Development and Present Status of Criminal Libel


         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 paper’s consistent attacks against Colonel William Cosby, the Royal Governor of New York. In his defense, Zenger’s counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby were “the right of every free-born subject to make when the matters so published can be supported with truth.”[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 country’s ruin and thy country’s shame!/ Go wretch! Resign the Presidential chair/Disclose thy secret measures foul and fair…/ Go scan, philosophist, thy [Sally’s] 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 newspaper’s 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 Hamilton’s 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 malice”–that 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.

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Criminal Law, History, Libel, Penal Code and tagged , . Bookmark the permalink.

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