G.R. No.

170338 December 23, 2008

VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION,
PUBLIC ORDER AND SAFETY,
x - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 179275 December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,
vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
D E C I S I O N
More than three years ago, tapes ostensibly containing a wiretapped conversation
purportedly between the President of the Philippines and a high-ranking official of the
Commission on Elections (COMELEC) surfaced. They captured unprecedented public
attention and thrust the country into a controversy that placed the legitimacy of the
present administration on the line, and resulted in the near-collapse of the Arroyo
government. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly
contained the Presidents instructions to COMELEC Commissioner Virgilio Garcillano
to manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by
committees of both Houses of Congress.
1

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader
Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in
motion a congressional investigation jointly conducted by the Committees on Public
Information, Public Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms (respondent House
Committees). During the inquiry, several versions of the wiretapped conversation
emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director
Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director
Samuel Ong submitted to the respondent House Committees seven alleged "original"
tape recordings of the supposed three-hour taped conversation. After prolonged and
impassioned debate by the committee members on the admissibility and authenticity
of the recordings, the tapes were eventually played in the chambers of the House.
2

On August 3, 2005, the respondent House Committees decided to suspend the
hearings indefinitely. Nevertheless, they decided to prepare committee reports based
on the said recordings and the testimonies of the resource persons.
3

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with
this Court a Petition for Prohibition and Injunction, with Prayer for Temporary
Restraining Order and/or Writ of Preliminary Injunction
4
docketed as G.R. No. 170338.
He prayed that the respondent House Committees be restrained from using these
tape recordings of the "illegally obtained" wiretapped conversations in their committee
reports and for any other purpose. He further implored that the said recordings and
any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in
any of the House proceedings.
5

Without reaching its denouement, the House discussion and debates on the "Garci
tapes" abruptly stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the
slumbering issue with a privilege speech, "The Lighthouse That Brought Darkness." In
his discourse, Senator Lacson promised to provide the public "the whole unvarnished
truth the whats, whens, wheres, whos and whys" of the alleged wiretap, and
sought an inquiry into the perceived willingness of telecommunications providers to
participate in nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to
the Senate Committee on National Defense and Security, chaired by Senator Rodolfo
Biazon, who had previously filed two bills
6
seeking to regulate the sale, purchase and
use of wiretapping equipment and to prohibit the Armed Forces of the Philippines
(AFP) from performing electoral duties.
7

In the Senates plenary session the following day, a lengthy debate ensued when
Senator Richard Gordon aired his concern on the possible transgression of Republic
Act (R.A.) No. 4200
8
if the body were to conduct a legislative inquiry on the matter. On
August 28, 2007, Senator Miriam Defensor-Santiago delivered a privilege speech,
articulating her considered view that the Constitution absolutely bans the use,
possession, replay or communication of the contents of the "Hello Garci" tapes.
However, she recommended a legislative investigation into the role of the Intelligence
Service of the AFP (ISAFP), the Philippine National Police or other government
entities in the alleged illegal wiretapping of public officials.
9

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired
justices of the Court of Appeals, filed before this Court a Petition for Prohibition with
Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction,
10
docketed as G.R. No. 179275, seeking to bar the Senate from conducting
its scheduled legislative inquiry. They argued in the main that the intended legislative
inquiry violates R.A. No. 4200 and Section 3, Article III of the Constitution.
11

As the Court did not issue an injunctive writ, the Senate proceeded with its public
hearings on the "Hello Garci" tapes on September 7,
12
17
13
and October 1,
14
2007.
Intervening as respondents,
15
Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C.
Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S.
Madrigal and Antonio F. Trillanes filed their Comment
16
on the petition on September
25, 2007.
The Court subsequently heard the case on oral argument.
17

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of
the resource persons summoned by the Senate to appear and testify at its hearings,
moved to intervene as petitioner in G.R. No. 179275.
18

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and
179275.
19

It may be noted that while both petitions involve the "Hello Garci" recordings, they
have different objectivesthe first is poised at preventing the playing of the tapes in the
House and their subsequent inclusion in the committee reports, and the second seeks
to prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R.
No. 179275.
- I -
Before delving into the merits of the case, the Court shall first resolve the issue on the
parties standing, argued at length in their pleadings.
In Tolentino v. COMELEC,
20
we explained that "[l]egal standing or locus standi refers
to a personal and substantial interest in a case such that the party has sustained or
will sustain direct injury because of the challenged governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that
he has personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government; (2) the injury is fairly traceable
to the challenged action; and (3) the injury is likely to be redressed by a
favorable action.
21

The gist of the question of standing is whether a party has "alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."
22

However, considering that locus standi is a mere procedural technicality, the Court, in
recent cases, has relaxed the stringent direct injury test. David v. Macapagal-
Arroyo
23
articulates that a "liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings."
24
The fairly recent Chavez
v. Gonzales
25
even permitted a non-member of the broadcast media, who failed to
allege a personal stake in the outcome of the controversy, to challenge the acts of the
Secretary of Justice and the National Telecommunications Commission. The majority,
in the said case, echoed the current policy that "this Court has repeatedly and
consistently refused to wield procedural barriers as impediments to its addressing and
resolving serious legal questions that greatly impact on public interest, in keeping with
the Courts duty under the 1987 Constitution to determine whether or not other
branches of government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them."
26

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by
alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was
publicly identified by the members of the respondent committees as one of the voices
in the recordings.
27
Obviously, therefore, petitioner Garcillano stands to be directly
injured by the House committees actions and charges of electoral fraud. The Court
recognizes his standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging
that they are concerned citizens, taxpayers, and members of the IBP. They are of the
firm conviction that any attempt to use the "Hello Garci" tapes will further divide the
country. They wish to see the legal and proper use of public funds that will necessarily
be defrayed in the ensuing public hearings. They are worried by the continuous
violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid
of legislation.
28

Intervenor Sagge alleges violation of his right to due process considering that he is
summoned to attend the Senate hearings without being apprised not only of his rights
therein through the publication of the Senate Rules of Procedure Governing Inquiries
in Aid of Legislation, but also of the intended legislation which underpins the
investigation. He further intervenes as a taxpayer bewailing the useless and wasteful
expenditure of public funds involved in the conduct of the questioned hearings.
29

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the
laws and that intervenor Sagge asserts his constitutional right to due process,
30
they
satisfy the requisite personal stake in the outcome of the controversy by merely being
citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House of Representatives,
31
we
find sufficient petitioners Ranadas and Agcaoilis and intervenor Sagges allegation
that the continuous conduct by the Senate of the questioned legislative inquiry will
necessarily involve the expenditure of public funds.
32
It should be noted that
inFrancisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been
injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably
invoked the vindication of their own rightsas taxpayers, members of Congress,
citizens, individually or in a class suit, and members of the bar and of the legal
professionwhich were also supposedly violated by the therein assailed
unconstitutional acts.
33

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and
intervenor Sagge advance constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as precedents. The issues are
of transcendental and paramount importance not only to the public but also to the
Bench and the Bar, and should be resolved for the guidance of all.
34

Thus, in the exercise of its sound discretion and given the liberal attitude it has shown
in prior cases climaxing in the more recent case of Chavez, the Court recognizes the
legal standing of petitioners Ranada and Agcaoili and intervenor Sagge.
- II -
The Court, however, dismisses G.R. No. 170338 for being moot and academic.
Repeatedly stressed in our prior decisions is the principle that the exercise by this
Court of judicial power is limited to the determination and resolution of actual cases
and controversies.
35
By actual cases, we mean existing conflicts appropriate or ripe for
judicial determination, not conjectural or anticipatory, for otherwise the decision of the
Court will amount to an advisory opinion. The power of judicial inquiry does not extend
to hypothetical questions because any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
36
Neither will the Court determine a moot question in a case in which no
practical relief can be granted. A case becomes moot when its purpose has become
stale.
37
It is unnecessary to indulge in academic discussion of a case presenting a
moot question as a judgment thereon cannot have any practical legal effect or, in the
nature of things, cannot be enforced.
38

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned,
the issuance of an injunctive writ to prohibit the respondent House Committees from
playing the tape recordings and from including the same in their committee report. He
likewise prays that the said tapes be stricken off the records of the House proceedings.
But the Court notes that the recordings were already played in the House and heard
by its members.
39
There is also the widely publicized fact that the committee reports
on the "Hello Garci" inquiry were completed and submitted to the House in plenary by
the respondent committees.
40
Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a
preventive remedy to restrain the doing of an act about to be done, and not intended
to provide a remedy for an act already accomplished.
41

- III -
As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot
be allowed to continue with the conduct of the questioned legislative inquiry without
duly published rules of procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he Senate or
the House of Representatives, or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure."
The requisite of publication of the rules is intended to satisfy the basic requirements of
due process.
42
Publication is indeed imperative, for it will be the height of injustice to
punish or otherwise burden a citizen for the transgression of a law or rule of which he
had no notice whatsoever, not even a constructive one.
43
What constitutes publication
is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect
after 15 days following the completion of their publication either in the Official Gazette,
or in a newspaper of general circulation in the Philippines."
44

The respondents in G.R. No. 179275 admit in their pleadings and even on oral
argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
had been published in newspapers of general circulation only in 1995 and in
2006.
45
With respect to the present Senate of the 14
th
Congress, however, of which
the term of half of its members commenced on June 30, 2007, no effort was
undertaken for the publication of these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate
Committee on Accountability of Public Officers and Investigations,
46
we said:
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the Constitution,
requiring that the inquiry be in accordance with the "duly published rules
of procedure." We quote the OSGs explanation:
The phrase "duly published rules of procedure" requires the
Senate of every Congress to publish its rules of procedure
governing inquiries in aid of legislation because every Senate is
distinct from the one before it or after it. Since Senatorial elections
are held every three (3) years for one-half of the Senates
membership, the composition of the Senate also changes by the
end of each term. Each Senate may thus enact a different set of
rules as it may deem fit. Not having published its Rules of
Procedure, the subject hearings in aid of legislation
conducted by the 14
th
Senate, are therefore, procedurally
infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this
ruling with the following rationalization:
The present Senate under the 1987 Constitution is no longer a continuing
legislative body. The present Senate has twenty-four members, twelve of
whom are elected every three years for a term of six years each. Thus, the
term of twelve Senators expires every three years, leaving less than a
majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to
"constitute a quorum to do business." Applying the same reasoning
in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a
continuing body because less than majority of the Senators continue into
the next Congress. The consequence is that the Rules of Procedure must
be republished by the Senate after every expiry of the term of twelve
Senators.
47

The subject was explained with greater lucidity in our Resolution
48
(On the Motion for
Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to
issue a clarification. Certainly, there is no debate that the Senate as an
institution is "continuing," as it is not dissolved as an entity with each
national election or change in the composition of its members. However, in
the conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The
Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be
taken up at the next session in the same status.
All pending matters and proceedings shall terminate upon
the expiration of one (1) Congress, but may be taken by the
succeeding Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e.,
unpassed bills and even legislative investigations, of the Senate of a
particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in the same status, but
as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous
Congress) should not be bound by the acts and deliberations of the Senate
of which they had no part. If the Senate is a continuing body even with
respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter
of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the
opposite nature of the conduct of its business is reflected in its Rules. The
Rules of the Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected
in the preceding elections shall begin their term of office, the
President may endorse the Rules to the appropriate committee for
amendment or revision.
The Rules may also be amended by means of a motion which should
be presented at least one day before its consideration, and the vote
of the majority of the Senators present in the session shall be
required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption
and shall remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new
composition of the Senate after an election and the possibility of the
amendment or revision of the Rules at the start of each session in which the
newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are
intended to be valid from the date of their adoption until they are amended
or repealed. Such language is conspicuously absent from theRules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation." The latter does not
explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two
sets of Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the next
Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the Senate to publish the
rules for its legislative inquiries in each Congress or otherwise make the
published rules clearly state that the same shall be effective in subsequent
Congresses or until they are amended or repealed to sufficiently put public
on notice.
If it was the intention of the Senate for its present rules on legislative
inquiries to be effective even in the next Congress, it could have easily
adopted the same language it had used in its main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated publication
by arguing that the rules have never been amended since 1995 and, despite that, they
are published in booklet form available to anyone for free, and accessible to the public
at the Senates internet web page.
49

The Court does not agree. The absence of any amendment to the rules cannot justify
the Senates defiance of the clear and unambiguous language of Section 21, Article VI
of the Constitution. The organic law instructs, without more, that the Senate or its
committees may conduct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction whether or not these
rules have undergone amendments or revision. The constitutional mandate to publish
the said rules prevails over any custom, practice or tradition followed by the Senate.
Justice Carpios response to the same argument raised by the respondents is
illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in
pamphlet form available at the Senate, is not sufficient under the Taada v.
Tuvera ruling which requires publication either in the Official Gazette or in a
newspaper of general circulation. The Rules of Procedure even provide that the
rules "shall take effect seven (7) days after publication in two (2) newspapers of
general circulation," precluding any other form of publication. Publication in
accordance with Taada is mandatory to comply with the due process requirement
because the Rules of Procedure put a persons liberty at risk. A person who violates
the Rules of Procedure could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792,
50
otherwise
known as the Electronic Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect. R.A. 8792 considers an
electronic data message or an electronic document as the functional equivalent of a
written document only for evidentiary purposes.
51
In other words, the law merely
recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.
52
It does not make the internet a medium for
publishing laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore, could not, in
violation of the Constitution, use its unpublished rules in the legislative inquiry subject
of these consolidated cases. The conduct of inquiries in aid of legislation by the
Senate has to be deferred until it shall have caused the publication of the rules,
because it can do so only "in accordance with its duly published rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this fact, the recent publication
does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions.
Insofar as the consolidated cases are concerned, the legislative investigation subject
thereof still could not be undertaken by the respondent Senate Committees, because
no published rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other
issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R.
No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of
the Republic of the Philippines and/or any of its committees from conducting any
inquiry in aid of legislation centered on the "Hello Garci" tapes.
SO ORDERED.

PHILIPPINE JOURNALISTS, INC. (PEOPLES JOURNAL), ZACARIAS NUGUID,
JR. and CRISTINA LEE, P e t i t i o n e r s, vs.
FRANCIS THOENEN,
G.R. No. 143372 December 13, 2005
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 Lee[1]
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 letter[3] 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 Certification[8] 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 corresponde nt 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
Decision[11] 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 reversed[13] 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.
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 Appeals[26] 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.

CIRIACO BOY GUINGGUING, G.R. No. 128959
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, Promulgated:
Respondents. September 30, 2005
The liberty of the press is indeed essential. Whoever would overthrow the liberty
of a nation must begin by subduing the freeness of speech - Benjamin
Franklin
[1]

The right of free expression stands as a hallmark of the modern democratic and
humane state.
[2]
Not only does it assure a persons right to say freely what is thought
freely, it likewise evinces the politys freedom from psychological insecurity. This
fundamental liberty is translated into the constitutional guarantee that no law shall be
passed abridging the freedom of speech, of expression, or the press,
[3]
contained in
the Bill of Rights,
[4]
which itself obtains a position of primacy in our fundamental law.
[5]

Criminal libel laws present a special problem. At face value, they might strike as
laws passed that abridge the freedom of speech, expression, or the press. Whatever
seeming conflict between these two precepts has long been judicially resolved with
the doctrine that libelous speech does not fall within the ambit of constitutional
protection. Nonetheless, in ascertaining what class of materials may be considered as
libelous, the freedom of expression clause, its purposes as well as the evils it guards
against, warrant primordial consideration and application.
Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil
Procedure, assailing the Decision
[6]
and the Resolution
[7]
of the Court of Appeals (CA)
dated 29 July 1996 and 3 October 1996, respectively, in CA-G.R. CR No. 16413. The
CA affirmed with modification
[8]
the decision
[9]
rendered by the Regional Trial Court
(RTC), Branch 7 of Cebu City, finding Ciriaco Boy Guingguing (petitioner) and
Segundo Lim (Lim) guilty beyond reasonable doubt of the crime of libel. This petition
for certiorari was filed by petitioner alone, hence the verdict of guilt with respect to Lim
had already become final and executory.
The antecedent facts follow.
This case originated from a criminal complaint for libel filed by Cirse Choy Torralba
(complainant) against Lim and petitioner under Criminal Case No. CBU-26582.
Complainant was a broadcast journalist who handled two programs for radio stations
DYLA and DYFX. The radio stations were based in Cebu City but the programs were
aired over a large portion of the Visayas and Mindanao.
[10]

On 13 October 1991, Lim caused the publication of records of criminal cases filed
against complainant as well as photographs
[11]
of the latter being arrested. These were
published by means of a one-page advertisement paid for by Lim in the Sunday Post,
a weekly publication edited and published by petitioner. The Sunday Post was
circulated in the province of Bohol, as well as in the Visayas and Mindanao.
[12]
The full
text of the advertisement which was the basis of the information
[13]
for libel reads:
REQUEST FOR PUBLIC SERVICE
ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY
TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME
REGARDING THE DISPOSITION OF THE FOLLOWING WHICH APPEAR
HEREUNDER. THE CASES WERE FOUND IN THE BLOTTER OF THE CEBU CITY
POLICE DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE CASES,
WHETHER THEY HAVE BEEN DISMISSED, ARCHIVED AND/OR PENDING.
Name: CIRSE CHOY TORRALBA
CRIM. CASE NO. R-43035
FOR: MALICIOUS MISCHIEF
DATE FILED: MAY 10, 1979
COMPLAINANTS: DR. JOVENAL ALMENDRAS
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY
MR. VICTORIANO VELOSO
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY
DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R
FOR : ESTAFA
DATE FILED: July 12, 1982
COMPLAINANTS: MR. PIO Y. GO AND
MRS. ROSALITA R. ROLDAN
ADDRESS: c/o 2
nd
Floor Martinez Bldg.
(ALPHA MKTG., INC.),
Jones Ave., Cebu City
DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R
FOR: SERIOUS PHYSICAL INJURIES
DATED FILED: APRIL 28, 1980
COMPLAINANTS:
ADDRESS:
DISPOSITION: PROVISIONALLY DISMISSED
DATED: APRIL 14, 1991
NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING
COURTESY OF A CEBU CITY CONCERNED CITIZEN. THE CAPTION STORY
BELOW TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN ALLUDED TO IN
THE CAPTION, PLEASE DO TELL ME.
[Thereafter followed by a picture of a person with face blotted out being arrested and
an inset picture of the same person with face likewise blotted out, being detained,
these pictures being followed by the caption, which states]:
ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col.
Eduardo Ricardo arrested last night a businessman (extreme left) for his alleged
involvement in estafa case filed by APOCEMCO. Left photo a member of the team
serves the warrant of arrest order issued by CEBU RTC Judge German Lee.
ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA TO
HAVE BEEN SERVED A WARRANT OF ARREST IN A (P)LUSH UPTOWN HOTEL
IN CEBU CITY BY OPERATIVES OF THE CEBU CITY POLICE. NOW TELL ME, IS
IT YOU THE SAME CHOY TORRALBA REFERRED TO IN THE CAPTION
STORY. IF INDEED YOU ARE THE ONE AND THE SAME WHO APPEARED IN
THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:
[Thereafter followed by another picture, this time, the face of the person being
arrested is clearly shown to be that of Cirse Choy Torralba, followed by this caption.]
SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy
Torralba (left) in a plush uptown Hotel was disturbed by operatives (right) of the Cebu
City Police under P/Lt/Col. Eduardo Ricardo just to serve on the former a warrant of
arrest issued by Cebu RTC Judge German Lee relative to the suit filed by Apocemco
against the businessman (PR)
THANK YOU, AND MY BEST REGARDS.
PAID SPACE BY: (sgd.) SEGUNDO LIM
[14]

Asserting inter alia that he had been acquitted and the case/s referred to had
already been settled, complainant sought Lim and petitioners conviction for libel. At
the same time, he asked for moral, compensatory and exemplary damages as well as
attorneys fees because the publication allegedly placed him in public contempt and
ridicule. It was claimed that the publication was also designed to degrade and malign
his person and destroy him as a broadcast journalist.
[15]


Lim, in his defense, claimed that complainant was allegedly making scurrilous
attacks against him and his family over the airwaves. Since Lim had no access to
radio time, he opted for paid advertisements via newspaper to answer the
attacks,
[16]
as a measure of self-defense. Lim also argued that complainant, as a
media man and member of the fourth estate, occupied a position almost similar to a
public functionary and should not be onion-skinned and be able to absorb the thrust of
public scrutiny.
[17]

After trial, the lower court concluded that the publication complained of was indeed
libelous.
[18]
Declaring that malice is the most important element of libel, it held that the
same was present in the case because every defamatory publication prima
facie implies malice on the part of the author and publisher towards the person subject
thereof.
[19]
The lower court gave no credence to Lim and petitioners argument that the
publication was resorted to in self-defense.
The trial court likewise disregarded the insulative effects of complainants status
as a mediaman to the prosecution of the criminal libel charge. The publication of a
calumny even against public officers or candidates for public office, according to the
trial court, is an offense most dangerous to the people. It deserves punishment
because the latter may be deceived thereby and reject the best and deserving citizens
to their great injury.
[20]
It further held that a private reputation is as constitutionally
protected as the enjoyment of life, liberty and property such that anybody who attacks
a persons reputation by slanderous words or libelous publications is obliged to make
full compensation for the damage done.
[21]

On appeal, the CA modified the penalty imposed but it affirmed the RTCs finding of
guilt. The CA likewise held that self-defense was unavailing as a justification since the
defendant should not go beyond explaining what was previously said of him. The
appellate court asserted that the purpose of self-defense in libel is to repair, minimize
or remove the effect of the damage caused to him but it does not license the
defendant to utter blow-for-blow scurrilous language in return for what he received.
Once the defendant hits back with equal or more scurrilous remarks unnecessary for
his defense, the retaliation becomes an independent act for which he may be
liable.
[22]
For this reason, the CA refused to sanction the invocation of self-defense.
Petitioner now comes before this Court praying for the reversal of the judgment
against him. Petitioner contends inter alia that as editor-publisher of the Sunday Post
and as a member of the fourth estate, the lower courts finding of guilt against him
constitutes an infringement of his constitutional right to freedom of speech and of the
press.
[23]
Petitioner likewise faults the lower courts failure to appreciate their
invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of whether the
publication subject matter of the instant case is indeed libelous. While the findings and
conclusions of the lower courts are rigid in their application of the strict letter of the law,
the issue seems more complex than it appears at first blush. The Court is compelled
to delve deeper into the issue considering that libel principles formulated at one time
or another have waxed and waned through the years, in the constant ebb and flow of
judicial review.
[24]
A change in the factual milieu of a case is apt to evoke a change in
the judgment applicable. Viewed in this context, the petition has merit and the
judgment appealed from must be reversed.
Criminal Libel vis--vis the Guarantee of Free Speech
Under our law, criminal 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.
[25]
Thus, the elements
of libel are: (a) imputation of a discreditable act or condition to another; (b) publication
of the imputation; (c) identity of the person defamed; and, (d) existence of malice.
[26]

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.
[27]
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.
[28]

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 papers consistent attacks against Colonel William Cosby, the Royal Governor
of New York. In his defense, Zengers 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.
[29]
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.
[30]

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
[31]
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.
[32]

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
[33]
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.
[34]

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.
[35]

There is an important observation to be made about the quality of the American
press during the time of Jefferson, one that is crucial to the contemporaneous
understanding of the freedom of expression clause at the time of its inception. The
tenor of the public debate during that era was hardly polite. About the impending
election of Jefferson, the New England Courant predicted that murder, robbery, rape
and adultery and incest will be openly taught and practiced, the air will be rent with
cries of distress, the soil soaked with blood and the nation black with crimes.
[36]
After
Jefferson was elected, rumors spread about his dalliances with his slave, Sally
Hemmings, adding more fodder to his critics. The thirteen-year old William Cullen
Bryant, who would grow up to become a prominent poet and abolitionist, published the
following doggerel: Thy countrys ruin and thy countrys shame!/ Go wretch! Resign
the Presidential chair/Disclose thy secret measures foul and fair/ Go scan,
philosophist, thy [Sallys] charms/And sink supinely in her sable arms.
[37]

Any comprehensive history of the American media during the first few decades
of the existence of the United States would reveal a similar preference in the media for
such mad-dog rhetoric.
[38]
These observations are important in light of the
misconception that freedom of expression extends only to polite, temperate, or
reasoned expression. The assailed decision of the RTC betrays such a perception,
when it opined that the subject advertisement was libelous because by the language
used, it had passed from the bounds of playful gist, and intensive criticism into the
region of scurrilous calumniation and intemperate personalities.
[39]
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.
Nonetheless, juristic enforcement of the guarantee of freedom of expression was
not demonstrably prominent in the United States during most of the 1800s. Notably,
the prevalent philosophy then was that the Bill of Rights did not apply to the different
federal states.
[40]
When the US Supreme Court was confronted with substantial First
Amendment issues in the late 1800s and early 1900s, it responded by repeatedly
declining to protect free speech.
[41]
The subsequent enactment of the due process
clause in the Fourteenth Amendment eventually allowed the U.S. Supreme Court to
accept, in Gitlow v. New York
[42]
that the First Amendment was protected from
impairment by the States, thus allowing for a more vigorous enforcement of the
freedom of expression clause in the twentieth century.
[43]

The most important American ruling on libel, arguably from which modern libel
law emerged
[44]
was New York Times v. Sullivan,
[45]
penned by the liberal lion Justice
William Brennan, Jr. In ascertaining whether the New York Times was liable for
damages in a libel action, the U.S. Supreme Court had acknowledged that the writing
in question, an advertisement published in the paper
[46]
extolling the virtues of the civil
rights movement, had contained several factual inaccuracies in describing actions
taken by Montgomery, Alabama officials on civil rights protesters.
[47]
The Court even
concluded that at most, there was a finding against the New York Times of negligence
in failing to discover the misstatements against the news stories in the newspapers
own files.
[48]

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First
Amendment freedoms in the prosecution of criminal libel. Famously, the precedent
was established that a public official may not successfully sue for libel unless the
official can prove actual malice, which was defined as with knowledge that the
statement was false or with reckless disregard as to whether or not it was true.
[49]
By
this standard, it was concluded that factual errors aside, actual malice was not proven
to sustain the convictions for libel. Moreover, leeway was allowed even if the
challenged statements were factually erroneous if honestly made.
[50]

Shortly after New York Times was promulgated, its principles were extended by
the U.S. Supreme Court to criminal libel actions in Garrison v. Louisiana.
[51]
The
decision, also penned by Justice Brennan, commented on the marked decline in the
common resort to criminal libel actions:
Where criticism of public officials is concerned, we see no merit in the argument
that criminal libel statutes serve interests distinct from those secured by civil libel laws,
and therefore should not be subject to the same limitations. At common law, truth was
no defense to criminal libel. Although the victim of a true but defamatory publication
might not have been unjustly damaged in reputation by the libel, the speaker was still
punishable since the remedy was designed to avert the possibility that the utterance
would provoke an enraged victim to a breach of peace . . .
[However], preference for the civil remedy, which enabled the frustrated victim to
trade chivalrous satisfaction for damages, has substantially eroded the breach of
peace justification for criminal libel laws. In fact, in earlier, more violent times, the civil
remedy had virtually pre-empted the field of defamation; except as a weapon against
seditious libel, the criminal prosecution fell into virtual desuetude.
[52]

Then, the Court proceeded to consider whether the historical limitation of the
defense of truth in criminal libel to utterances published with good motives and for
justifiable ends:
[53]

. . . The good motives restriction incorporated in many state constitutions and
statutes to reflect Alexander Hamiltons unsuccessfully urged formula in People v.
Croswell, liberalized the common-law rule denying any defense for truth. . . . In any
event, where the criticism is of public officials and their conduct of public
business, the interest in private reputation is overborne by the larger public
interest, secured by the Constitution, in the dissemination of truth. . . .
Moreover, even where the utterance is false, the great principles of the
Constitution which secure freedom of expression in this area preclude attaching
adverse consequences to any except the knowing or reckless falsehood. 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. . . .
[54]

Lest the impression be laid that criminal libel law was rendered extinct in regards
to public officials, the Court made this important qualification in Garrison:
The use of calculated falsehood, however, would put a different cast on the
constitutional question. Although honest utterance, even if inaccurate, may further
the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly
and deliberately published about a public official, should enjoy a like immunity. At the
time the First Amendment was adopted, as today, there were those
unscrupulous enough and skillful enough to use the deliberate or reckless
falsehood as an effective political tool to unseat the public servant or even
topple an administration. That speech is used as a tool for political ends does
not automatically bring it under the protective mantle of the Constitution. For the
use of the known lie as a tool is at once with odds with the premises of democratic
government and with the orderly manner in which economic, social, or political change
is to be effected.
[55]

Another ruling crucial to the evolution of our understanding was Curtis Publishing
Co. v. Butts,
[56]
which expanded the actual malice test to cover not just public officials,
but also public figures. The U.S. Supreme Court, speaking through Chief Justice
Warren, stated that:
[D]ifferentiation between public figures and public officials and adoption of separate
standards of proof for each have no basis in law, logic, or First Amendment policy.
Increasingly in this country, the distinctions between governmental and private sectors
are blurred. . . . [I]t is plain that although they are not subject to the restraints of the
political process, public figures, like public officials, often play an influential role in
ordering society. And surely as a class these public figures have as ready access as
public officials to mass media of communication, both to influence policy and to
counter criticism of their views and activities. Our citizenry has a legitimate and
substantial interest in the conduct of such persons, and freedom of the press to
engage in uninhibited debate about their involvement in public issues and events is as
crucial as it is in the case of public officials. The fact that they are not amenable to
the restraints of the political process only underscores the legitimate and substantial
nature of the interest, since it means that public opinion may be the only instrument by
which society can attempt to influence their conduct.
[57]

The public figure concept was later qualified in the case of Gertz v.
Welch, Inc.,
[58]
which held that a private person should be able to recover damages
without meeting the New York Times standard.
[59]
In doing so, the US Supreme Court
recognized the legitimate state interest in compensating private individuals for
wrongful injury to reputation.
[60]

The prominent American legal commentator, Cass Sunstein, has summarized
the current American trend in libel law as follows:
[C]onsider the law of libel. Here we have an explicit system of free speech tiers.
To simplify a complex body of law: In the highest, most-speech protective tier is
libelous speech directed against a public figure. Government can allow libel plaintiffs
to recover damages as a result of such speech if and only if the speaker had actual
malicethat is, the speaker must have known that the speech was false, or he must
have been recklessly indifferent to its truth or falsity. This standard means that the
speaker is protected against libel suits unless he knew that he was lying or he was
truly foolish to think that he was telling the truth. A person counts as a public figure (1)
if he is a public official in the sense that he works for the government, (2) if, while not
employed by government, he otherwise has pervasive fame or notoriety in the
community, or (3) if he has thrust himself into some particular controversy in order to
influence its resolution. Thus, for example, Jerry Falwell is a public figure and, as a
famous case holds, he is barred from recovering against a magazine that portrays him
as having had sex with his mother. Movie stars and famous athletes also qualify as
public figures. False speech directed against public figures is thus protected from libel
actions except in quite extreme circumstances.
[61]

It may also be noted that this heightened degree of protection afforded to free
expression to comment on public figures or matters against criminal prosecution for
libel has also gained a foothold in Europe. Article 10 of the European Convention on
Human Rights and Fundamental Freedoms provides that [e]veryone has the right to
freedom of expression. This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and
regardless of frontiers.
[62]
The European Court of Human Rights applied this provision
in Lingens v. Austria,
[63]
in ruling that the Republic of Austria was liable to pay
monetary damages as just satisfaction to a journalist who was found guilty for
defamation under the Austrian Criminal Code.
[64]
The European Court noted:
[Article 10] is applicable not only to information or ideas that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no democratic society. . . . These principles
are of particular importance as far as the press is concerned. Whilst the press must
not overstep the bounds set, inter alia, for the protection of the reputation of others, it
is nevertheless incumbent on it to impart information and ideas on political issues just
as on those in other areas of public interest. Not only does the press have the task of
imparting such information and ideas: the public also has the right to receive
them. . . .
[65]

The international trend in diminishing the scope, if not the viability, of criminal
libel prosecutions is clear. Most pertinently, it is also evident in our own acceptance in
this jurisdiction of the principles applied by the U.S. Supreme Court in cases such
as New York Times and Garrison.
Particularly, this Court has accepted the proposition that the actual malice
standard governs the prosecution of criminal libel cases concerning public figures.
In Adiong v. COMELEC,
[66]
the Court cited New York Times in noting that [w]e have
adopted 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.
[67]
The Court was even more explicit
in its affirmation of New York Times in Vasquez v. Court of Appeals.
[68]
Speaking
through Justice Mendoza:
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, which this Court has cited with
approval in several of its own decisions.[
[69]
] 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.
[70]

The Court has likewise extended the actual malice rule to apply not only to
public officials, but also to public figures. In Ayer Productions Pty. Ltd. v.
Capulong,
[71]
the Court cited with approval the following definition of a public figure
propounded by an American textbook on torts:
A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a profession or calling which
gives the public a legitimate interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player,
a pugilist, or any other entertainer. The list is, however, broader than this. It includes
public officers, famous inventors and explorers, war heroes and even ordinary soldiers,
an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a position where public attention is
focused upon him as a person.
[72]

Ayer did not involve a prosecution for libel, but a complaint for injunction on the
filming of a dramatized account of the 1986 EDSA Revolution. Nonetheless, its
definition of a public figure is important to this case, as it clearly establishes that even
non-governmental officials are considered public figures. In fact, the definition
propounded in Ayer was expressly applied by the Court in Borjal v. Court of
Appeals
[73]
in ascertaining whether the complainant therein was a public figure, thus
warranting the application of the actual malice test.
[74]

We considered the following proposition as settled in this jurisdiction: that in order to
justify a conviction for criminal libel against a public figure, it must be established
beyond reasonable doubt that the libelous statements were made or published with
actual malice, meaning knowledge that the statement was false or with reckless
disregard as to whether or not it was true. As applied to the present petition, there are
two main determinants: whether complainant is a public figure, and assuming that he
is, whether the publication of the subject advertisement was made with actual malice.
Sadly, the RTC and the CA failed to duly consider both propositions.
Complainant Is a Public Figure
There should be little controversy in holding that complainant is a public figure. He is
a broadcast journalist hosting two radio programs aired over a large portion of the
Visayas and Mindanao. Measured against the definition provided in Ayer, complainant
would definitely qualify as a public figure. Complainant even asserted before the trial
court that his broadcast was listened to widely, hence, his notoriety is unquestionable.
Complainants standing as a public figure is further militated by the contextual
circumstances of the case. The newspaper in question, the Sunday Post, is
particularly in circulation in the areas where complainants broadcasts were aired.
Certainly, it cannot be denied that the target audience of the newspaper were the
same persons who may have listened regularly to the complainants broadcast. Even
if the sphere of complainants renown is limited in geography, it is in the same plane
as the circulation of the offending newspaper. The extent of complainants ability to
influence hearts and minds through his broadcasts need not be established, only that
he has such capacity and willingness to exert an influence. Complainants volition to
practice the radio broadcasting profession necessarily thrusts him in the public sphere.
Actual Malice Not Proven
As it has been established that complainant was a public figure, it was incumbent
upon the prosecution to prove actual malice on the part of Lim and petitioner when the
latter published the article subject matter of the complaint. Set otherwise, the
prosecution must have established beyond reasonable doubt that the defendants
knew the statements in the advertisement was false or nonetheless proceeded with
reckless disregard as to publish it whether or not it was true.
It should thus proceed that if the statements made against the public figure are
essentially true, then no conviction for libel can be had. Any statement that does
not contain a provably false factual connotation will receive full constitutional
protection.
[75]
An examination of the records of this case showed that the prcis of
information contained in the questioned publication were actually true. Thus,
complainant himself testified:
Q But is it true that these cases published in Exhibit F-1 are actually existing or previous cases?
A At the time of the publication those cases were terminated, long terminated.

Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10, 1979
against you?

FISCAL ROCAMORA: Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer) Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10, 1979,
against you?
A I really do not know about that accusation.

COURT: Proceed.

ATTY. FLORIDO:

Q When you came across the publication, did you check if in fact there was a case docketed with that number
against you? Did you check?
A I did not.

Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case No. 17984-R
filed July 21, 1982 where the complaints were Pio Go and Mrs. Rosalita Roldan?
A: Yes.

Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious Physical Injuries,
date filed April 28, 1980 which in this publication appears provisionally dismissed April 14, 1991?
A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it is true that these
cases were filed against you?
A: As far as I know, in fact, I never received any subpoena or anything about this case.

Q: Yes, but did you upon receipt of Exhibit F-1, did you inquire from the Court whether it is true that these
cases had been recorded as filed against you?
A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether that case exist?
A: Yes.

COURT: Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was provisionally dismissed with reference to 14843-R for
Serious Physical Injuries. You made inquiries?
A: Yes.

Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a case of
Malicious Mischief against you?
A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?
A: Yes.

Q: So, there is nothing false so far as Exhibit F-1?
A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. Not too long ago, I received the
following newspaper clippings courtesy of the Cebu City concerned citizens. The caption story
below tells all. If you know who the businessman alluded to in the caption. Please do tells me and
then, there is a photograph a reprint from Sun Star publication. Do you confirm that?
[76]

Q: But is it true that you were arrested per this photograph and I quote. In a plush uptown hotel
was disturbed by operatives (right) of the Cebu City Police under Police Lieutenant Col. Eduardo
Ricardo just to serve on the former a warrant of arrest issued by the Cebu RTC Judge German
Lee relative to the suit filed by Apocemco against a businessman. Is it true that you were
arrested?
A: Yes.
Q: So this photograph is genuine photograph?
A: Yes.
Q: And you claimed that you have a good reputation and that good reputation had been soiled
by the accused in this case. Let me ask you concerning your reputation then. Is it not a fact that
aside from this record of criminal cases appearing in Exhibit F-1, you have also been at one time
or another been accused of several other criminal cases both in and out of the City of Cebu?
A: Yes, before, 10 years, 15 years ago.
Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per
certificate which we marked as Exhibit 2. Criminal Case Nos. 14843-R for Serious Physical
Injuries, Torralba Cirse Choy; 17984-R, for Estafa; Torralba Cirse R. R-43035 for Malicious
Mischief. You will confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse R.
Torralba mentioned in this certificate refer to your person?
A: Yes.
Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City, you
also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases before the Regional Trial Court of Cebu per
certificate that I marked as Exhibit 3. Is that correct?
A: Yes, but all those cases have already been either acquitted or dismissed. I will present the
certification.
Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5
cases for Estafa, the 6
th
case for issuance of a bouncing check, the 7
th
case is a case for issuance
of a bouncing check; and the 9
th
is also for issuance of a bouncing check. You will confirm that?
COURT: (to witness)
Q: What happened to those cases?
A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and
fortunately, your Honor, I do not have any conviction.
[77]


From the foregoing, it is clear that there was nothing untruthful about what was
published in the Sunday Post. The criminal cases listed in the advertisement as
pending against the complainant had indeed been filed. It may have been
inconvenient for the complainant that these matters may have been divulged, yet such
information hardly falls within any realm of privacy complainant could invoke, since the
pendency of these criminal charges are actually matters of public record.
The information, moreover, went into the very character and integrity of complainant to
which his listening public has a very legitimate interest. Complainant hosts a public
affairs program, one which he himself claimed was imbued with public character since
it deals with corruptions in government, corruptions by public officials, irregularities in
government in comrades.
[78]
By entering into this line of work, complainant in effect
gave the public a legitimate interest in his life. He likewise gave them a stake in finding
out if he himself had the integrity and character to have the right to criticize others for
their conduct.
In convicting the defendants, the lower courts paid particular heed to Article 354 of the
Revised Penal Code, which provides that 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. We hold that this provision, as applied to public figures complaining of
criminal libel, must be construed in light of the constitutional guarantee of free
expression, and this Courts precedents upholding the standard of actual malice with
the necessary implication that a statement regarding a public figure if true is not
libelous. The provision itself allows for such leeway, accepting as a defense good
intention and justifiable motive. The exercise of free expression, and its concordant
assurance of commentary on public affairs and public figures, certainly qualify as
justifiable motive, if not good intention.
It cannot be helped if the commentary protected by the Bill of Rights is accompanied
by excessive color or innuendo. Certainly, persons in possession of truthful facts are
not obliged to present the same in bland fashion. These true facts may be utilized to
convince the listener/reader against a particular position, or to even dissuade one
against accepting the credibility of a public figure. Dry facts, by themselves, are hardly
stirring. It is the commentary thereupon that usually animates the discourse which is
encouraged by the Constitution as integral to the democratic way of life. This is replete
in many components of our daily life, such as political addresses, televised debates,
and even commercial advertisements.
As adverted earlier, the guarantee of free speech was enacted to protect not only
polite speech, but even expression in its most unsophisticated form. Criminal libel
stands as a necessary qualification to any absolutist interpretation of the free speech
clause, if only because it prevents the proliferation of untruths which if unrefuted,
would gain an undue influence in the public discourse. But in order to safeguard
against fears that the public debate might be muted due to the reckless enforcement
of libel laws, truth has been sanctioned as a defense, much more in the case when the
statements in question address public issues or involve public figures.
In ascertaining the degree of falsity that would constitute actual malice, the Court,
citing New York Times, has even gone so far as acknowledging:
Even 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. 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. In Bulletin Publishing Corp. v. Noel we held
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 libel, so long as the newspaper respects and keeps within the standards of
morality and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required to
allow an adequate margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the absence of proof of "actual
malice" on the part of the person making the libelous statement.
[79]

To this end, the publication of the subject advertisement by petitioner and Lim cannot
be deemed by this Court to have been done with actual malice. Aside from the fact
that the information contained in said publication was true, the intention to let the
public know the character of their radio commentator can at best be subsumed under
the mantle of having been done with good motives and for justifiable ends. The
advertisement in question falls squarely within the bounds of constitutionally protected
expression under Section 4, Article III, and thus, acquittal is mandated.
WHEREFORE, premises considered, the petition is GRANTED. The
assailed Decision and Resolution of the Court of Appeals dated 29 July 1996 and 3
October 1996, respectively, in CA-G.R. CR No. 16413 are REVERSED and SET
ASIDE insofar as they affect petitioner. The Decision of the Regional Trial Court of
Cebu City, promulgated on 17 May 1994, as regards petitioner is likewise REVERSED
and SET ASIDE and petitioner is ACQUITTED of the charge of libel therein. No costs.
Republic Act No. 9775
AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING
PENALTIES THEREFOR AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
Section 1. Short Title. - This Act shall be known as the "Anti-Child Pornography Act
of 2009."
Section 2. Declaration of Policy. - The State recognizes the vital role of the youth in
nation building and shall promote and protect their physical, moral, spiritual,
intellectual, emotional, psychological and social well-being. Towards this end, the
State shall:
(a) Guarantee the fundamental rights of every child from all forms of neglect,
cruelty and other conditions prejudicial to his/her development;
(b) Protect every child from all forms of exploitation and abuse including, but
not limited to:
(1) the use of a child in pornographic performances and materials; and
(2) the inducement or coercion of a child to engage or be involved in
pornography through whatever means; and
(c) Comply with international treaties to which the Philippines is a signatory
or a State party concerning the rights of children which include, but not
limited to, the Convention on the Rights of the Child, the Optional Protocol
to the Convention on the Rights of the Child of the Child on the Sale of
Children, Child Prostitution and Child Pornography, the International Labor
Organization (ILO) Convention No.182 on the Elimination of the Worst
Forms of Child Labor and the Convention Against Transnational Organized
Crime.
Section 3. Definition of Terms. -
(a) "Child" refers to a person below eighteen (18) years of age or over, but
is unable to fully take care of himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition.
For the purpose of this Act, a child shall also refer to:
(1) a person regardless of age who is presented, depicted or
portrayed as a child as defined herein; and
(2) computer-generated, digitally or manually crafted images or
graphics of a person who is represented or who is made to
appear to be a child as defined herein.
(b) "Child pornography" refers to any representation, whether visual, audio,
or written combination thereof, by electronic, mechanical, digital, optical,
magnetic or any other means, of child engaged or involved in real or
simulated explicit sexual activities.
(c) "Explicit Sexual Activity" includes actual or simulated -
(1) As to form:
(i) sexual intercourse or lascivious act including, but not limited to,
contact involving genital to genital, oral to genital, anal to genital, or oral
to anal, whether between persons of the same or opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadistic or masochistic abuse;
(5) lascivious exhibition of the genitals, buttocks, breasts, pubic area
and/or anus; or
(6) use of any object or instrument for lascivious acts
(d) "Internet address" refers to a website, bulletin board service, internet
chat room or news group, or any other internet or shared network protocol
address.
(e) "Internet cafe or kiosk" refers to an establishment that offers or proposes
to offer services to the public for the use of its computer/s or computer
system for the purpose of accessing the internet, computer games or
related services.
(f) "Internet content host" refers to a person who hosts or who proposes to
host internet content in the Philippines.
(g) "Internet service provider (ISP)" refers to a person or entity that supplies
or proposes to supply, an internet carriage service to the public.
(h) "Grooming" refers to the act of preparing a child or someone who the
offender believes to be a child for sexual activity or sexual relationship by
communicating any form of child pornography. It includes online enticement
or enticement through any other means.
(i) "Luring" refers to the act of communicating, by means of a computer
system, with a child or someone who the offender believes to be a child for
the purpose of facilitating the commission of sexual activity or production of
any form of child pornography.(2) Bestiality;
(j) "Pandering" refers to the act of offering, advertising, promoting,
representing or distributing through any means any material or purported
material that is intended to cause another to believe that the material or
purported material contains any form of child pornography, regardless of the
actual content of the material or purported material.
(k) "Person" refers to any natural or juridical entity.
Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person:
(a) To hire, employ, use, persuade, induce or coerce a child to perform in
the creation or production of any form of child pornography;
(b) To produce, direct, manufacture or create any form of child pornography;
(c) To publish offer, transmit, sell, distribute, broadcast, advertise, promote,
export or import any form of child pornography;
(d) To possess any form of child pornography with the intent to sell,
distribute, publish, or broadcast: Provided. That possession of three (3) or
more articles of child pornography of the same form shall be prima facie
evidence of the intent to sell, distribute, publish or broadcast;
(e) To knowingly, willfully and intentionally provide a venue for the
commission of prohibited acts as, but not limited to, dens, private rooms,
cubicles, cinemas, houses or in establishments purporting to be a legitimate
business;
(f) For film distributors, theaters and telecommunication companies, by
themselves or in cooperation with other entities, to distribute any form of
child pornography;
(g) For a parent, legal guardian or person having custody or control of a
child to knowingly permit the child to engage, participate or assist in any
form of child pornography;
(h) To engage in the luring or grooming of a child;
(i) To engage in pandering of any form of child pornography;
(j) To willfully access any form of child pornography;
(k) To conspire to commit any of the prohibited acts stated in this section.
Conspiracy to commit any form of child pornography shall be committed
when two (2) or more persons come to an agreement concerning the
commission of any of the said prohibited acts and decide to commit it; and
(l) To possess any form of child pornography.
Section 5. Syndicated Child Pornography - The crime of child pornography is deemed
committed by a syndicate if carried out by a group of three (3) or more persons
conspiring or confederating with one another and shall be punished under Section
15(a) of this Act.
Section 6. Who May File a Complaint. - Complaints on cases of any form of child
pornography and other offenses punishable under this Act may be filed by the
following:
(a) Offended party;
(b) Parents or guardians;
(c) Ascendant or collateral relative within the third degree of consanguinity;
(d) Officer, social worker or representative of a licensed child-caring
institution;
(e) Officer or social worker of the Department of Social Welfare and
Development (DSWD);
(f) Local social welfare development officer;
(g) Barangay chairman;
(h) Any law enforcement officer;
(i) At least three (3) concerned responsible citizens residing in the place
where the violation occurred; or
(j) Any person who has personal knowledge of the circumstances of the
commission of any offense under this Act.
Section 7. Appointment of Special Prosecutors. - The Department of Justice (DOJ)
shall appoint or designate special prosecutors to prosecute cases for the violation of
this Act.
Section 8. Jurisdiction. - Jurisdiction over cases for the violation of this Act shall be
vested in the Family Court which has territorial jurisdiction over the place where the
offense or any of its essential elements was committed pursuant to Republic Act No.
8369, otherwise known as "Family Courts Act of 1997".
Section 9. Duties of an Internet Service Provider (ISP). - All internet service providers
(ISPs) shall notify the Philippine National Police (PNP) or the National Bureau of
Investigation (NBI) within seven (7) days from obtaining facts and circumstances that
any form of child pornography is being committed using its server or facility. Nothing in
this section may be construed to require an ISP to engage in the monitoring of any
user, subscriber or customer, or the content of any communication of any such
person: Provided, That no ISP shall be held civilly liable for damages on account of
any notice given in good faith in compliance with this section.
Furthermore, an ISP shall preserve such evidence for purpose of investigation and
prosecution by relevant authorities.
An ISP shall, upon the request of proper authorities, furnish the particulars of users
who gained or attempted to gain access to an internet address which contains any
form of child pornography.
All ISPs shall install available technology, program or software to ensure that access
to or transmittal of any form of child pornography will be blocked or filtered.
An ISP who shall knowingly, willfully and intentionally violate this provision shall be
subject to the penalty provided under Section 15(k) of this Act.
The National Telecommunications Commission (NTC) shall promulgate within ninety
(90) days from the effectivity of this Act the necessary rules and regulations for the
implementation of this provision which shall include, among others, the installation of
filtering software that will block access to or transmission of any form of the child
pornography.
Section 10. Responsibility of Mall Owners/Operators and Owners or Lessors of Other
Business Establishments. - All mall owners/operators and owners or lessors of other
business establishments shall notify the PNP or the NBI within seven (7) days from
obtaining facts and circumstances that child pornography is being committed in their
premises. Provided, That public display of any form of child pornography within their
premises is a conclusive presumption of the knowledge of the mall owners/operators
and owners or lessors of other business establishments of the violation of this
Act: Provided, further, That a disputable presumption of knowledge by mall
owners/operators and owners or lessors of other business establishments should
know or reasonably know that a violation of this Act is being committed in their
premises.
Photo developers, information technology professionals, credit card companies and
banks and any person who has direct knowledge of any form of child pornography
activities shall have the duty to report any suspected child pornography materials or
transactions to the proper authorities within seven (7) days from discovery thereof.
Any willful and intentional violation of this provision shall be subject to the penalty
provided under Section 15(l) of this Act.
Section 11. Duties of an Internet Content Host. - An internet content host shall:
(a) Not host any form of child pornography on its internet address;
(b) Within seven (7) days, report the presence of any form of child
pornography, as well as the particulars of the person maintaining, hosting,
distributing or in any manner contributing to such internet address, to the
proper authorities; and
(c) Preserve such evidence for purposes of investigation and prosecution by
relevant authorities.
An internet content host shall, upon the request of proper authorities, furnish the
particulars of users who gained or attempted to gain access to an internet address
that contains any form of child pornography.
An internet content host who shall knowingly, willfully and intentionally violate this
provision shall be subject to the penalty provided under Section 15(j) of this Act:
Provided, That the failure of the internet content host to remove any form of child
pornography within forty-eight (48) hours from receiving the notice that any form of
child pornography is hitting its server shall be conclusive evidence of willful and
intentional violation thereof.
Section 12. Authority to Regulate Internet Caf or Kiosk. - The local government unit
(LGU) of the city or municipality where an internet caf or kiosk is located shall have
the authority to monitor and regulate the establishment and operation of the same or
similar establishments in order to prevent violation of the provisions of this Act.
Section 13. Confidentiality. - The right to privacy of the child shall be ensured at any
stage of the investigation, prosecution and trial of an offense under this Act. Towards
this end, the following rules shall be observed:
(a) The judge, prosecutor or any officer of the law to whom the complaint
has been referred to may, whenever necessary to ensure a fair and
impartial proceeding and after considering all circumstances for the best
interest of the child conduct a closed-door investigation, prosecution or trial;
(b) The name and personal circumstances of the child, including the child's
immediate family, or any other information tending to establish his/her
identity shall not be disclosed to the public;
(c) Any record regarding a child shall be confidential and kept under seal.
Except upon written request and order of the court, a record shall be
released only to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies and
(6) Other persons as determined by the court.
(d) Any form of child pornography that is part of the court records shall be
subject to a protective order that provides as follows:
(1) Any form of child pornography may be viewed only by the
parties, their counsel, their expert witness and guardian ad litem;
(2) Neither form of child pornography nor any portion thereof shall
be divulged to any other person, except as necessary for
investigation, prosecution or trial; and
(3) No person shall be granted access to any form of child
pornography or any part thereof unless he/she signs a written
affirmation that he/she has received and read a copy of the
protection order; that he/she submits to the jurisdiction of the
court with respect to the protective order; and that, in case of
violation thereof, he/she will be subject to the contempt power of
the court; and
(e) In cases when prosecution or trial is conducted behind closed doors, it
shall be unlawful for any editor, publisher and reporter or columnist in case
of printed materials, announcer or producer in case of television and radio,
producer and director of a film in case of the movie industry, or any person
utilizing the tri-media facilities or information technology to publish or
broadcast the names of the victims of any case of child pornography.
Any violation of this provision shall be subject to the penalty provided for under
Section 15(m) of this Act.
Section 14. Care, Custody and Treatment of a Child Victim. - The DSWD shall ensure
that the child who is a victim of any form of child pornography is provided appropriate
care, custody and support for their recovery and reintegration in accordance with
existing laws.
The child and his family shall be entitled to protection as well as to the rights and
benefits of witnesses underRepublic Act No. 6981, otherwise known as "The Witness
Protection, Security and Benefit Act".
The child shall also be considered as a victim of a violent crime defined under Section
3(d) of Republic Act No. 7309, otherwise known as "An Act Creating a Board of
Claims under the Department of Justice for Victims of Unjust Imprisonment or
Detention and Victims of Violent Crimes and for Other Purposes", so that the child
may claim compensation therein.
Section 15. Penalties and Sanctions. - The following penalties and sanctions are
hereby established for offenses enumerated in this Act:
(a) Any person found guilty of syndicated child pornography as defined in
Section 5 of this Act shall suffer the penalty of reclusion perpetua and a fine
of not less than Two million pesos (Php2,000,000.00) but not more than
Five million pesos (Php5,000,000.00);
(b) Any person found guilty of violating Section 4(a), (b) and (c) of this Act
shall suffer the penalty ofreclusion temporal in its maximum period and a
fine of not less than One million pesos (Php1,000,000.00) but not more than
Two million (Php2,000,000.00);
(c) Any person found guilty of violating Section 4(d), (e) and (f) of this Act
shall suffer the penalty ofreclusion temporal in its medium period and a fine
of not less than Seven hundred fifty thousand pesos (Php750,000.00) but
not more than One million pesos (Php1,000,000.00);
(d) Any person found guilty of violating Section 4(g) of this Act shall suffer
the penalty of reclusion temporalin its minimum period and a fine of not less
than Five hundred thousand pesos (Php500,000.00) but not more than
Seven hundred thousand pesos (Php700,000.00);
(e) Any person found guilty of violating Section 4(h) of this Act shall suffer
the penalty of prision mayor in its maximum period and a fine of not less
than Three hundred thousand pesos (Php300,000.00) but not more than
Five hundred thousand pesos (Php500,000.00);
(f) Any person found guilty of violating Section 4(I) of this Act shall suffer the
penalty of prision mayor in its minimum period and a fine of not less than
Three hundred thousand pesos (php300,000.00) but not more than Five
hundred thousand pesos (Php500,000.00);
(g) Any person found guilty of violating Section 4(j) of this Act shall suffer
the penalty of prision correccionalin its maximum period and a fine of not
less than Two hundred thousand pesos (Php200,000.00) but not more than
Three hundred thousand pesos (Php300,000.00);
(h) Any person found guilty of violating Section 4(k) of this Act shall suffer
the penalty of prision correccionalin its medium period and a fine of not less
than One hundred thousand pesos (php100,000.00) but not more than Two
hundred fifty thousand pesos (php250,000.00);
(i) Any person found guilty of violating Section 4(l) of this Act shall suffer the
penalty of arresto mayor in its minimum period and a fine of not less than
Fifty thousand pesos (Php50,000.00) but not more than One hundred
thousand pesos (Php100,000.00);
(j) Any person found guilty of violating Section 11 of this Act shall suffer the
penalty of prision correccional in its medium period and a fine of not less
than One million pesos (Php1,000,000.00) but not more than Two million
pesos (Php2,000,000.00) for the first offense. In the case of a subsequent
offense, the penalty shall be a fine not less than Two million pesos
(Php2,000,000.00) but not more than Three million pesos
(Php3,000,000.00) and revocation of its license to operate and immediate
closure of the establishment;
(k) Any ISP found guilty of willfully and knowingly failing to comply with the
notice and installation requirements under Section 9 of this Act shall suffer
the penalty of a fine of not less than Five hundred thousand pesos
(Php500,000.00) but not more than One million pesos (Php1,000,000.00)
for the first offense. In case of subsequent offense, the penalty shall be a
fine of not less than One million pesos (Php1,000,000.00) but not more than
Two million pesos (Php2,000,000.00) and revocation of its license to
operate;
(l) Any mall owner-operator and owner or lessor of other business
establishments including photo developers, information technology
professionals, credit card companies and banks, found guilty of willfully and
knowingly failing to comply with the notice requirements under Section 10 of
this Act shall suffer the penalty of a fine of not less than One million pesos
(Php1,000,000.00) but not more than Two million pesos (Php2,000,000.00)
for the first offense. In the case of a subsequent offense, the penalty shall
be a fine of not less than Two million pesos (Php2,000,000.00) but not more
than Three million pesos (Php3,000,000.00) and revocation of its license to
operate and immediate closure of the establishment; and
(m) Any person found guilty of violating Section 13 of this Act shall suffer the
penalty of arresto mayor in its minimum period and a fine of not less than
One hundred thousand pesos (Php100,000.00) but not more than Three
hundred thousand pesos (Php300,000.00).
Section 16. Common Penal Provisions. -
(a) If the offender is a parent, ascendant, guardian, step-parent or collateral
relative within the third degree of consanguinity or affinity or any person
having control or moral ascendancy over the child, the penalty provided
herein shall be in its maximum duration; Provided, That this provision shall
not apply to Section 4(g) of this Act;
(b) If the offender is a juridical person, the penalty shall be imposed upon
the owner, manager, partner, member of the board of directors and/or any
responsible officer who participated in the commission of the crime or shall
have knowingly permitted or failed to prevent its commissions;
(c) If the offender is a foreigner, he/she shall be immediately deported after
the complete service of his/her sentence and shall forever be barred from
entering the country; and
(d) The penalty provided for in this Act shall be imposed in its maximum
duration if the offender is a public officer or employee.
Section 17. Confiscation and Forfeiture of the Proceeds, Tools and Instruments Used
in Child Pornography. - In addition to the penalty imposed for the violation of this Act,
the court shall order the confiscation and forfeiture in favor of the government of all the
proceeds, tools and instruments used in the commission of the crime, unless they are
the property of a third person not liable for the unlawful act; Provided, however, That
all awards for damages shall be taken from the personal and separate properties of
the offender; Provided, further, That if such properties are insufficient, the deficiency
shall be taken from the confiscated and forfeited proceeds, tools and instruments.
All proceeds derived from the sale of properties used for the commission of any form
of child pornography shall accrue to the special account of the DSWD which shall be
used exclusively for the implementation of this Act.
When the proceeds, tools and instruments used in the commission of the offense have
been destroyed diminished in value or otherwise rendered worthless by any act or
omission, directly or indirectly, of the offender, or it has been concealed, removed,
converted or transferred to prevent the same from being found or to avoid forfeiture or
confiscation, the offender shall be ordered to pay the amount equal to the value of the
proceeds, tools and instruments used in the commission of the offense.1avvphi1
Section 18. Mandatory Services to Victims of Child Pornography. - To ensure
recovery, rehabilitation and reintegration into the mainstream of society concerned
government agencies and the LGUs shall make available the following services to
victims of any form of child pornography:
(a) Emergency shelter or appropriate housing;
(b) Counseling;
(c) Free legal services, which shall include information about the victim's
rights and the procedure for filing of complaints, claims for compensation
and such other legal remedies available to them in a language understood
by the child;
(d) Medical or psychological services;
(e) Livelihood and skills training; and
(f) Educational assistance.
Sustained supervision and follow through mechanism that will track the progress of
recovery, rehabilitation and reintegration of the child victims shall adopted and carried
out.
Section 19. Programs for Victims of Child Pornography. The Inter-Agency Council
Against Child Pornography created under Section 20 of this Act shall develop and
implement the necessary programs that will prevent any form of child pornography, as
well as protect, heal and reintegrate the child into the mainstream of society. Such
programs shall include beat but not limited to the following:
(a) Provision of mandatory services including counseling free legal services,
medical or psychological services, livelihood and skills training and
educational assistance to the child pursuant to Section 18 of this Act;
(b) Sponsorship of a national research program on any form of child
pornography and other acts covered by the law and the establishment of a
data collection system for monitoring and evaluation purposes;
(c) Provision of necessary technical and material support services to
appropriate government agencies and nongovernmental organizations:
(d) Sponsorship of conferences and seminars to provide venue for
consensus building amongst the public, the academe , government,
nongovernmental and international organizations and
(e) Promotion of information and education campaign.
Section 20. Inter - Agency Council against Child Pornography. - There is hereby
established an Inter-Agency Council against Child Pornography to be composed of the
Secretary of the DSWD as chairperson and the following as members:
(a) Secretary of the Department of Justice:
(b) Secretary of the Department of Labor and Employment
(c) Secretary of the Department of Science and Technology
(d) Chief of the Philippine National Police;
(e) Chairperson of the Commission on Information and Communications
Technology;
(g) Commissioner of the National Telecommunications Commission;
(h) Executive Director of the Council for the Welfare of Children;
(i) Executive Director of the Philippine Center for Transnational Crimes;
(j) Executive Director of the Optical Media Board;
(k) Director of the National Bureau of Investigation; and
(l) Three (3) representatives from children's nongovernmental organizations.
These representatives shall be nominated by the government agency
representatives of the Council for appointment by the President for a term of
three (3) years and may be renewed upon renomination and reappointment
by the Council and the President respectively.
The members of the Council mat designate their permanent representatives, who shall
have a rank not lower than assistant secretary or its equivalent, to meetings and shall
receive emoluments as may be determined by the Council in accordance with existing
budget and accounting rules and regulations.
The DSWD shall establish the necessary Secretariat for the Council.
Section 21. Functions of the Council. - The Council shall have the following powers
and functions:
(a) Formulate comprehensive and integrated plans and programs to prevent
and suppress any form of child pornography;
(b) Promulgate rules and regulations as may be necessary for the effective
implementation of this Act;
(c) Monitor and oversee the strict implementation of this Act;
(d) Coordinate the programs and projects of the various members agencies
effectively address the issues and problems attendant to child pornography;
(e) Conduct and coordinate massive information disseminations and
campaign on the existence of the law and the various issues and problems
attendant to child pornography;
(f) Direct other agencies to immediately respond to the problems brought to
their attention and report to the Council on the action taken;
(g) Assist in the filling of cases against individuals, agencies, institutions or
establishments that violate the provisions of this Act;
(h) Formulate a program for the reintegration of victims of child
pornography;
(i) Secure from any department, bureau, office, agency or instrumentality of
the government or from NGOs and other civic organizations such
assistance as may be needed to effectively implement this Act;
(j) Complement the shared government information system relative to child
abuse and exploitation and ensure that the proper agencies conduct a
continuing research and study on the patterns and schemes of any form of
child pornography which form basis for policy formulation and program
direction;
(k) develop the mechanism to ensure the timely, coordinated and effective
response to cases of child pornography;
(l) Recommend measures to enhance cooperative efforts and mutual
assistance among foreign countries through bilateral and/or multilateral
arrangements to prevent and suppress any form of child pornography;
(m) Adopt measures and policies to protect the rights and needs of the
victims of child pornography who are foreign nationals in the Philippines;
(n) maintain a database of cases of child pornography;
(o) Initiate training programs in identifying and providing the necessary
intervention or assistance to victims of child pornography.
(p) Submit to the President and the Congressional Oversight committee
credited herein the annual report on the policies, plans, programs and
activities of the Council relative to the implementation of this Act; and
(q) Exercise all the powers and perform such other functions necessary to
attain the purposes and objectives of this Act.
Section 22. Child Pornography as a Transnational Crime. - Pursuant to the
Convention on transnational Organized Crime, the DOJ may execute the request of a
foreign state for assistance in the investigation or prosecution of any form of child
pornography by: (1) conducting a preliminary investigation against the offender and, if
appropriate, to file the necessary charges in court; (2) giving information needed by
the foreign state; and (3) to apply for an order of forfeiture of any proceeds or
monetary instrument or properly located in the Philippines used in connection with
child pornography in the court; Provided, That if the DOJ refuses to act on the request
of for delaying the execution thereof: Provided, further, That the principles of mutuality
and reciprocity shall, for this purpose, be at all times recognized.
Section 23. Extradition. - The DOJ, in consultation with the Department of Foreign
Affairs (DFA), shall endeavor to include child pornography among extraditable
offenses in future treaties.
Section 24. Congressional Oversight Committee. -There is hereby created a
Congressional Oversight Committee composed of five (5) members from the Senate
and five (5) members from the House of Representatives. The members from the
Senate shall be appointed by the Senate President based on proportional
representation of the parties or coalition therein with at least one (1) member
representing the Minority. The members from the House of Representative shall be
appointed by the Speaker, also based on proportional representation of the parties or
coalitions therein with the Chair of the House of Committee on Welfare of Children and
at least one (1) member representing the Minority
The Committee shall be headed by the respective Chairs of the Senate Committee on
Youth, Women and Family relations and the House of Representatives Committee on
Justice. The Secretariat of the Congressional Oversight Committee shall come from
the existing Secretariat personnel of the Committees of the Senate and the House of
Representatives concerned.
The Committee shall monitor and ensure the effective implementation of this Act,
determine inherent weakness and loopholes in the law. Recommend the necessary
remedial legislator or administrative measures and perform such other duties and
functions as may be necessary to attain the objectives of this Act.
Section 25. Appropriations. - The amount necessary to implement the provisions of
the Anti-Child Pornography Act and the operationalization of the Inter-Agency Council
Against Child Pornography shall be included in the annual General Appropriations Act.
Section 26. Implementing Rules and Regulations. - The Inter- Agency Council Against
Child pornography shall promulgate the necessary implementing rules and regulations
within ninety (90) days from the effectivity of this Act.
Section 27. Suppletory Application of the Revised Penal Code. - The Revised penal
Code shall be suppletorily applicable to this Act.
Section 28. Separability Clause. - If any part of this Act is declared unconstitutional or
invalid, the other provisions not affected thereby shall continue to be in full force and
effect.
Section 29. Repealing Clause. - All laws, presidential decrees, executive orders,
administrative orders, rules and regulations inconsistent with or contrary to the
provisions of this Act are deemed amended, modified or repealed accordingly.
Section 30. Effectivity. - This Act shall effect after fifteen (15) days following its
complete publication in the Official Gazette or in at least two (2) newspapers of
general circulation.










Republic Act No. 9995
AN ACT DEFINING AND PENALIZING THE CRIME OF PHOTO AND
VIDEO VOYEURISM, PRESCRIBING PENALTIES THEREFOR, AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of Representative of the Philippines
in Congress assembled:
Section 1. Short Title. - This Act shall be known as the "Anti-Photo and
Video Voyeurism Act of 2009".
Section 2. Declaration of Policy. - The State values the dignity and privacy of
every human person and guarantees full respect for human rights. Toward
this end, the State shall penalize acts that would destroy the honor, dignity
and integrity of a person.
Section 3. Definition of Terms. - For purposes of this Act, the term:
(a) "Broadcast" means to make public, by any means, a visual image with
the intent that it be viewed by a person or persons.
(b) "Capture" with respect to an image, means to videotape, photograph, film,
record by any means, or broadcast.
(c) "Female breast" means any portion of the female breast.
(d) "Photo or video voyeurism" means the act of taking photo or video
coverage of a person or group of persons performing sexual act or any
similar activity or of capturing an image of the private area of a person or
persons without the latter's consent, under circumstances in which such
person/s has/have a reasonable expectation of privacy, or the act of selling,
copying, reproducing, broadcasting, sharing, showing or exhibiting the photo
or video coverage or recordings of such sexual act or similar activity through
VCD/DVD, internet, cellular phones and similar means or device without the
written consent of the person/s involved, notwithstanding that consent to
record or take photo or video coverage of same was given by such person's.
(e) "Private area of a person" means the naked or undergarment clad
genitals, public area, buttocks or female breast of an individual.
(f) "Under circumstances in which a person has a reasonable expectation of
privacy" means believe that he/she could disrobe in privacy, without being
concerned that an image or a private area of the person was being captured;
or circumstances in which a reasonable person would believe that a private
area of the person would not be visible to the public, regardless of whether
that person is in a public or private place.
Section 4. Prohibited Acts. - It is hereby prohibited and declared unlawful for
any person:
(a) To take photo or video coverage of a person or group of persons
performing sexual act or any similar activity or to capture an image of the
private area of a person/s such as the naked or undergarment clad genitals,
public area, buttocks or female breast without the consent of the person/s
involved and under circumstances in which the person/s has/have a
reasonable expectation of privacy;
(b) To copy or reproduce, or to cause to be copied or reproduced, such
photo or video or recording of sexual act or any similar activity with or
without consideration;
(c) To sell or distribute, or cause to be sold or distributed, such photo or
video or recording of sexual act, whether it be the original copy or
reproduction thereof; or
(d) To publish or broadcast, or cause to be published or broadcast, whether
in print or broadcast media, or show or exhibit the photo or video coverage
or recordings of such sexual act or any similar activity through VCD/DVD,
internet, cellular phones and other similar means or device.
The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding
that consent to record or take photo or video coverage of the same was
given by such person/s. Any person who violates this provision shall be
liable for photo or video voyeurism as defined herein.
Section 5. Penalties. - The penalty of imprisonment of not less that three (3)
years but not more than seven (7) years and a fine of not less than One
hundred thousand pesos (P100,000.00) but not more than Five hundred
thousand pesos (P500,000.00), or both, at the discretion of the court shall be
imposed upon any person found guilty of violating Section 4 of this Act.
If the violator is a juridical person, its license or franchise shall be
automatically be deemed revoked and the persons liable shall be the officers
thereof including the editor and reporter in the case of print media, and the
station manager, editor and broadcaster in the case of a broadcast media
If the offender is a public officer or employee, or a professional, he/she shall
be administratively liable.
If the offender is an alien, he/she shall be subject to deportation proceedings
after serving his/her sentence and payment of fines.
Section 6. Exemption. - Nothing contained in this Act, however, shall render
it unlawful or punishable for any peace officer, who is authorized by a written
order of the court, to use the record or any copy thereof as evidence in any
civil, criminal investigation or trial of the crime of photo or video voyeurism:
Provided, That such written order shall only be issued or granted upon
written application and the examination under oath or affirmation of the
applicant and the witnesses he/she may produce, and upon showing that
there are reasonable grounds to believe that photo or video voyeurism has
been committed or is about to be committed, and that the evidence to be
obtained is essential to the conviction of any person for, or to the solution or
prevention of such, crime.
Section 7. Inadmissibility of Evidence. - Any record, photo or video, or copy
thereof, obtained or secured by any person in violation of the preceding
sections shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.1avvphi1
Section 8. Separability Clause. - If any provision or part hereof is held invalid
or unconstitutional, the remaining provisions not affected thereby shall
remain valid and subsisting.
Section 9. Repealing Clause. - Any law, presidential decree or issuance,
executive order, letter of instruction , administrative order, rule or regulation
contrary to or inconsistent with the provisions of this Act is hereby repealed,
modified or amended accordingly.
Section 10. Effectivity Clause. - This Act shall take effect fifteen (15) days
after its complete publication in the Official Gazette or in two(2) newspapers
of general circulation.

Approved