Monday, September 08, 2008

On Libel, Press Freedom and the Right to Information

Last week I attended a hearing at the House of Representatives conducted by the Committee on Revision of Laws to deliberate a very interesting proposal: the decriminalization of libel. There are several bills pending right now in Congress which all seek to abolish jail sentences for libel and instead just increase the monetary fines as penalty. Congressman Gigi Aggabao of Isabela also filed a bill which differentiates "political libel" from "private libel" and his version proposes to preserve jail sentences for "private libel" (or those involving private individuals) while decriminalizing "political libel" (those involving public figures).

Retired Supreme Court Justice Vicente Mendoza was one of the resource speakers and he made a well-researched opening statement and pretty much dominated the discussion with his deep knowledge of libel-related jurisprudence. It might interest people to know that historically, libel statutes where enacted because in the old days people in America and Europe would challenge each other to a duel (first with swords and later with pistols) every time one person felt his honor insulted by another. These periodic duels between "gentlemen" caused public disturbances thus lawmakers saw the need to craft laws that would settle more peacefully disputes involving personal honor. Thus, libel had its origins as a crime against public order and not as a crime against honor.

We Filipinos don't have a "dueling" culture. Granted, there might have been duels during the Spanish period but this was more or less limited to the Spaniards then living in the country or the Hispanized Indios (I seem to remember reading that Jose Rizal challenged someone to a duel but was talked out of it by his friends). Our abhorrence to direct, face-to-face confrontations is legendary and this, ironic as it sounds, might be the reason why a libeled person would rather just hire a hitman instead of openly challenging his opponent to a gun duel. This "allergy" towards open confrontation may partly be the reason why so many journalists are being killed in the country today.

Justice Mendoza made it clear from the start that he is not in favor of decriminalizing libel. He made two compelling arguments. One, decriminalizing libel may escalate attacks on the press as we will be taking the only legal means possible for a person to get the "satisfaction" of seeing his tormentor in jail. Two, decriminalizing libel would also be bad for public service. Since journalists can write libelous remarks without fear of getting jailed, no person of right mind would run for public office anymore. Difficult as it is to attract good people to join government, decriminalizing libel would be adding another "disincentive" and the only types of people politics will attract are those who don't care about how others perceive them and those who are insensitive to public opinion (in other words, ang mga "makakapal ang mukha").

Under present laws, it is very hard to convict someone of libel in this country because even if an offended party, say a mayor, was able to prove that what was written about him was false, he still have to prove it was malicious. Proving malice is very difficult. If the offended mayor has some evidence for instance that the journalist accepted money from his politicial opponent to hit him in media, then that could be sufficient grounds for a conviction. But it is very hard to pin down "malicious intent" and usually most libel cases are thrown out because of the inability of the complainant to prove malice on the part of the offending journalist. Recently, the Supreme Court handed down a memo instructing all judges "as much as possible" not to mete out prison sentences to journalists but to only impose fines on journalists found guilty of libel.

It is therefore not surprising that most journalists are unconcerned about their libel cases: they all say they will be acquitted in the end. What they are actually more concerned about is harassment. Harassment of journalists can take various forms - a telephone call to their publisher, anonymous death threats, malicious prosecution, etc. - the list could go on and on and is limited only by the imagination and "creativity" of the harasser. One resource speaker at the hearing, Benny Antiporda of the National Press Club, narrated that journalists would often be arrested on a Friday or a day before a long holiday so that they would be spending a weekend in jail. This actually happened to my journalist-wife who was charged with libel by defeated senatorial candidate Chavit Singson for an article she wrote in Newsbreak Magazine entitled "The Second Gentleman." (you can read my blog entry about it here. Also, a tip to journalists with pending cases: always carry P10,000 in cash on your person because you'll never know when that subpoena will strike). Of course, malicious prosecution happens not only to journalists but to anyone who have powerful enemies in this country, as Justice Mendoza correctly pointed out to Mr. Antiporda, adding that it should probably be tackled in another hearing or some other fora.

It is often said that the Philippines has one of the "freest" press in Asia. I remember that former Singaporean Prime Minister Lee Kuan Yew derided our free press and claimed that "too much free speech" (if there is such a thing) has proved to be more of a bane than a boon to the Philippines. It would have been so easy to dismiss Lee Kuan Yew's statements if not for the fact that he was able to transform his tiny nation-state from being a malaria-infested Third World country into a First World one. It is hard to argue with success - Singapore is the only First World country in Southeast Asia - and sometimes I think Lee Kuan Yew may be correct. While it may be true that the Philippines has one of the "freest" press in Asia, it is also one of the most dangerous places for a journalist to be in in the world. Dozens of journalists are killed each year, mostly from the ranks of provincial media, and what is sadder is that most of their cases are not solved.

Appropriating for itself the role of watchdog against official corruption, the media in this country has generally adopted an adversarial stance towards government. The image that mostly comes to mind when Filipinos think of journalists is that of the hard-hitting, no-nonsense, investigative reporter who will go at great lengths to uncover the truth. This is what every reporter strives at and tries to project. But investigative articles and news exposes of official malfeasances have not prevented corruption in government. Corruption in fact has only worsened despite media's vigilance. The threat of being exposed in media is no longer an effective deterrent for corrupt politicians and, if anything, the almost daily exposes of corruption has only made the people inure to the widespread corruption around them. To make maters worse, some members of the press have become corrupt themselves and most corrupt politicians have also corrupt mediapersons in their payolas. So what do you do when some of the so-called watchdogs have been co-opted and "tamed" by politicians? What can you do when the people are jaded and no longer shocked by tales of corruption and scandal?

Going back to our topic, press freedom is anchored on the people's right to information and their right to self-expression and it is enshrined in the UN's Universal Declaration of Human Rights. Article 19 of the said Declaration states "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." But on the other hand, Article 12 of the Declaration also guarantees the individual's right to privacy. It states: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation." So the question is, when this two universally guaranteed human rights collide which one is more supreme? Lawyers argue that the right to privacy takes a back seat to the people's right to know if an issue is imbued with public interest. Others claim that the right to privacy is absolutely inviolable and cannot be waived under any circumstances.

I tend to subscribe to the idea that the right to privacy is not absolute. I subscribe to the "sunlight principle"- any thing exposed to sunlight becomes clean - and I agree that public figures should not be allowed to hide under their right to privacy in order that malfeasances will be exposed. On the other hand, I also believe that private individuals should be protected from abusive media.

The only problem is, our congressmen cannot seem to find an appropriate definition for the terms "public figure" and "private individual." According to Justice Mendoza, the term "public figure" could refer not only to a politician but could also be anyone who is famous - a movie actor, a PBA player, a daughter of a senator, a prominent businessman, a newspaper columnist, etc. Everyone I think would agree that Senator Mar Roxas is a public figure - he is not only well-known throughout the Republic but he also actively courts public attention. But there are also people who, despite not actively seeking public attention become famous nonetheless like Lance Gokongwei for example. To his mind probably, Lance (I once saw him with his wife wearing only jeans and a t-shirt) believes he is a "private person" But the fact that his face is recognized throughout the country I think makes him into a "public figure."

The definition of who is a public figure and who is not is very important because it will determine who will be covered by the law currently being enacted. I recall that during the Senate investigation into the Jose Pidal controversy, First Gentleman Mike Arroyo sought protection under the "right to privacy" rule claiming that while his wife is famous, he has never courted public attention, hence he is a "private person." And the Senate bought his argument. In my opinion, Mike Arroyo stopped being a private person the moment he became the First Gentleman. Whether he likes it or not, whether he seeks publicity or consciously tries to avoid it is beside the point. The fact is, he is famous. And it could also be argued that the Jose Pidal case is imbued with public interest because it involves public money so the senators may have erred in their decision.

I sense that there is already a growing consensus towards the Aggabao version. which will decriminalize political libel but preserve the law for private libel. Everyone seems to agree that private individuals are entitled to be "thin-skinned" while public figures, since they crave publicity, could not. As they say, a person appearing before the TV camera should be able to stand the heat of the spotlight. The word "public figure" seems easy enough to define but lawyers have a way of complicating things, just like what happened during the deliberations for the Anti-Terrorism bill. Justice Mendoza suggested that if the lawmakers cannot agree on a definition, why not just leave it to the courts to decide, on a "case to case" basis, who is a public figure and who is not. But the problem with giving our judges leeway in interpreting the law is that it would potentially open it to abuse and result in arbitrary decisions.

Due to lack of time, the congressmen left the "public figure-private person" issue unresolved. The Committee on Revison of Laws will be conducting a third and final hearing on the proposal sometime this September and hopefully by then, the bright legal minds in Congress would have come up with an appropriate definition for the term.

1 comment:

liyan icecream said...

wow.. ds helpd me a lot, bcuz next week we will be havng a debate in school, and our group is anti libel law, pro press freedom.. ang hirap kxe ang gusto kong side eh ung sa kabila..