Civil actions for defamation work better

The kinds of speech that are actually deterred by libel law are more valuable than the state interest that is sought to be protected by the crime. Besides, there are less draconian alternatives which have very minimal impact on the public’s fundamental right of expression. Civil actions for defamation do not threaten the public’s fundamental right to free speech. They narrow its availability such that there is no unnecessary chilling effect on criticisms of public officials or policy. They also place the proper economic burden on the complainant and, therefore, reduce the possibility that they be used as tools to harass or silence dissenters. Read more: Justice Leonen (February 14, 2014). DISSENTING AND CONCURRING OPINION. Disini v. Justice Secretary. G.R. No. 203335. Pages 63-70. purposes of criminalizing libel come to better light when we review its history. The Supreme Court has had the opportunity to trace its historical development. Guingguing v. Court of Appeals narrated:
Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the landmark opinion of England's Star Chamber in the Libelis Famosis case in 1603, two major propositions in the prosecution of defamatory remarks were established: first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. These propositions were due to the fact that the law of defamatory libel was developed under the common law to help government protect itself from criticism and to provide an outlet for individuals to defend their honor and reputation so they would not resort to taking the law into their own hands. 
Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious libel in the then English colony of New York. Zenger, the publisher of the New-York Weekly Journal, had been charged with seditious libel, for his paper’s consistent attacks against Colonel William Cosby, the Royal Governor of New York. In his defense, Zenger’s counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby were “the right of every free-born subject to make when the matters so published can be supported with truth.” The jury, by acquitting Zenger, acknowledged albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune from criticism. 
The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the American democratic ideal. It has been characterized as the first landmark in the tradition of a free press, then a somewhat radical notion that eventually evolved into the First Amendment in the American Bill of Rights and also proved an essential weapon in the war of words that led into the American War for Independence. 
Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall pass no law abridging the freedom of speech. The notorious Alien and Sedition Acts of 1798 made it a crime for any person who, by writing, speaking or printing, should threaten an officer of the government with damage to his character, person, or estate. The law was passed at the insistence of President John Adams, whose Federalist Party had held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the Jeffersonian Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The Acts were never challenged before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration. 
The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously opined, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.
It was in that case where the court noted the history of early American media that focused on a “mad dog rhetoric” approach. This, in turn, led the court to conclude that “[t]hese observations are important in light of the misconception that freedom of expression extends only to polite, temperate, or reasoned expression. x x x Evidently, the First Amendment was designed to protect expression even at its most rambunctious and vitriolic form as it had prevalently taken during the time the clause was enacted.”

The case that has defined our understanding of the concept of modern libel – the New York Times Co. v. Sullivan – then followed. As discussed earlier, the New York Times case required proof of actual malice when a case for defamation “includes matters of public concern, public men, and candidates for office.”

The cases of Garrison v. Louisiana, and Curtis Publishing Co. v. Butts both expanded the New York Times’ actual malice test to public officials and public figures, respectively. Read more: Justice Leonen (February 14, 2014). DISSENTING AND CONCURRING OPINION. Disini v. Justice Secretary. G.R. No. 203335. Pages 63-70.

Libel in the Philippines first emerged during the Spanish colonial times. The Spanish Penal Code criminalized “rebellion, sedition, assaults, upon persons in authority, and their agents, and contempts, insults, injurias, and threats against persons in authority and insults, injurias, and threats against their agents and other public officers.”201 Thus, noting the developments in both the Spanish and American colonial periods, it was correctly observed that:
The use of criminal libel to regulate speech – especially speech critical of foreign rule or advocating Philippine independence – was a feature of both the Spanish and American colonial regimes. The Spanish Penal Code and the Penal Code of the Philippines made insult and calumny a crime. In the early 1900s, the Philippine Commission (whose members were all appointed by the President of the United States) punished both civil and criminal libel under Act No. 277, one of its earliest laws.
During the American occupation, Governor-General William Howard Taft explained how “libel was made into a criminal offense in the Philippines because ‘the limitations of free speech are not very well understood’ unlike in the US’”203 Then came the case of U.S. v. Ocampo, 204 where Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, and Faustino Aguilar were charged with libel in connection with the publication of the article “Birds of Prey” in the newspaper El Renacimiento. The article allegedly defamed Philippine Commission member and Interior Secretary Mr. Dean C. Worcester. The court affirmed the conviction of Ocampo and Kalaw stating that there were no justifiable motives found in the publication of the article.

In essence, Philippine libel law is “a ‘fusion’ of the Spanish law on defamacion and the American law on libel.” It started as a legal tool to protect government and the status quo. The bare text of the law had to be qualified through jurisprudential interpretation as the fundamental right to expression became clearer. In theory, libel prosecution has slowly evolved from protecting both private citizens and public figures to its modern notion of shielding only private parties from defamatory utterances.

But, a survey of libel cases during the past two (2) decades will reveal that the libel cases that have gone up to the Supreme Court generally involved notable personalities for parties. Relatively, libel cases that involve private parties before the Supreme Court are sparse. Dean Raul Pangalangan, former dean of the University of the Philippines College of Law and now publisher of the Philippine Daily Inquirer, observed that “libel cases are pursued to their conclusion mainly by public figures, x x x [since those filed] by private persons are settled amicably before the prosecutor.” Among the cases that reached the Supreme Court were those involving offended parties who were electoral candidates, ambassadors and business tycoons, lawyers, actors or celebrities, corporations, 213 and, public officers. Even court officials have been involved as complainants in libel cases.215

This attests to the propensity to use the advantages of criminal libel by those who are powerful and influential to silence their critics. Without doubt, the continuous evolution and reiteration of the jurisprudential limitations in the interpretation of criminal libel as currently worded has not been a deterrent. The present law on libel as reenacted by Section 4(c)(4) of Rep. Act No. 10175 will certainly do little to shield protected speech. This is clear because there has been no improvement in statutory text from its version in 1930.

Libel law now is used not so much to prosecute but to deter speech. What is charged as criminal libel may contain precious protected speech. There is very little to support the view of the majority that the law will not continue to have this effect on speech.

The Court has adopted the American case of Garrison v. Louisiana, albeit qualifiedly, in recognizing that there is an “international trend in diminishing the scope, if not the viability, of criminal libel prosecutions.” Garrison struck down the Louisiana Criminal Defamation Statute and held that the statute incorporated constitutionally invalid standards when it came to criticizing or commenting on the official conduct of public officials.

It is time that we now go further and declare libel, as provided in the Revised Penal Code and in the Cybercrime Prevention Act of 2012, as unconstitutional.

This does not mean that abuse and unwarranted attacks on the reputation or credibility of a private person will not be legally addressed. The legal remedy is civil in nature and granted in provisions such as the Chapter on Human Relations in the Civil Code, particularly Articles 19, 20, and 21.

In a civil action, the complainant decides what to allege in the complaint, how much damages to request, whether to proceed or at what point to compromise with the defendant. Whether reputation is tarnished or not is a matter that depends on the toleration, maturity, and notoriety of the person involved. Varying personal thresholds exists. Various social contexts will vary at these levels of toleration. Sarcasm, for instance, may be acceptable in some conversations but highly improper in others.

In a criminal action, on the other hand, the offended party does not have full control of the case. He or she must get the concurrence of the public prosecutor as well as the court whenever he or she wants the complaint to be dismissed. The state, thus, has its own agency. It will decide for itself through the prosecutor and the court.

Criminalizing libel imposes a standard threshold and context for the entire society. It masks individual differences and unique contexts. Criminal libel, in the guise of protecting reputation, makes differences invisible.

Libel as an element of civil liability makes defamation a matter between the parties. Of course, because trial is always public, it also provides for measured retribution for the offended person. The possibility of being sued also provides for some degree of deterrence.

The state’s interest to protect private defamation is better served with laws providing for civil remedies for the affected party. It is entirely within the control of the offended party. The facts that will constitute the cause of action will be narrowly tailored to address the perceived wrong. The relief, whether injunctive or in damages, will be appropriate to the wrong.

Declaring criminal libel as unconstitutional, therefore, does not mean that the state countenances private defamation. It is just consistent with our democratic values. Read more: Justice Leonen (February 14, 2014). DISSENTING AND CONCURRING OPINION. Disini v. Justice Secretary. G.R. No. 203335. Pages 63-70.