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What is Libel and Why is it Dangerous for Press Freedom?

When does the law become a weapon?
by Erwin Colcol
Dec 8, 2021
Photo/s: Ara Eugenio

Journalists from seven news organizations were sued for libel and cyber libel by a cabinet secretary and a close associate of President Rodrigo Duterte in what media advocates described as a weaponization of the law to silence government critics.

Energy Secretary Alfonso Cusi and businessman Dennis Uy sought hundreds of millions of pesos in damages saying the journalists accused them of graft, when in fact, the media was citing a court document that made the allegation. Still, they said the reports were "malicious, defamatory and injurious” to their reputation.

At the center of the complaint is Uy's acquisition of a controlling stake in the Malampaya gas field, one of the main electricity sources of Luzon Island. It's the latest in the Davao-based tycoons many acqusitions that include telecom, shipping, schools, fastfood and schools.

The libel suits are a manifestation of the culture of impunity in the country where laws and policies are “weaponized” to force media to submit to authority, University of the Philippines journalism professor Danilo Arao said.

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“This sends a chilling effect on many journalists who would be forced to toe the line because of the threat of a libel suit,” he added.

The National Union of Journalists of the Philippines said: “For Secretary Cusi to say in his complaint that the journalists ‘accused [him] of graft’ is a total misunderstanding… The journalists did not accuse him; the complainants did."

What constitutes libel?

While it is a case commonly filed against journalists, any person who publicly and maliciously imputes a crime, vice, or defect on someone with the intent to dishonor or discredit can be charged with libel, according to the Revised Penal Code.

But it doesn’t necessarily mean that anyone who said or wrote something bad about another person can be convicted of libel. Under criminal law, it must be proven that the imputation is defamatory, which means there is an intent to dishonor or discredit another person, and malicious, or is motivated by ill-will and is meant to destroy or cause harm.

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Aside from being defamatory and malicious, the imputation must also be made publicly by means of printing, writing, or even theatrical exhibition to be considered libelous. The subjects of the statements should also be identified, either by direct mention of the name, descriptions, or likeness.

The Revised Penal Code, however, states that a defamatory imputation cannot be considered malicious if it’s part of a “fair and true report” of any judicial or legislative proceeding made in good faith and free from any comment or remark.

Although Cusi and Uy were named in the allegedly libelous news reports, the stories were based on the statements of the petitioners who sued the two officials for graft, Arao said. The supposedly malicious claims didn’t come from the journalists themselves.

“It's really a fair coverage, if you're asking me. Because malicious intent would have to be proven in the sense that the news media organization, let's say, sparked a destabilization machinery directed against Cusi et al. But that would be very, very hard to prove,” he added.

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How does libel create a ‘chilling effect’

While filing a libel case is a legal remedy for individuals whose reputations were damaged by malicious claims, it becomes dangerous when it is used to harass or cripple journalists and news organizations, Arao said.

“The act of filing by itself is already harassment regardless of the decision of the court whether it's for acquittal or dismissal,” he said.

“It has something to do with journalists being wary about filing stories that may ruffle some administration feathers,” he added.

One concrete form of harassment that journalists facing libel may experience is when the case was filed in an area far from their workplace, Arao said.

“If the journalist is based in Manila, [the petitioners] would file it in a faraway place so that it would be a bit of a hassle for many journalists to fly to another area just so they can appear in court,” he added.

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In some cases, journalists would also have to shoulder the lawyer’s fees and other expenses during a trial for libel, which Arao said could cause additional stress.

“It has all to do with the proverbial sword of Damocles hanging over the heads of journalists,” he said. “Sometimes, the weaponization is more subconscious rather than the physical inconvenience.”

What happens when journalists are no longer able to do their job properly due to the threat of libel? “The government’s mistakes would go unnoticed, their abuses unexposed, and their wrongdoings uncorrected,” the Supreme Court said.

How to prevent libel from being abused?

For the longest time, press freedom advocates and even lawmakers have been pushing to decriminalize libel so that it can’t be used to muzzle journalists who speak truth to power. It’s the practical way to prevent libel from being abused, according to Arao.

Currently, libel carries a penalty of up to six years in prison and a fine ranging from P200 to P6,000.

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“The bottomline here is that we cannot afford the current situation where libel would be penalized by imprisonment,” he said.

“When you decriminalize, you have to just pay for moral and exemplary damages. In other words, you only need to pay the aggrieved party for the damage that you've done,” he added.

Another, more radical approach is to abolish libel from the Revised Penal Code, Arao said, removing it from the list of criminal acts punishable under the law.

But whether libel is decriminalized or scrapped altogether, “the bottomline is that we cannot afford the continuation of the state of affairs,” Arao said.

“The chilling effect has been felt through the years, so the appropriate legal reforms should be done,” he added.


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