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Friday, July 04, 2008

Analysis: Setbacks for media

By Amando Doronila
Philippine Daily Inquirer
First Posted 01:22:00 07/04/2008

MANILA, Philippines—In a span of four weeks last June, the Philippine media suffered setbacks from decisions in regional trial courts that tended to undermine the freedom of the press and to reinforce the police powers of the state in restricting the scope of press coverage of events disruptive of public order.

On June 20, a Makati regional trial court dismissed charges laid by journalists and media organizations against security officials over the arrest of media workers covering the seizure by mutinous soldiers of the Peninsula Manila hotel in November last year. Regional Trial Court Judge Reynaldo Laigo held that the officials justified the arrest of the journalists who refused to heed orders of police authorities to leave the hotel premises by their 3 p.m. deadline. This decision was criticized by media organizations as setting a dangerous precedent that restricts movements of media to cover turbulent events from an objective perspective.

This decision followed a verdict handed down by another Makati regional trial court on June 2, convicting of libel Ninez Cacho-Olivares, publisher and editor in chief of the Daily Tribune newspaper, over an article her paper published on June 28, 2003, accusing a group of lawyers from the Villaraza Cruz Marcelo and Angangco law office of alleged graft or corrupt practices by taking advantage of the firm’s allegedly close relationship with President Gloria Macapagal-Arroyo to influence the government to render a decision favorable to one of the parties involved in the construction of Ninoy Aquino International Airport’s Terminal 3. The offending article was titled “Firm’s Partners Ensure Victory for AEDC,” referring to the Asian Economic Dragons Corp.

It is not the purpose of this article to summarize the legal points of the decision, which are already publicly known. Instead we will highlight the points that: first, the decision has sparked a lively debate in journalistic and legislative circles over a demand by media organizations to remove the criminal penalty for libel from the penal code; and, second, that the decision underscores a recent tendency of our trial courts to become less lenient to journalists accused of libel.

The Olivares case stands out for its extraordinarily harsh decision. The court sentenced Olivares to a maximum of two years, 10 months and 40 days in prison, and pay the complainants P33,732.25, plus interest, for actual damages, as well as P5 million in moral damages, considering the professional standing in society of the group of lawyers she had libeled. The criminal penalty and civil damages awarded to the complainants were considered in legal circles as extraordinarily stiff for a libel case in the Philippines.

The judge slapped the severest penalties under the penal code despite a memorandum issued by the Supreme Court on Jan. 25, 2008, expressing preference for the imposition of a fine rather than imprisonment. The judge, in justifying the decision, pointed out that the circular allowed the court, in the exercise of sound discretion, the option to impose imprisonment as a penalty, “whenever the imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice.”

The decision said that in the case, “the penalty of imprisonment is proper. It appears that the attack by the accused on private complainants was calculated and intentional. In fact, on record, several articles were published by accused in a few months, constantly and incessantly aimed at private complainants. The libelous acts she committed are serious, considering her deliberate act of constantly targeting private complainants and her utter failure to verify false claims. A mere fine would depreciate the seriousness of the offense.”

The court rejected the defense that Arturo Villaraza, lead partner in the Villaraza Cruz Marcelo and Angangco law office, also known as “The Firm,” was a public official or public figure. The court held that while the private complainants’ former colleagues were appointed to certain government positions, this did not make those who remained public figures. “They remained as private citizens, not having performed any act of voluntariness that would warrant a change in their position,” the court said. “With these findings, the defense of the accused that the article was fair comment on a matter of public interest cannot be upheld.”

The court further held: “In any event, this court also finds that the publication of the article is attended with malice in fact and bad faith, as shown by the unrebutted evidence.

Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed… Malice is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof… Actual malice or malice in fact is proven by showing that the publication was made with knowledge that it was false or with reckless disregard of whether it was false or not.”

The decision now shifts the battle for press freedom to the legislative arena to remove the penal provisions for libel. Indeed, hefty damage awards are as intimidating and financially ruinous to news organizations and journalists. There is no room for complacency on the part of journalists. These decisions should put journalists on guard for things they can’t do.