Decriminalizing libel Towards true self-regulation

Presented at the UP Law Center February 17 roundtable discussion on the implications of the UNHRC view that the Philippine libel law is incompatible with the ICCPR. Adapted from the author’s Business World column of February 3, 2012.


THE CONVICTION for libel in 2007 of Davao broadcaster Alexander Adonis, for which he was sentenced to a prison term of two years to four years and six months, has been declared incompatible  by the United Nations Human Rights Committee (UNHRC) with the International Covenant on Civil and Political Rights to which the Philippines is a signatory. 

But Adonis’ conviction was not only flawed; it was also a clear demonstration of the repressive and colonial character of the libel law that has been in the Revised Penal Code since 1930—or 16 years before Philippine independence was restored in 1946.

The law against libel has primarily been used to suppress free expression rather than to address media abuse . A libel law can be a legitimate means of redress for people the media have aggrieved, and  can even encourage greater media responsibility. But the  antecedents of the present libel law, in both the Spanish and US colonial periods, was primarily used to   prevent criticism of both colonial regimes and to curb Filipino demands for independence.  The present libel law has inevitably been used to intimidate and silence journalists.

The libel law  during the Spanish colonial period was replaced during the American occupation by Act No. 277. It  was used to silence the critical and nationalist press starting in 1904.  Act 277 criminalized libel, said then Governor General William Howard Taft, because Filipinos are “a strange people unused to the freedom of the press.” 

The landmark libel case during the US colonial regime was the 1908  suit filed by then Secretary of the Interior Dean Worcester against the nationalist, pro-independence newspaper El Renacimiento (The Rebirth)  for its editorial “Aves de Rapina” (Birds of Prey).  

In that editorial written by Fidel Reyes, El Renacimiento described “the eagle” (the US) as the “most rapacious” bird of prey, and criticized certain US colonial government officials “who, besides being eagles, have the characteristics of the vulture, the owl, and the vampire.”  These officials, said the newspaper, among other offenses pretended to be studying the mountain tribes, but in reality were looking for gold deposits in the mountains of Luzon.

 Although the paper did not name him, Worcester felt alluded to and filed a libel suit which resulted in the conviction of editor Teodoro M. Kalaw and publisher Martin Ocampo for criminal libel. Kalaw and Ocampo appealed the decision before the Philippine Supreme Court and later, the US Supreme Court, but their convictions were upheld in both courts. Although pardoned by then US Governor-General Francis Burton Harrison in 1914, they had to pay the then huge amount of P60,000 in fines, which so crippled the paper it ceased publication.  

With some changes, the libel laws remained in place even after 1932 when the Revised Penal Code went into effect.  It has since been in the RPC despite calls for its decriminalization from journalists’, free expression, and media advocacy groups. 

Libel as a criminal offense mandates prison terms of from six months to six years and/or a fine of 200 to 6,000 pesos. But in more recent cases, those convicted of libel have been fined more than these amounts in addition to being sentenced to prison terms.  Libel’s being a criminal offense has also made it specially troubling for journalists even prior to conviction, since anyone accused of libel can be arrested, and unless able to post bail, imprisoned pending the outcome of the case. In one more demonstration of how repressive a criminal libel law can be, the police in a number of occasions has served warrants of arrest against journalists being sued for libel on a Friday afternoon to prevent their being able to post bail.

Before Gloria Macapagal-Arroyo came to power, the most prominent post-martial law libel case in the Philippines was the late President Corazon Aquino’s  suit against the Manila newspaper Philippine Star’s publisher Maximo Soliven and its columnist Luis Beltran—the first by any sitting President–for the latter’s statement in his column that Mrs. Aquino “hid under her bed” during the 1987 coup attempt against the Aquino administration.

Soliven and Beltran were convicted, although their conviction was reversed after Beltran’s death. For his part, while still President, Joseph Estrada also threatened to sue the Manila Times for libel in connection with an article which among other statements, said that Estrada might have been “the unwitting Ninong” or godfather of a contract disadvantageous to the government. He withdrew the suit when the paper apologized, but the owners felt compelled to sell the newspaper, which for a time was in the hands of an Estrada associate.

The nine-years during which Mrs. Arroyo was in power were particularly problematic, notably for the  surge in the number of journalists killed, the 11 libel suits her husband filed against 46 journalists starting in 2006, and for the conviction and imprisonment of  Adonis in 2007, and of other journalists.  

The filing of libel suits by government officials against critical journalists continued in the same year. Newsbreak editor Gemma Bagayaua Mendoza was arrested in March in connection with a P100-million libel suit filed by Ilocos Sur Governor and then administration senatorial candidate Luis “Chavit” Singson.  A correspondent of dzRH radio in Bicol critical of local government was also arrested and jailed in April for a 10-year old libel case filed by a board member of   the Albay Electric Cooperative.

And yet the Philippine campaign to decriminalize libel has been of at least three decades’ duration, and may be viewed as part of the international campaign against defamation and insult laws various groups in several countries have been waging.     

The campaign is a perfectly valid response to the constraints criminal libel has imposed on journalism practice and the press in the Philippines, where a culture of secrecy, abuse of power, human rights violations, a bureaucracy and dministrations committed to opaqueness rather than transparency have made democracy more often a farce than a reality.

The present libel law has made the media’s role of monitoring governance among others, and assisting the public through meaningful and accurate  information in the necessary task of exacting official accountability, more difficult than it already is: the law has worked at cross purposes with the imperative of democratizing Philippine society through an informed citizenry able to discharge its duties as the country’s sovereign.

The UNHRC view is by far the most significant development in the decades- long fight against a law whose repressive and colonial roots have no place in a country with such democratic pretensions as the Philippines.  It is also a major victory in the campaign to enhance the right to free expression and press freedom.

But a caveat is in order.

Assuming it will indeed happen, the decriminalization of libel  presents the press and the media with both a challenge as well as an opportunity.  It will require them to raise their capacity for self-regulation beyond its current level of  deficiency. A working self-regulatory media regime will require both rigorous media observance of the press and media’s own protocols as well as widespread public understanding of the values, methods and ethical and professional standards of the press so that it can effectively monitor and curb media abuse.  

I would also  emphasize the need for a sustained campaign for public media literacy and awareness not only of those values and standards, but also of the  variety and availability of the means of redress available for those aggrieved by media. 

Among journalists in whatever medium, whether print, radio, TV or online, an even greater emphasis on the rigorous observance of and compliance with, the ethical and professional standards of journalism should be undertaken by journalists and media advocacy groups as well as by the schools where journalists are trained.  The latter will require engagement with the Commission on Higher Education towards raising the standards of instruction of the over 100 colleges and universities offering journalism, broadcasting, mass communication and communication arts courses.

Together with these steps we also need to strengthen such self-regulatory media mechanisms as the KBP, the  regional and national press councils, and media monitoring publications, among others,  in order to provide the public with accessible and credible means of redress short of the filing of libel suits, which for too long has been the preferred means of addressing media abuse.

Without these steps violations of the ethical  and professional standards of the press and the media will continue to the detriment of both the journalism profession as well as the public, which is likely to oppose  the decriminalization of libel unless it is assured that there are available means of redress for those who have been wronged by the media and the press.

As to the form  the decriminalization of libel should take, I would argue that  provided all these conditions are in place, it should eventually consist of the outright repeal of the RPC articles on libel and defamation (Articles 355, 353 to 359), leaving only the pertinent articles of the Civil Code (RA386) to address media abuse of the subjects and targets of their reports, commentary, and analyses.