COUNTER AFFIDAVIT

REPUBLIC OF THE PHILIPPINES )

PROVINCE OF __________________ ) S.S.
__________________ )
x-----------------------------------x

I, __________________, of legal age, married, and a

resident of ______________________, after having been sworn
to in accordance with law hereby depose and state:

1. That I am the respondent in the criminal complaint for

Libel, docketed as __________________, and filed by
complainant __________________;

2. I vehemently deny the allegations raised by the

complainant in his complaint-affidavit that I committed
the crime he is now imputing against me. No proof was
ever presented by the complainant that I wrote and
distributed a publication called the __________________
and the __________________. As a matter of fact, if we are
to examine their attached Annexes “D” and “E”,
nowhere does it state in these publication that that I
am the author, editor or publisher of the
__________________.

3. The only evidence of the complainant in linking me to

the statements complained of were the alleged
admission before __________________, and the CCTV
footage purportedly showing that I distributed copies
of the __________________. A copy of an audio recording
of the alleged admission was submitted by the
complainant to the Honorable Prosecutor as his Annex
“F” whereas, in lieu of the said CCTV footage, only
screenshots thereof were presented by the
complainant as his Annex “G”.

4. It must be pointed out that the said recording, which

consisted of a mere thirteen (13) seconds, did not
establish the identities of the persons speaking, the
date and time it was taken and where the conversation
or recording took place. Most importantly, there was
no proper authentication by the person who actually
made the recording and neither was there a
declaration that the sound recording represents a true
portrayal of the voices contained therein.
5. As held by the Honorable Supreme Court in the case of
Torralba v. People, G. R. No. 153699, August 22, 2005:

“It is generally held that sound recording is

not inadmissible because of its form where a
proper foundation has been laid to guarantee
the genuineness of the recording. In our
jurisdiction, it is a rudimentary rule of
evidence that before a tape recording is
admissible in evidence and given probative
value, the following requisites must first be
established, to wit:

(1) a showing that the recording device

was capable of taking testimony;
(2) a showing that the operator of the
device was competent;
(3) establishment of the authenticity
and correctness of the recording;
(4) a showing that changes, additions,
or deletions have not been made;
(5) a showing of the manner of the
preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony
elicited was voluntarily made without
any kind of inducement.” (Emphasis
and underscoring supplied)

6. For in truth and in fact, the said recorded

conversation, which the complainant submitted as
evidence in the instant proceedings, was obtained
illegally, in violation of R.A. 4200 or the Anti-Wire
Tapping Act, considering that it was made without
the knowledge and consent of any or all of the parties
to that conversation.

7. As held by the Honorable Supreme Court in the case of

Ramirez v. Court of Appeals and Garcia,  G.R. No.
93833 September 28, 1995:

“Section 1 of R.A. 4200 entitled, "An Act to

Prohibit and Penalize Wire Tapping and
Other Related Violations of Private
Communication and Other Purposes,"
provides:
 Sec. 1. It shall be unlawful for any person,
not being authorized by all the parties to any
private communication or spoken word, to
tap any wire or cable, or by using any other
device or arrangement, to secretly overhear,
intercept, or record such communication
or spoken word by using a device
commonly known as a dictaphone or
dictagraph or detectaphone or walkie-
talkie or tape recorder, or however
otherwise described.

The afore-stated provision clearly and

unequivocally makes it illegal for any
person, not authorized by all the parties
to any private communication to secretly
record such communication by means of
a tape recorder. The law makes no
distinction as to whether the party sought to
be penalized by the statute ought to be a
party other than or different from those
involved in the private communication. The
statute's intent to penalize all persons
unauthorized to make such recording is
underscored by the use of the qualifier
"any". Consequently, as respondent
Court of Appeals correctly concluded,
"even a (person) privy to a
communication who records his private
conversation with another without the
knowledge of the latter (will) qualify as a
violator" under this provision of R.A.
4200.” (Emphasis and underscoring
supplied)

8. Section 4 of R.A. 4200 declares that any

communication or spoken word, or the existence,
contents, substance, purport, effect, or meaning of the
same or any part thereof, or any information therein
contained obtained or secured by any person in
violation of the Anti-Wire Tapping Act shall not be
admissible in evidence in any judicial, quasi-
judicial, legislative or administrative hearing or
investigation. This includes, with all due respect, the
instant proceedings or investigation being conducted
by the Honorable Prosecutor.
9. Similarly, the Honorable Prosecutor should not give
weight to the complainant’s allegation of a CCTV
footage which was never presented in evidence. It
must be stressed that only screenshots coming from
the alleged CCTV footage were submitted and yet, the
same were not properly authenticated by the person
who actually made the CCTV recording and its
subsequent conversion to photographic images.
Neither was it established that the video recording or
the photos produced therefrom were accurate
reproductions of the CCTV footage.

10. Complainant’s Annex “G” failed to satisfy the

requirements for authentication set by the Honorable
Supreme Court, in light of its foregoing
pronouncement, and pursuant to the Rules on
Electronic Evidence. Simply put, the said evidence
cannot be relied upon, absent their requisite
authentication, in view of the fact that: (i) the manner
of preservation of the recording that could ensure their
trustworthiness was not properly observed, and (ii)
there is no guarantee that the CCTV footage and
the resultant photos were not manipulated,
altered, or otherwise falsified after their creation,
and that the subject photos are faithful excerpts
of the CCTV footage which fairly and accurately
represent the event in question.

11. Be that as it may, an examination of the

__________________ would show that the statements
found therein were reasonably worded—without the
use of unnecessary, discrediting, or defamatory
remarks. There was never an instance that the
aforesaid publication cast aspersion on the character,
integrity and reputation of the complainant thereby
exposing him to public ridicule. In fact, the tenor of the
__________________ was to basically
encourage homeowners of __________________ to voice
their questions and concerns so that they can be
properly addressed and resolved. These statements
are not malicious in nature for the purpose of
discrediting the complainant, but were done for the
purpose of protecting the interests of the homeowners
as a whole and are thus, in the nature of a privileged
communication and not libelous.
12. To qualify as privileged communication under
Article 354 of the Revised Penal Code the following
elements must be present: (1) the person who made
the communication had a legal, moral, or social duty
to make the communication, or at least, had an
interest to protect, which interest may either be
his own or of the one to whom it is made; (2) the
communication is addressed to an officer or a
board, or superior, having some interest or duty
in the matter, and who has the power to furnish the
protection sought; and (3) the statements in the
communication are made in good faith and without
malice (as discussed in Binay v. Secretary of Justice,
G.R. No. 170643 September 8, 2006).

13. In the case at bar, the publication of the

__________________ was made under a legal, moral, or
social duty to protect the interest of the homeowners,
particularly, to ensure that their funds are properly
managed.

14. Secondly, the statements made in the

__________________ are fair comments directed to the
Board of Directors of __________________, in reminding
them that they occupy a position of responsibility and
that they have a fiduciary duty to the homeowners—in
short, they are required to be accountable,
transparent and fair in all their dealings, and to
act in the best interests of the homeowners.

15. Thirdly, the statements in the subject publication

were made in good faith and without malice. In order
to constitute malice, ill will must be personal. So
if the ill will is engendered by one's sense of
justice or other legitimate or plausible motive,
such feeling negates actual malice (as discussed in
Mendez v. CA and People, G.R. No. 124491. June 1,
1999).

16. An essential element in Libel is the existence of

malice when the public and malicious imputation was
made. There is malice when the author of the
imputation is prompted by personal ill-will or
spite and speaks not in response to duty but
merely to injure the reputation of the person who
claims to have been defamed (Ledesma vs. Court
of Appeals, 278 SCRA 656).
 17. This notwithstanding the fact that the
complainant did not even make a categorical denial of
the truth of the allegations stated in the subject
publication. Thus, the burden of proving the truth
of the alleged imputations did not shift to the
party publishing the __________________.

18. Clearly, the presumption of malice is done away

with when the alleged defamatory imputation is a
qualified privileged communication.

19. Lastly, it must be emphasized that “While

probable cause should be determined in a summary
manner, there is a need to examine the evidence with
care to prevent material damage to a potential
accused’s constitutional right to liberty and the
guarantees of freedom and fair play, and to
protect the State from the burden of unnecessary
expenses in prosecuting alleged offenses and
holding trials arising from false, fraudulent or
groundless charges.” (Tan vs. Matsuura et. al.,
G.R. Nos. 179003 and G.R. No. 195816, January 9,
2013).

WHEREFORE, premises considered, it is most

respectfully prayed that the instant complaint for Libel, be
DISMISSED for utter lack of merit and the absence of
probable cause.

IN TRUTH OF THE FOREGOING, I have hereunto set

my hand this _____________ at _____________________,
Philippines.

__________________
Affiant

SUBSCRIBED AND SWORN TO BEFORE ME, this

______________ at ______________, Philippines. I hereby certify
that I personally examined the affiant and that I am fully
convinced that he executed this Counter-Affidavit freely and
voluntarily and that he fully understood what were stated
herein.