNABELLE RAMA, IMPOSIBLENG SA STATES SIYA NAGPUNTA! e, yun din ang madalas nilang pag-awayan dun ni Eddie!
MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DUN SI "Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng mga sama niya ng loob, e, dun
ANNABELLE! nag-i-stay sa bahay ng mga kaibigan niyang Pinoy!
"Grabe ang naging problema nila dun, kaya wala silang choice that time kung di ang umuwi na lang sa
On the first page of the same issue of Gossip Tabloid, written in smaller but bold letters, are: Pilipinas!
"Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta-basta, milyunan yon!
"Kaso yung pinagbebentahan nila, yung halagang dapat sana, e, ibigay nila sa kompanya dahil
porsiyentuhan lang naman sila dun, nagastos nila!
"Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan kung bakit nalubog sila noon sa
utang sa States!
"Nag-casino pala si Annabelle! Grabe raw kung magpatalo siya, kaya pati yung kinita nila sa pagbebenta
ng mamahaling kaldero, e, natunaw!" sabi uli ng source ng Gossip Tabloid.
Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source ng Gossip Tabloid, kaya ngayong
may asunto naman si Annabelle dito sa Pilipinas ay napaka-imposibleng sa Amerika pa rin siya tatakbo.
"Paano siya magpupunta dun para tuluyan nang manirahan, e, ang dami-dami ring Pinoy na naghihintay
sa kanya dun para maningil sa kanya?
"Alam nyo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na nandun, e, may mga nakaabang na
ring asunto para kay Annabelle.
"So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa abroad siya dahil sa mga
naghihintay na kaso sa kanya dun.
"Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.
"Di bat ilang beses nang nagpapabalik-balik dun sina Ruffa. Noon pa, e, pinag-aralan na nina Eddie at
Annabelle ang posibilidad ng mga gagawin nila!
"Alam nila na hindi sila puwedeng mag-stay sa States dahil kalat din ang asunto nila dun, bukod pa sa
napakaraming Pinoy na huma-hunting sa kanila!
"Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas siya sa pagkakulong,
imposibleng sa States siya nagpunta!
"Mas malaking problema ang kailangan niyang harapin sa States dahil sa perang nadispalko nila, bukod
pa sa asuntong iniwan nilang nakatiwangwang dun!
"Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya maisipang pumunta ngayon para
lang malusutan si Ligaya Santos at ang sintensiya sa kanya ni Judge Palattao!" madiin pang pahayag ng
mapagkakatiwalaang source ng Gossip Tabloid.30
A libel is defined as 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 cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.31 In
determining whether a statement is defamatory, the words used are to be construed in their entirety
and should be taken in their plain and ordinary meaning as they would naturally be understood by
persons reading them, unless it appears that they were used and understood in another sense.32
To say that the article, in its entirety, is not libelous disturbs ones sensibilities; it would certainly prick
ones conscience. There is evident imputation of the crime of malversation (that the complainants
converted for their personal use the money paid to them by fellow Filipinos in America in their business
of distributing high-end cookware); of vices or defects for being fugitives from the law (that
complainants and their family returned to the Philippines to evade prosecution in America); and of being
a wastrel (that Annabelle Rama Gutierrez lost the earnings from their business through irresponsible
gambling in casinos). The attribution was made publicly, considering that Gossip Tabloid had a
nationwide circulation. The victims were identified and identifiable. More importantly, the article reeks
of malice, as it tends to cause the dishonor, discredit, or contempt of the complainants.
Petitioner claims that there was no malice on her part because, allegedly, the article was merely a fair
and honest comment on the fact that Annabelle Rama Gutierrez was issued a warrant of arrest for her
conviction for estafa before then Judge Palattaos court. She even cited as proof of her lack of malice the
purported absence of any ill will against complainants, as shown by the article she wrote about
complainants daughter Sharmaine Ruffa Gutierrez in the June 15, 1995 issue of the same tabloid where
she expressed her sympathy and admiration for the latter.
Notably, however, the complainants successfully refuted the imputations during the trial. Complainants
proved that they could return anytime to the United States of America after the publication of the
article,33 and that they remained on good terms with the manufacturing company of the cookware.34
To the contrary, both petitioner and Tugas failed to adduce evidence to show the truth of the allegations
in the article despite the opportunity to do so.
Further worthy of mention is the admission of petitioner before the trial court that she had very close
association with then Congressman Golez and mayoralty candidate Joey Marquez, and that she would
use her skills as a writer to campaign for them. Complainant Eddie Gutierrez ran against then incumbent
Golez for the congressional seat in Paraaque City. Petitioner testified in this wise
Q: When you acted as writer during the campaign, as you said, for Joey Marquez and Golez, of course
you did not give your services for free to these candidates, were you paid?
A: I was not paid, Sir.
Q: You just wanted to help them, am I correct?
A: Yes, because they are my friends, Sir.
Q: And you wanted them to win the election, thru your being a writer, is that correct?
A: Yes, Sir.
Q: You were campaigning hard for Golez and Marquez, right?
A: Right, Sir.
Q: When you say hard, you wanted your candidates to win, is it not?
A: Yes, Sir.
Q: Who was the opponent of Joey Marquez at that time?
A: The former Mayor Olivares, Sir.
Q: How about the opponent of Congressman Golez?
A: One of them is Eddie Gutierrez, Sir.
Q: And the tandem of Marquez and Golez versus the tandem of Olivares and Eddie Gutierrez, am I
correct?
A: Actually, that was the situation at that time, Sir.
Q: Of course, the tandem of Joey Marquez was working hard to win over their opponent, is it not?
A: Whatever their problems were, I am out.
Q: As a hard campaigner, you wanted your team to win over the other, is this correct?
A: Yes, Sir.
Q: Of course you understand what PRO work is, it includes propaganda, is that correct?
A: I am sorry I dont accept PR work, Sir.
Q: Do you understand PRO work?
A: Yes, Sir, I know.
Q: In propaganda, for your side, you promote it as against the other, right?
A: Yes, Sir.35
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself,
but there was also malice in fact, as there was motive to talk ill against complainants during the electoral
campaign.
Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the press.
Although a wide latitude is given to critical utterances made against public officials in the performance of
their official duties, or against public figures on matters of public interest, such criticism does not
automatically fall within the ambit of constitutionally protected speech. If the utterances are false,
malicious or unrelated to a public officers performance of his duties or irrelevant to matters of public
interest involving public figures, the same may give rise to criminal and civil liability.36 While
complainants are considered public figures for being personalities in the entertainment business, media
people, including gossip and intrigue writers and commentators such as petitioner, do not have the
unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious
comments, whether in broadcast media or in print, about their personal lives.37
We must however take this opportunity to likewise remind media practitioners of the high ethical
standards attached to and demanded by their noble profession. The danger of an unbridled irrational
exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in
willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the
right and the regression of human society into a veritable Hobbesian state of nature where life is short,
nasty and brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is to
truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine
freedom being that which is limned by the freedom of others. If there is freedom of the press, ought
there not also be freedom from the press? It is in this sense that self-regulation as distinguished from
self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x x x a
lively sense of responsibility, a free press may readily become a powerful instrument of injustice.
Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely
flourishes and operates. For we have always strongly maintained, as we do now, that freedom of
expression is mans birthright constitutionally protected and guaranteed, and that it has become the
singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it is also
worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom
does not carry with it an unrestricted hunting license to prey on the ordinary citizen.38
In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld.
With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008, the
Court issued Administrative Circular No. 08-2008, entitled Guidelines in the Observance of a Rule of
Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a preference for the
imposition of a fine rather than imprisonment, given the circumstances attendant in the cases39 cited
therein in which only a fine was imposed by this Court on those convicted of libel. It also states that, if
the penalty imposed is merely a fine but the convict is unable to pay the same, the Revised Penal Code
provisions on subsidiary imprisonment should apply.
However, the Circular likewise allows the court, in the exercise of sound discretion, the option to impose
imprisonment as penalty, whenever the imposition of a fine alone would depreciate the seriousness of
the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice.
In the case at bench, the Court considers the publics speculations as to the whereabouts of Annabelle
Rama Gutierrez with the issuance of the warrant of arrest after her initial conviction for estafa.
Petitioner fueled these speculations through her article. However, her article went overboard and
exceeded the bounds of fair comment. This warrants her conviction. Nonetheless, in light of the
relatively wide latitude given to utterances against public figures such as private complainants, and
consonant with Administrative Circular No. 08-2008, the Court deems it proper to modify the penalty of
imprisonment to a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency,
in each case. But the award of moral damages for each of the private complainants in the amount of
P500,000.00, as ordered by the trial court, should be restored on account of the serious anxiety and the
wounded feelings suffered by complainants from the libelous article, particularly taking into account the
fact that petitioner and the private complainants were on relatively good terms with each other, and
complainants gave no cause or offense which could have provoked the malicious publication.
WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR No. 20890 is
AFFIRMED with the MODIFICATION that in lieu of imprisonment, petitioner Cristinelli S. Fermin is
sentenced to pay a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency,
in each case. The award of moral damages, in the amount of P300,000.00 each in favor of complainants
Annabelle Rama Gutierrez and Eduardo Gutierrez, is increased to P500,000.00. Costs against petitioner.
SO ORDERED.
G.R. No. 143372 December 13, 2005
PHILIPPINE JOURNALISTS, INC. (PEOPLES JOURNAL), ZACARIAS NUGUID, JR. and CRISTINA LEE,
Petitioners, vs.
FRANCIS THOENEN, Respondent.
D E C I S I O N: CHICO-NAZARIO, J.:
For almost a century, this Court has sought that elusive equilibrium between the law on defamation on
one hand, and the constitutionally guaranteed freedoms of speech and press on the other. This case
revisits that search.
On 30 September 1990, the following news item appeared in the Peoples Journal, a tabloid of general
circulation:
Swiss Shoots Neighbors Pets
RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to deport a Swiss who
allegedly shoots wayward neighbors pets that he finds in his domain.
The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis
Thoenen, of 10 Calcutta BF Homes Phase III, could help "prevent the recurrence of such incident in the
future."
Angara explained that house owners could not control their dogs and cats when they slip out of their
dwellings unnoticed.
An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to
exacerbate the problem, Angara said.
Cristina Lee1
The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country
with his Filipina wife and their children. Claiming that the report was false and defamatory, and that the
petitioners acted irresponsibly in failing to verify the truth of the same prior to publication, he filed a civil
case for damages against herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its publisher,
and reporter Cristina Lee.
Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community,
and that since it had been published, he and his wife received several queries and angry calls from
friends, neighbors and relatives. For the impairment of his reputation and standing in the community,
and his mental anguish, Thoenen sought P200,000.00 in moral damages, P100,000.00 in exemplary
damages, and P50,000.00 in attorneys fees.
The petitioners admitted publication of the news item, ostensibly out of a "social and moral duty to
inform the public on matters of general interest, promote the public good and protect the moral public
(sic) of the people," and that the story was published in good faith and without malice.2
The principal source of the article was a letter3 by a certain Atty. Efren Angara addressed to
Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID, now Bureau of
Immigration), which states:
Dear Madame:
We would like to request your office to verify the true status/authenticity of the residency in the
Philippines of a foreign national (a Swiss) by the name of Francis Thoenen who is presently residing at
No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Paraaque, Metro Manila. I received (sic) complaint
from my clients residing around his vicinity that this foreigner had (sic) been causing troubles ever since
he showed up. He is too meticulous and had (sic) been shooting dogs and cats passing his house wall
everytime.
Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their pets slips (sic)
out unnoticed. A confrontation between him and the owner of the dog he shoot, (sic) already occurred
last time. In some instances this guy had been always driving his car barbarously inside the subdivision
with children playing around (sic) the street. Before my clients petitioned themselves with the
endorsement of the Homeowners Association and filed to your office for deportation were respectfully
seeking your assistance to investigate this alien to prevent further incident occurrence (sic) in the future.
He should not be allowed to dominate the citizens of this country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a copy
of the above letter from a trusted source in the CIDs Intelligence Division. They claimed to "have
reasonable grounds to believe in the truth and veracity of the information derived (from their)
sources."4
It was proven at trial that the news article contained several inaccuracies. The headline, which
categorically stated that the subject of the article engaged in the practice of shooting pets, was untrue.5
Moreover, it is immediately apparent from a comparison between the above letter and the news item in
question that while the letter is a mere request for verification of Thoenens status, Lee wrote that
residents of BF Homes had "asked the Bureau of Immigration to deport a Swiss who allegedly shoots
neighbors pets." No complaints had in fact been lodged against him by any of the BF Homeowners,6 nor
had any pending deportation proceedings been initiated against him in the Bureau of Immigration.7
Thoenen also submitted a Certification8 from the Office of the Bar Confidant that there was no lawyer in
its rolls by the name of Efren Angara, earlier cited by petitioner Lee as the author of the letter on which
she based her article. Finally, the trial also showed that despite the fact that respondents address was
indicated in the letter, Cristina Lee made no efforts to contact either him or the purported letter-writer,
Atty. Angara.9
The petitioners claim that Lee sought confirmation of the story from the newspapers correspondent in
Paraaque, who told her that a woman who refused to identify herself confirmed that there had indeed
been an incident of pet-shooting in the neighborhood involving the respondent.10 However, the
correspondent in question was never presented in court to verify the truth of this allegation. Neither was
the alleged CID source presented to verify that the above letter had indeed come from the Department,
nor even that the same was a certified true copy of a letter on file in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision11 in favor of
the petitioners, which reads in part:
There is no malice on the part of the defendants in publishing the news item done in the exercise of their
profession as journalists reporting to the people on matters of public interest. The news report was
based on an official communication filed with the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No. 27086, September 30, 1991, which
is similar to the present case:
While indeed, the news item subject of the present case might have ruffled the sensitivities of plaintiff,
this Court however believes that the alleged defamatory articles falls within the purview of a qualifiedly
privileged matter, and that therefore, it cannot be presumed to be malicious. The onus of proving malice
is accordingly shifted to the plaintiff, that is, that he must prove that the defendants were actuated by ill-
will in what they caused to be printed and published, with a design to carelessly or wantonly injure the
plaintiff. (US vs. Bustos, et al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT PRONOUNCEMENT AS TO COSTS.12
On appeal, the court a quo reversed13 the trial court. It held that although freedom of expression and
the right of speech and of the press are among the most zealously guarded in the Constitution, still, in
the exercise of these rights, Article 19 of the Civil Code requires everyone to "act with justice, give
everyone his due, and observe honesty and good faith." The appellate court emphasized that Thoenen
was neither a public official nor a public figure, and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item published in the 30
September 1990 edition of Peoples Journal had been done in violation of the principle of abuse of right
under Article 19 of the Civil Code, in the absence of a bona fide effort to ascertain the truth thereof, i.e.,
"to observe honesty and good faith," which makes their act a wrongful omission. Neither did they "act
with justice and give everyone his due," because without ascertaining the veracity of the information
given them by the Intelligence Bureau of the Bureau of Immigration, they published a news article which
they were aware would bring the person specifically named therein, viz, Francis Thoenen, the plaintiff-
appellant in this case, into disrepute.
WHEREFORE, the foregoing considered, the Decision appealed from is hereby REVERSED and SET ASIDE.
In its stead, We find for the appellant and award him moral damages of P200,000.00; exemplary
damages of P50,000.00, and legal fees to P30,000.00; all of which shall be borne jointly and severally by
appellees.14
Petitioners motion for reconsideration having been denied,15 this petition for certiorari under Rule 45
of the 1997 Rules of Civil Procedure was filed on the following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI liable under Article
19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel even if the article was based on a
letter released by the Bureau of Immigration, hence a qualified privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth of the subject
news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the same was excessive
unconscionable and devoid of any basis.
The petitioners argue that this case is one for damages arising from libel, and not one for abuse of rights
under the New Civil Code. They further claim the constitutional protections extended by the freedom of
speech and of the press clause of the 1987 Constitution against liability for libel, claiming that the article
was published in fulfillment of its social and moral duty to inform the public "on matters of general
interest, promote the public good and protect the moral [fabric] of the people."16 They insist that the
news article was based on a letter released by the Bureau of Immigration, and is thus a qualifiedly
privileged communication. To recover damages, the respondent must prove its publication was attended
by actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was
false or not.17
For the reasons stated below, we hold that the constitutional privilege granted under the freedom of
speech and the press against liability for damages does not extend to the petitioners in this case.
The freedom of speech and of the press is not absolute. The freedom of speech and press and assembly,
first laid down by President McKinley in the Instruction to the Second Philippine Commission of 07 April
1900, is an almost verbatim restatement of the first amendment of the Constitution of the United
States.18 Enshrined in Section 4, Article III of the Bill of Rights of the 1987 Constitution, it states, "No law
shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances."
But not all speech is protected. "The right of free speech is not absolute at all times and under all
circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or fighting words - those which by their
very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality." 19
Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as "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 cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead."
For an imputation to be libelous, the following requisites must be met: (a) the allegation of a
discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.20 In Vasquez v. Court of Appeals,21 we had occasion to further
explain. Thus:
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the
possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance
which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of
one who is dead.
There is publication if the material is communicated to a third person. It is not required that the person
defamed has read or heard about the libelous remark. What is material is that a third person has read or
heard the libelous statement, for "a mans reputation is the estimate in which others hold him, not the
good opinion which he has of himself."
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person
or a stranger was able to identify him as the object of the defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:
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
security 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. (citations omitted, emphasis supplied)
In this case, there is no controversy as to the existence of the three elements. The respondents name
and address were clearly indicated in the article ascribing to him the questionable practice of shooting
the wayward pets of his neighbors. The backlash caused by the publication of the article was in fact such
that stones had been thrown at their house, breaking several flower pots, and daily and nightly calls
compelled him to request a change of their telephone number.22 These facts are not contested by the
petitioners. What the petitioners claim is the absence of proof of the fourth element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity. - 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.
The article is not a privileged communication. We first discussed the freedom of speech and press and
assembly vis-a-vis the laws on libel and slander in the groundbreaking case of US v. Bustos,23 where we
applied the prevailing English and American jurisprudence to the effect that:
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a
hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus
can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize
defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for
the common good? Rising superior to any official, or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary - to any or all the agencies of Government - public opinion should be the
constant source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly administration of
government inevitably lead to the adoption of the doctrine of privileged communication. "A privileged
communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if the author has acted in bad faith. An
example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress from
liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory imputations are not actionable unless
found to have been made without good intention or justifiable motive. To this genre belong private
communications and fair and true report without any comments or remarks."24
The appellate court correctly ruled that the petitioners story is not privileged in character, for it is
neither "private communication" nor a fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: "A communication made bona fide
upon any subject-matter in which the party communicating has an interest, or in reference to which he
has a duty, is privileged, if made to a person having a corresponding interest or duty, although it
contained criminatory matter which without this privilege would be slanderous and actionable. A
pertinent illustration of the application of qualified privilege is a complaint made in good faith and
without malice in regard to the character or conduct of a public official when addressed to an officer or a
board having some interest or duty in the matter."25
This defense is unavailing to petitioners. In Daez v. Court of Appeals26 we held that:
As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of public
officials, which comes to his notice, to those charged with supervision over them. Such a communication
is qualifiedly privileged and the author is not guilty of libel. The rule on privilege, however, imposes an
additional requirement. Such complaints should be addressed solely to some official having jurisdiction
to inquire into the charges, or power to redress the grievance or has some duty to perform or interest in
connection therewith. (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged
communication, it lost its character as such when the matter was published in the newspaper and
circulated among the general population. A written letter containing libelous matter cannot be classified
as privileged when it is published and circulated in public,27 which was what the petitioners did in this
case.

Neither is the news item a fair and true report without any comments or remarks of any judicial,
legislative or other official proceedings; there is in fact no proceeding to speak of. Nor is the article
related to any act performed by public officers in the exercise of their functions, for it concerns only false
imputations against Thoenen, a private individual seeking a quiet life.
The petitioners also claim to have made the report out of a "social and moral duty to inform the public
on matters of general interest."
In Borjal v. Court of Appeals, we stated that "the enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair commentaries on matters of public interest are likewise
privileged. We stated that the doctrine of fair commentaries 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."28
Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual,
and not a public official or public figure. We are persuaded by the reasoning of the United States
Supreme Court in Gertz v. Robert Welch, Inc.,29 that a newspaper or broadcaster publishing defamatory
falsehoods about an individual who is neither a public official nor a public figure may not claim a
constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of
public interest.30
Having established that the article cannot be considered as privileged communication, malice is
therefore presumed, and the fourth requisite for the imputation of libel to attach to the petitioners in
this case is met. The news article is therefore defamatory and is not within the realm of protected
speech. There is no longer a need to discuss the other assignment of errors, save for the amount of
damages to which respondent is entitled.
In Policarpio v. Manila Times Publishing Co., Inc.,31 we awarded damages where the defendants
deliberately presented a private individual in a worse light that what she actually was, and where other
factual errors were not prevented although defendants had the means to ascertain the veracity of their
report. Such are the facts obtaining here.
We must point out that Lees brief news item contained falsehoods on two levels. On its face, her
statement that residents of BF Homes had "asked the Bureau of Immigration to deport a Swiss who
allegedly shoots neighbors pets" is patently untrue since the letter of the spurious Atty. Angara was a
mere request for verification of Thoenens status as a foreign resident. Lees article, moreover, is also
untrue, in that the events she reported never happened. The respondent had never shot any of his
neighbors pets, no complaints had been lodged against him by his neighbors, and no deportation
proceedings had been initiated against him. Worse, the author of Lees main source of information, Atty.
Efren Angara, apparently either does not exist, or is not a lawyer. Petitioner Lee would have been
enlightened on substantially all these matters had she but tried to contact either Angara or Thoenen.
Although it has been stressed that a newspaper "should not be held to account to a point of suppression
for honest mistakes, or imperfection in the choice of words,"32 even the most liberal view of free speech
has never countenanced the publication of falsehoods, especially the persistent and unmitigated
dissemination of patent lies.33 "There is no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances societys interest in uninhibited, robust, and
wide-open debate."34 The use of the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which economic, social, or political change is to
be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality The knowingly
false statement and the false statement made with reckless disregard of the truth, do not enjoy
constitutional protection" (citations omitted).35
The legitimate state interest underlying the law of libel is the compensation of the individuals for the
harm inflicted upon them by defamatory falsehood. After all, the individuals right to protection of his
own good name "reflects no more than our basic concept of the essential dignity and worth of every
human being a concept at the root of any decent system of ordered liberty."36
The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of
P50,000.00 and legal fees of P30,000.00, to be borne jointly and severally by the herein petitioners. In
Guevarra v. Almario,37 we noted that the damages in a libel case must depend upon the facts of the
particular case and the sound discretion of the court, although appellate courts were "more likely to
reduce damages for libel than to increase them."38 So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision of the
Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED, subject to the
modification that petitioners are ordered to pay, jointly and severally, moral damages in the sum of
P100,000.00, exemplary damages of P30,000.00, and legal fees of P20,000.00. No costs.
SO ORDERED.
COMPILED CASES:
G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a
person can connect to the internet, a system that links him to other computers and enable him, among
other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for
special audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace technology
for mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him that people can
read.
And because linking with the internet opens up a user to communications from others, the ill-motivated
can use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account
or credit card or defrauding him through false representations. The wicked can use the cyberspace, too,
for illicit trafficking in sex or for exposing to pornography guileless children who have access to the
internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or computer
programs and memories of innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs, and memories. The
government certainly has the duty and the right to prevent these tomfooleries from happening and
punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts that
the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and
prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9,
2012, enjoining respondent government agencies from implementing the cybercrime law until further
orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would enable
the government to track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on
the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful
in determining the constitutionality of laws that tend to target a class of things or persons. According to
this standard, a legislative classification that impermissibly interferes with the exercise of fundamental
right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The
burden is on the government to prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest.2 Later, the strict scrutiny
standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as
well as other fundamental rights, as expansion from its earlier applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially
a condemnable act accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who
employ tools and techniques used by criminal hackers but would neither damage the target systems nor
steal information. Ethical hackers evaluate the target systems security and report back to the owners
the vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers
are the equivalent of independent auditors who come into an organization to verify its bookkeeping
records.5
Besides, a clients engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6 Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and
deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading
the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the
things that belong to others, in this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other
peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9
or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond
the boundaries of what is proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of ones
constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set
of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a
personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who
use aliases or take the name of another in satire, parody, or any other literary device. For example,
supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would
punish for cyber-squatting both the person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it happens to be his real name. Petitioners
claim that, considering the substantial distinction between the two, the law should recognize the
difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or
use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The
law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the
same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:x x x x
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against unreasonable searches and seizures.13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon"15 the relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
isimpermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how government effort to curb
computer-related identity theft violates the right to privacy and correspondence as well as the right to
due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since
the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data
of another. There is no fundamental right to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would
be hindered from accessing the unrestricted user account of a person in the news to secure information
about him that could be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the
press, whether in quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may be a
form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-
Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in
prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design
involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no
other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the
property rights of individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate
white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction
that makes it apply only to persons engaged in the business of maintaining, controlling, or operating,
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a
computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA)
to cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a computer system. Actually,
ACPAs definition of child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace.
But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is
rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece
of child pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable
for producing child pornography but one who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and
abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully
challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial electronic
communication with the use of computer system which seeks to advertise, sell, or offer for sale products
and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from
the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient
to reject receipt of further commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise the source of the electronic
message; and
(cc) The commercial electronic communication does not purposely include misleading information in any
part of the message in order to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as "spam."
The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats
the same sentence or comment was said to be making a "spam." The term referred to a Monty Pythons
Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading
options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owners
peaceful enjoyment of his property. Transmitting spams amounts to trespass to ones privacy since the
person sending out spams enters the recipients domain without prior permission. The OSG contends
that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people
might have interest in such ads. What matters is that the recipient has the option of not opening or
reading these mail ads. That is true with spams. Their recipients always have the option to delete or not
to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which
is not accorded the same level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is 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 cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. 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.
Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision correccional in its minimum and medium periods or a
fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in
the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for conviction.38
Petitioners argue that inferring "presumed malice" from the accuseds defamatory statement by virtue
of Article 354 of the penal code infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even where the offended parties happened to be public
figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the
truth of the statement he published. Gross or even extreme negligence is not sufficient to establish
actual malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict the
author of a defamatory statement where the offended party is a public figure. Societys interest and the
maintenance of good government demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher
standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel
against complainants who were public figures. Actually, the Court found the presence of malice in fact in
that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself,
but there was also malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures
in the above case, cinema and television personalities, when it modified the penalty of imprisonment to
just a fine of P6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
countrys obligations under the International Covenant of Civil and Political Rights (ICCPR). They point
out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an
all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence
to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related
to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes
it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code
provisions on libel were enacted. The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense,
they are a world apart in terms of quickness of the readers reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet users. Whether these
reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation
to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes.
It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence sufficiently
delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General
argues that plain, ordinary, and common usage is at times sufficient to guide law enforcement agencies
in enforcing the law.51 The legislature is not required to define every single word contained in the laws
they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering
in the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged countries for social networking.56 Social networking sites build
social relations among people who, for example, share interests, activities, backgrounds, or real-life
connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an
open book of who they are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a photo, or a video on
Facebook, which can be made visible to anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the programs
screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same, such as "This is great!"
When a Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of digital contentwhich could be in the form of
text, pictures, links, short videos, or other mediaon the internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular users posts, enabling them to read the same, and
"Following," those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just
reposting or republishing another persons tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet caf that may have provided the computer used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose
Maria (a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an
illicit affair with a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes,
this is so true! They are so immoral." Marias original post is then multiplied by her friends and the
latters friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to
both Maria and Linda, comes across this blog, finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nenas "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts
this on her Facebook account. Immediately, Pamelas Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on
it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if
Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a
crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and
his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal
charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its
unique circumstances and culture, such law will tend to create a chilling effect on the millions that use
this new medium of communication in violation of their constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a
case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1)
the knowing transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use
of an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom
of speech for being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of censoring
speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the
statute, it unquestionably silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not be overly broad. The
CDAs burden on protected speech cannot be justified if it could be avoided by a more carefully drafted
statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild
to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a persons reputation and peace of mind, cannot adopt means
that will unnecessarily and broadly sweep, invading the area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and with
it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting"
constitute broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law that
punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-
for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must
view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as these doctrines are used to mount facial challenges to
penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely
on the violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is
inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In
this case, the particularly complex web of interaction on social media websites would give law enforcers
such latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking
it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain whether or not one netizens comment aided
and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new
defamatory story against Armand like "He beats his wife and children," then that should be considered
an original posting published on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacksthe exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any
action voluntarily taken in good faith to restrict access to or availability of material that the provider or
user considers to be obscene...whether or not such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this information.70 As the
source of this information, is the user aiding the distribution of this communication? The legislature
needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect on the freedom of expression, especially since
the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted
to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section
4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-
related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
partys computer system but the security employed by the systems lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to use
these because the system supervisor is alerted.72 If Section 5 that punishes any person who willfully
attempts to commit this specific offense is not upheld, the owner of the username and password could
not file a complaint against him for attempted hacking. But this is not right. The hacker should not be
freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt
to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as
well as the actors aiding and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the
case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As
the Solicitor General points out, there exists a substantial distinction between crimes committed through
the use of information and communications technology and similar crimes committed using other
means. In using the technology in question, the offender often evades identification and is able to reach
far more victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised
Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each crime involves some
important act which is not an essential element of the other.74 With the exception of the crimes of
online libel and online child pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other
a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and
the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime
but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as
another means of publication.75 Charging the offender under both laws would be a blatant violation of
the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPAs
scope so as to include identical activities in cyberspace. As previously discussed, ACPAs definition of
child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage
incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act
of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not
exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at
least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is
not diluted or improperly wielded simply because at some prior time the act or omission was but an
element of another offense or might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce and
the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that
data showing where digital messages come from, what kind they are, and where they are destined need
not be incriminating to their senders or recipients before they are to be protected. Petitioners invoke the
right of every individual to privacy and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations affecting
privacy rights, courts should balance the legitimate concerns of the State against constitutional
guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to
put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm
of reason that the government should be able to monitor traffic data to enhance its ability to combat all
sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt
legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It empowers
law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of accessing a computer system without right,84
transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred places that
provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber criminals can quickly erase
their tracks. Those who peddle child pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the peoples right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not intrude, and that there
exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter rightthe right to informational privacythat
those who oppose government collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information disclosed, and the right
to live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to
the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one
claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one society is prepared to
accept as objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all sorts
of electronic devices to communicate with one another. Consequently, the expectation of privacy is to
be measured from the general publics point of view. Without reasonable expectation of privacy, the
right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone
number of his recipient, accompanying the message sent. It is this information that creates the traffic
data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing
it closed, and sending it through the postal service. Those who post letters have no expectations that no
one will read the information appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated, what
kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data,
etc.), where the packet is going, and how the packet fits together with other packets.93 The difference is
that traffic data sent through the internet at times across the ocean do not disclose the actual names
and addresses (residential or office) of the sender and the recipient, only their coded internet protocol
(IP) addresses. The packets travel from one computer system to another where their contents are pieced
back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service providers
communications system will put his voice message into packets and send them to the other persons
cellphone where they are refitted together and heard. The latters spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals his cellphone number to the
service provider when he puts his call through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the 70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to
recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain
traffic data that are needed for a successful cyberspace communication. The conveyance of this data
takes them out of the private sphere, making the expectation to privacy in regard to them an
expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic
data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can
then be used to create profiles of the persons under surveillance. With enough traffic data, analysts may
be able to determine a persons close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be disclosed, and clearly
falls within matters protected by the right to privacy. But has the procedure that Section 12 of the law
provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or
electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of
the police. Replying to this, the Solicitor General asserts that Congress is not required to define the
meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due
cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not
even bother to relate the collection of data to the probable commission of a particular crime. It just says,
"with due cause," thus justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used
to build up a case against an identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While
it says that traffic data collection should not disclose identities or content data, such restraint is but an
illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands
from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time"
because it is not possible to get a court warrant that would authorize the search of what is akin to a
"moving vehicle." But warrantless search is associated with a police officers determination of probable
cause that a crime has been committed, that there is no opportunity for getting a warrant, and that
unless the search is immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law could be better served by providing for more robust
safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section
12 is of course not enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical or
even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian society."96 The Court must ensure that
laws seeking to take advantage of these technologies be written with specificity and definiteness as to
ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved for six
(6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored by a service provider is used as evidence in a case,
the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a form
of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users
from accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider has
an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date of the transaction
and those relating to content data for at least six months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not unduly hamper the normal transmission or use of
the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscribers
information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours
from receipt of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to
issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the
functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search,
seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat
on the rights of the person from whom they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and
15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear
up the service providers storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination
violates the users right against deprivation of property without due process of law. But, as already
stated, it is unclear that the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted them preserved, he should
have saved them in his computer when he generated the data or received it. He could also request the
service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the service
providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer
data under its control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is
not enough for him to be of the opinion that such content violates some law, for to do so would make
him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime
law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829
with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law
enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102
Section 20 necessarily incorporates elements of the offense which are defined therein. If Congress had
intended for Section 20 to constitute an offense in and of itself, it would not have had to make reference
to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There
must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and
justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission
of cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate
guidelines or limitations in the law to determine the boundaries of the delegates authority and prevent
the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and users assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued
warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration
of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the
post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D
and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4)
on online Libel.1wphi1

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and
combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been
considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy;
as well as
2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith
to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging
to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity
for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal
Code are committed with the use of information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic
data and subscriber information as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;