media law – Page 85 – marichulambino.com

(Michael Parks. The Creation. Right-clicked from www.allposters.com, used here for educational, non-commercial purposes, free service by blog-use of image provided by and from said site)

I know. We shouldn’t pay attention to practically anonymous, unidentified, unconfirmed, unverified, non-scientific predictions of the end of the world, like the letter circulating through on-line journals, emails, and blogs from a supposed Brazilian teacher who has supposedly made 80,000 correct predictions, and who predicted today of a deadly earthquake on July 18, 2008, Friday. (see www.inquirer.net, Saksi of Channel 7, and DZMM news.) Repent! Repent, for the kingdom of heaven… (i’m using my Robert Powell British accent) is at hand! (actually, that wasn’t the line of Robert Powell, he was on a hill and spoke of the beatitudes, “Blessed are you when men shall revile you, and persecute you. …etc.” and he said in his British accent : “Rejoice…and be exceedingly glad. For the kingdom of heaven… is at hand.” It was a gentle, happy scene.)

But so widespread has the circulation of the letter been in the internet that the Philippine Institute for Volcanology and Seismology (Philvolcs) through its director, Renato Solidum Jr., came out with a statement saying “there was no basic science behind it.”

So many people have nothing to do that they have the time and the cluelessness to forward any garbage email that they get through the cellphone or their computers. Are you one of them?

Anyway, here’s a little-known provision in the Revised Penal Code, Article 154. I don’t like this provision, among many other provisions in the crime book. (Whenever i cite or quote provisions in the Revised Penal Code, it doesn’t mean i like those provisions. It just means they’re there. They’re laws. I bring them up because as long as they’re laws they can be enforced, and no one’s doing anything about them):

Anyway, here it is: The first paragraph punishes (1) the publication “as news any false news” (that’s one element, (2) “which may endanger the public order” (that’s the other element), or “cause damage to the interest or credit of the State (that’s the alternative element; alternative to the second); as follows:

(One may argue that this may not apply to the internet; prosecution lawyers might tell you : “matters of defense.” It means you can raise it if you want to, in your defense. On the other hand “publication” can be construed to also include materials disseminated through the internet. You can raise your defenses.)

“Revised Penal Code. Art. 154. Unlawful use of means of publication and unlawful utterances. – The penaltyof arresto mayor and a fine ranging from 200 to 1,000 pesos shall be imposed upon:

“1.Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State. XXXX”

The “report” has to potentially endanger the public order, e.g., it may cause panic.

But how does one measure that? It says “may”. Predictive.

Are you about to punish someone for his predictions based on your own prediction of the possible consequence of public disorder? (i told you, i have to suppress my philosophic side….)

Anyway. That’s the provision. Like all other provisions in the Revised Penal Code, it requires criminal intent. So, it may be asked, “What if i honestly believed the prediction to be true?”

Matters of defense.

The tricky thing about Nostradamuses, doomsday predictions, panic, public disorder, and the Revised Penal Code, is of course obvious. If they were true, nothing more and nothing else matters. Live and love to the fullest. (The late Christopher Reeves when asked for advice, once said: “use your best linen. Use them everyday.”)

Name of photographer not indicated. Woman Communicating with Tower in the Background. Used here for educational, non-commercial purposes, free service by blog-use of image provided by and from www.allposters.com .

Having worked with some of the private prosecutors in this (the libel suit) case, in the plunder case People vs. Estrada, i probably have a conflict of interest; (and, by the way, parenthetically, a long time ago, about 2004, the Daily Tribune mentioned my name with an unfavorable adjective preceding it once or several times in connection with my work in the plunder case and never got my side; years later, i publicly came to the defense of the newspaper during those raids when the President declared a “state of emergency” and will always do so; for any media outfit, when State authorities encroach on our rights; parenthetically, i also vigorously stated publicly, several times, that Estrada had right to show his biopic, having seen the vcd version of it before the MTRCB censored it; and will always do the same for any filmmaker ). I’m disclosing my conflict of interest; the same cannot be said of many media entities who have masters to serve. Anyway, that’s out of the way; on the RTC decision, i don’t seem to have a copy of the decision of the court so i probably cannot give an opinion on it; it’s like reviewing a movie you never saw or reviewing a book you never read; you cannot just base it on the movie trailer or the book synopsis written at the back of the book.

[It would be a great service to mankind (or the human race) if on-line news reports of cases or disputes have a link to a page containing the complete decision or order, but then that would be in PDF file; it’s time-consuming to scan then upload; because courts do not hand out soft copies nor post their decisions (except the Supreme Court)].

The general rule in libel law is that “Every defamatory imputation is presumed malicious; truth is not a defense”. That is, the moment a person is maligned (or defamed), the “maligner” is presumed to have been motivated by ill will. This is the only criminal law provision; that is (of the 300 or so provisions in the Revised Penal Code) and hundreds of special criminal laws, the libel law is the only criminal law provision that presumes malice. In ALL criminal cases, there is a presumption of innocence; in libel however, the only overt act required to establish malice is simply the defamatory imputation; once that is shown, malice is presumed; it’s called MALICE-IN-LAW. BUT, but, BUT: if the accused in a libel case can show that the report is based on “good motives or justifiable ends”, that is:

1) The report or statement is a matter of public interest and concern (for example, it involves public officials or public figures and their public activities) AND

2) The report or statement is true; OR

3) If false, it is based on credible sources and the reporter verified, but (for example when the events unfolded) the report turned out to be false, it was an honest mistake and not a “reckless disregard etc.” .

If the accused in a libel case is able to show these three (well, not the three but number one and number two together; or number one and number three together), then he/ she is home; the burden shifts back to the prosecution. The prosecution now has to show that: The report or statement was absolutely false and not only was it absolutely false, there was “reckless disregard,”, i.e., there were no sources at all or the sources were all bogus. This is called MALICE-IN-FACT. (for example, intelligence reports; in Brillante vs. CA and Jejomar Binay where the accused relied on intel reports, the accused was convicted of libel).

Other examples of bogus sources are text messages from people you don’t know. (That’s why i’m surprised when, during live reports, the news anchor or reporters says “Text messages are going around that he is the financier, etc…” and they don’t know who are sending those text messages!; and those news anchors and reporters get away with it; they’re still broadcasting today.) I’m digressing. That’s because you didn’t upload a copy of the decision, hahaha.

Or maybe the report doesn’t have any sources at all. If it can be shown to be absolutely false and not just the result of an honest mistake but that, the report had no sources at all or was based on fabricated sources or bogus sources, the accused would be found liable.

But this is a tall order. I said here, absolutely false. Is there anything that is absolutely false? (oh… my philosophical side is coming out, i have to suppress it, hahaha) In New York Times vs. Sullivan, the Supreme Court in effect said that if there was some truth to the report or if the report is substantially true, the Court will rule in favour of protecting the ability to report freely (the Court said it better rhetorically).

And not only do i ask the question, is there anything that is absolutely false; in Hustler Magazine vs. Falwell, the Supreme Court said “and there is no such thing as a false opinion”.

The most “backgrounded” news report of this case was written by Carmela Fonbuena of www.abscbnNEWS.com/ Newsbreak , although there was no link to the decision.

According to the report, the Court here considered the complainants The Firm and Atty. Villaraza as private entities.

That brings us back to: FIRST BASE! Accused cannot get home. It makes it difficult, almost impossible for the accused to get home if the Court considers the “persons maligned” as private entities. (As stated in the second paragraph here, the general rule sets in: presumption of malice). The only way to get out of this is to show that there was no defamatory imputation, i.e., the report was not derogatory to The Firm or Atty. Villaraza; or to show that they are public figures. There are nine or so categories of public figures; the last category also specific but catch-all, but then, you ask, but for how long is one a public figure?