Thursday, March 24, 2011

Libel and free speech

In a free society like ours, there is a constant clash between the right to free speech and the right to protect one’s reputation. And when this clash lands on the doorsteps of our courts, judges sometimes find themselves constrained to draw a fine line between the two. The most complicated of all is when the opposing rights involve a matter of public interest.

The 20-million peso libel suit of Pampanga Chamber of Commerce (Pan-Cham) President Rene Romero against veteran Pampanga journalist Bong Lacson is one such case, wherein the trier of facts and law will have to carefully distinguish between what is constitutionally protected speech and plain and simple defamation.

Libel, which is the publication of defamatory statements that damages a person’s reputation, could either be on a private or public matter. If it is on a private matter, as when it involves a private person or purely private concern, the law presumes every defamatory imputation to be malicious and, therefore, actionable.

But when the defamatory statements involve a public official or a matter of public interest, the complainant must prove malice to become successful. This is in consonance with the freedom of speech guarantee under the Constitution, which protects speech on matters of public interest.

Malice has been defined in the US case of New York Times v. Sullivan as knowledge of the falsity of one’s statements or reckless disregard as to whether or not they are true. In other words, one knows that his statements are false or entertains serious doubts as to their truthfulness, but nevertheless makes the statements.

In the landmark 1999 case of Borjal v. Court of Appeals, our own Supreme Court further defined malice as the presence of spite or ill will; when a person acts not out of response to duty, but for some unjustifiable motives or bad intentions. In that case, the Court exonerated Philippine Star columnist Art Borjal of libel upon finding that he acted out of a sense of civic duty and in the performance of his job as a newspaperman in exposing alleged anomalies in the government.

The Romero libel suit appears to involve a matter of public interest: the Most Outstanding Kapampangan Award (MOKA) – a highly publicized and much anticipated yearly event in Pampanga, wherein awards of recognition are conferred to Pampangueños who have made significant achievements in various fields of endeavor or contributions to the community. If the court finds Lacson’s article as one involving a matter of public interest, it would have to determine the presence of malice to make him liable for libel.

It should be noted that under the doctrine of constitutional defamation, the fact that the defamatory statements are false or erroneous will not necessarily give rise to liability for libel. In the words of Borjal, “[e]ven assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate . . . There must be some room for misstatement of fact as well as for misjudgment.”

It is clear then that when matters of public interest are involved, the Constitution allows greater leeway for speech. As Justice Brennan eloquently said in New York Times, "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 the government and public officials.” (Emphasis added).

This, of course, does not mean conferment of an unbridled license to defame. If the offending words are made with malice, the speaker or writer could still be held liable. For in such case, the objective is no longer to create or invite discussion on issues of public interest, but to attack the character of another under the guise of free speech or press freedom.

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