BORJAL v.
CA P1,815,000, which would be funded through solicitations
14 January 1999 | Bellosillo | G.R. No. 126466
"Privileged Communication; Qualified & Absolute:
Also Doctrine of fair comment"
Article 353. Definition of libel. - A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary,
or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one
who is dead.
Elements:
1. That, there must be an imputation of a crime, or a
vice or defect, real or imaginary, or any act,
omission, condition, status or circumstance;
2. That the imputation must be made publicly;
3. That it must be malicious;
4. That the imputation must be directed at a natural
person or a juridical person, or one who is dead;
5. That the imputation must tend to cause the
dishonor, discredit, or contempt of the person
defamed.
SUMMARY:
Petitioners Arturo Borjal and Maximo Soliven were among the
incorporators of Philippine Today, Inc., a daily newspaper; they
held positions as its president and a regular writer running the
column “Jaywalker”, and Publisher and Chairman of its Editorial
Board respectively. On the other hand private respondent
Francisco Wenceslao served as a technical adviser of the
Chairman of the House of Representatives Sub-Committee on
Industrial Policy (Congressman Sison). In response to the
transport crisis, the House of Representatives Sub-Committee
on Industrial Policy decided to organize the First National
Conference on land Transportation (FNCLT) to be participated
in by the private sector and government agencies of interest.
The expenses for the conference approximately amounted to
from various sponsors. As the elected Executive Director,
Private respondent Wenceslao wrote numerous solicitation
letters to the business community for the support of the
conference. Thereafter, a series of articles written by petitioner
Borjal was published in his column Jaywalker. The articles dealt
with the alleged anomalous activities of an "organizer of a
conference" without naming or identifying the private respondent
or FNCLT. In response, the Private respondent sent letters to
The Philippine Star insisting that he was the "organizer" alluded
to in the said columns and refuting the matters contained
thereof. The private respondent also filed a complaint with the
National Press Club (NPC) against petitioner Borjal for unethical
conduct by allegedly using his column to obtain contracts for his
public relations firm. Then, the private respondent filed a
criminal case for libel against the petitioners, however the case
was dismissed. The private respondent instituted a civil action
for damages based on a libel subject, in which both Trial Court
and CA ruled in his favor.
The SC granted the petitioner for review filed by the petitioners
and dismissed the complaint for damages against them. It held
that the questioned articles written by Borjal did NOT identify the
Private respondent as the organizer of the conference. The
questioned articles are regarded as qualified privileged
communications which exempts the petitioner from liability.
Moreover, the “public official doctrine” laid down in New York
Times v. Sullivan is applicable. It states that “The guarantees of
freedom of speech and press prohibit a public official or public
figure from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the
statement was made with actual malice.” Nonetheless, the
private respondent failed to prove actual malice of the petitioner
Borjal in writing and publishing the questioned articles.
ISSUES: W/N the petitioner is guilty of Libel - NO.
1. W/N the questioned articles written by Borjal identifies
Private respondent as the organizer of the conference -
NO
 2. W/N the disputed articles constitute privileged
communications as to exempt the author from liability -
YES.
3. W/N “public official doctrine” laid down in New York
Times v. Sullivan is applicable - YES.
4. W/N malice by petitioner Borjal can be inferred from the
writing and publication of the articles in question - NO.
FACTS:
● Petitioners Arturo Borjal and Maximo Soliven are
among the incorporators of Philippines Today, Inc.
○ now PhilSTAR Daily, Inc., owner of The Philippine
Star, a daily newspaper.
● At the time the complaint was filed, petitioner Borjal
was its President and a regular writer running a column
“Jaywalker.” while Soliven was the Publisher and
Chairman of its Editorial Board.
● Private respondent Francisco Wenceslao is a civil
engineer, businessman, business consultant and
journalist by profession.
○ He served as a technical adviser of Congressman
Sison, then Chairman of the House of
Representatives Sub-Committee on Industrial
Policy
● In 1988, congressional hearings on the transport crisis
was undertaken by the House of Representatives Sub-
Committee on Industrial Policy.
○ Attendees agreed to organize the First National
Conference on land Transportation (FNCLT) to be
participated in by the private sector and
government agencies of interest to resolve the
said issue.
○ The primary objective of the conference was to
draft an omnibus bill that would embody a long-
term land transportation policy for presentation
to Congress.
● According to the private respondent, the expenses for the
conference approximately amounted to P1,815,000,
which would be funded through solicitations from
various sponsors.
● On Feb. 28, 1989, private respondent Francisco
Wenceslao was elected Executive Director.
○ As such, he wrote numerous solicitation letters to
the business community for the support of the
conference.
● Between May and July 1989, a series of articles
written by petitioner Borjal was published on different
dates in his column Jaywalker.
○ The articles dealt with the alleged anomalous
activities of an "organizer of a conference" without
naming or identifying the private respondent or
FNCLT.
● In response, the Private respondent sent a letter to The
Philippine Star insisting that he was the "organizer"
alluded to in petitioner Borjal's columns. In a subsequent
letter, he refuted the matters contained in said column
and openly challenged the petitioner as to its validity.
● Thereafter, the private respondent filed a complaint with
the National Press Club (NPC) against petitioner Borjal
for unethical conduct by allegedly using his column to
obtain contracts for his public relations firm, AA Borjal
Associate
○ In turn, Petitioner Borjan published a rejoinder
● Then, the private respondent filed a criminal case for libel
against the petitioners, among others.
○ The case was DISMISSED for insufficiency of
evidence - sustained by DOJ and Office of the
President
● The private respondent instituted a civil action for
damages based on a libel subject.
○ Petitioners interposed compulsory counterclaims
○ Trial court decided in favor of the PRIVATE
RESPONDENT and ordered the petitioners to
indemnify the private respondent
○ CA affirmed the decision but reduced the
monetary award. It ruled that:
 ■ The private respondent was sufficiently
identifiable, although not named
■ The private respondent was defamed by the
petitioner by describing him variously as
a "self-proclaimed hero," "a conference
organizer associated with shady deals who
has a lot of trash tucked inside his closet,"
"thick face," and "a person with dubious
ways
■ privileged character of the articles was
lost by their publication in a newspaper of
general circulation
■ Transgression of the rights of Wenceslao
was unnecessary in performance of
profession by the petitioner
■ Petitioner Borjal crossed the thin but clear
line that separated fair comment from
actionable defamation.
● Private Respondent Borjal appealed the reduction of the
amount of damages, however the same was denied.
● The petitioners filed for reconsideration, however the CA
denied the motion. Hence, the instant petition for review.
RULING: The SC granted the Petition for Review of Petitioner
Borjal and dismissed the complaint for damages against him.
In order to maintain a libel suit, it is essential that the victim be
identifiable although it is not necessary that he be named. It is
also not sufficient that the offended party recognized himself as
the person attacked or defamed, but is must be shown that at
least a third person could identify him as the object of the
libelous publication. Such requisites were NOT COMPLIED with
in the case.
1. The questioned articles written by Borjal do not
identify private respondent Wenceslao as the
organizer of the conference.
Element of Identifiability -
None of the articles referred to the private respondent as an
organizer of FNCLT, such that there were millions of “heroes”
of the EDSA Revolution and any of them could easily have been
an “organizer” of a “conference”; italicized in one article that said
organizers were “not specified”; the letterhead only mentions the
name of the private respondent as an Executive Director and
Spokesman but NOT an organizer; and the article entitled “Who
Organized NCLT?” Did not even mention the private
respondent’s name. Moreover, the private respondent admitted
that he was only one of several organizers of the conference.
Significantly, the private respondent himself entertained
doubt that he was the person spoken of in the petitioner’s
columns when he inquired the latter if he was the one being
referred to in the articles. Identification is grossly inadequate
when even the alleged offended party is himself unsure that
he was the object of the verbal attack.
2. Petitioner Borjal's questioned writings are NOT
“private communications” nor “fair and true report
without any comments or remarks” however, they are
within the exceptions of Art. 354 of The Revised
Penal Code for being Qualified Privileged
Communications.
The questioned articles dealt with matters of public interest
provided that FNCLT was an undertaking infused with public
interest. It was promoted as a joint project of the government
and the private sector, and organized by top government
officials and prominent businessmen. For this reason, it
attracted media mileage and drew public attention not only to
the conference itself but to the personalities behind as well.
The private respondent is regarded as a public figure as he
is the Executive Director and spokesman of the conference. All
the imputations against the private respondent necessarily bore
upon his official conduct and his moral and mental fitness as
Executive Director of the FNCLT - matters which the public has
the right to be informed.
While the petitioner’s articles may have been intemperate or
deprecatory, the privilege is not to be defeated. [D]ebate on
public issues should be uninhibited, robust and wide open,
and that it may well include vehement, caustic and
sometimes unpleasantly sharp attacks on the government
and public officials.
Fair Commentaries on matters of Public Interest are
privileged and constitute a valid defense in an action for
libel or slander. The guarantees of freedom of speech and
press prohibit a public official or public figure from recovering
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
actual malice (New York Times v. Sullivan).
The private respondent has the burden to prove the
existence of malice on the part of the petitioner, the
essence of the crime of libel. However, the private respondent
failed to substantiate by preponderant evidence that petitioner
was animated by a desire to inflict unjustifiable harm on his
reputation, or that the articles were written and published
without good motives or justifiable ends. On the other hand,
the Court found the petitioner to have acted in good faith.
Moved by a sense of civic duty and his responsibility as a
newspaperman, he proceeded to expose and denounce what
he perceived to be a public deception. While every citizen has
the right to enjoy a good name and reputation, petitioner Borjal
cannot be considered to have violated or abused his press
freedom. Moreover, the questioned articles cannot be
considered malicious as they can hardly be said to be
written with knowledge that these are false or in reckless
disregard of what is false or not. The article was based on
reasonable grounds formed after the petitioner conducted
several personal interviews and gathered documentary
evidence.
Lastly, the Court said that even assuming that the contents
of these articles are false, mere error, inaccuracy or even
falsity alone does not prove actual malice. Errors or
misstatement 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.
Notes:
● [Kinds 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.
○ 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."
● The enumeration under Art. 354 is not an
exclusive list of qualifiedly privileged
communications since fair commentaries on matters of
public interest likewise privileged.
○ The rule on privileged communications had its
genesis in the Bill of Rights of the Constitution
guaranteeing freedom of speech and of the
press.
○ In United States v. Cañete (1918), the Court ruled
that publications which are privileged for reasons
of public policy are protected by the constitutional
guaranty of freedom of speech. This constitutional
 right cannot be abolished by the mere failure of
the legislature to give it express recognition in
the statute punishing libels.
○ The concept of privileged communications is
implicit in the freedom of the press (Elizalde v.
Gutierrez).
● Privileged communications must, sui generis
(unique), be protective of public opinion.
○ Adherence to the democratic theory of free speech
as essential to collective self-determination. It
forgoes the strictly libertarian view that it is
protective solely of self-expression.
○ The restrictive interpretation on the penal provision
exempting from liability only private
communications and fair and true report without
comments or remarks defeats the objective of the
rule on privileged communications.
○ It suppress the healthy efflorescence of public
debate and opinion as shining linchpins of truly
democratic societies.
● Fair Commentaries on matters of Public Interest are
privileged and constitute a valid defense in an action
for libel or slander.
○ Doctrine of fair comment - generally, every
public and discreditable imputation is deemed
false (because of the presumption of innocence)
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.
○ Such discreditable imputation to a public
official must either be a false allegation of fact or a
comment based on a false supposition in order to
be actionable.
○ If the comment is an expression of opinion,
based on established facts, then it is immaterial
that the opinion happens to be mistaken, as long
as it might reasonably be inferred from the facts.
● [New York Times v. Sullivan, 1960s] Honest criticisms
on the conduct of public officials and public figures
are insulated from libel judgments. The guarantees of
freedom of speech and press prohibit a public official or
public figure from recovering damages for a defamatory
falsehood relating to his official conduct unless he
proves that the statement was made with actual malice,
i.e., with knowledge that it was false or with reckless
disregard of whether it was false or not.
○ Rationale: guarantee the truth of all their factual
assertions on pain of libel judgments would
lead to self-censorship, since would-be critics
would be deterred from voicing out their criticisms
even if such were believed to be true, or were in
fact true, because of doubt whether it could be
proved or because of fear of the expense of
having to prove it.
● [Ayers Production Pty., Ltd. v. Capulong] A public
figure is a person who, by his accomplishments, fame,
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.'
○ in other words, a celebrity.
○ Included are those who have achieved some
degree of reputation by appearing before the
public.
○ It includes anyone who has arrived at a position
where the public attention is focused upon him as
a person.
● [Presumption of Malice] Generally, malice can be
presumed from defamatory words, the privileged
character of a communication destroys the presumption
of malice.
○ The onus of proving actual malice then lies on
plaintiff.
● [Malice] Malice connotes ill will or spite and speaks not in
response to duty but merely to injure the reputation of
 the person defamed, and implies an intention to do
ulterior and unjustifiable harm
○ Malice is bad faith or bad motive.
○ It is the essence of the crime of libel.
● To be considered malicious, the libelous statements
must be shown to have been written or published
with the knowledge that they are false or in reckless
disregard of whether they are false or not.
○ “Reckless disregard of what is false or
not" means that the defendant entertains
serious doubt as to the truth of the
publication, or that he possesses a high degree
of awareness of their probable falsity.