Published 17 August 2018, The Daily Tribune

Almost a century old, the Revised Penal Code—the country’s primary codification of criminal laws—is often called “archaic” and “ancient” among others, as many of its provisions have never been modified and are said to be outdated. One of these is the law on libel which, despite calls for its decriminalization, remains very relevant today.

Libel is defined by the Revised Penal Code 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 person or juridical person, or to blacken the memory of one who is dead.”

The law on libel is in place in recognition of the fact that freedom of expression is not absolute. As the Supreme Court has said in Lopez v. People (G.R. No. 172203, February 14, 2011), “free expression is not absolute for it may be so regulated that its exercise shall neither be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society.” Historically, however, libel has often been used as a tool by powerful individuals to silence journalists and scare them from writing unfavorable news about them.

Thus, journalists are the usual victims of harassment libel suits. Fortunately, both law and established jurisprudence provide sufficient protection for them.

Under Article 354 of the Revised Penal Code, “every defamatory imputation is presumed to be malicious even if it be true, if no good intention and justifiable motive for making it is shown.” This means that once it is established that the imputation is defamatory, the one who made the imputation is presumed to have acted with malice. But same provision gives exceptions to the rule, one of which is a “fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Thus, a journalist is free to report on official acts of public officials even if such report tends to be defamatory, without being presumed to have acted with malice. The only way the journalist can be held liable for libel is if the complainant public official can prove that the former acted with actual malice. In Disini v. Secretary of Justice (G.R. No. 170341, July 5, 2017), the Supreme Court explained that there is actual malice “when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not.”

While the text of the law seems to imply that only straight news without color or commentary are protected from the presumption of malice, jurisprudence has expanded the coverage to include opinionated articles that are slanted or even biased. In the landmark case of Borjal v. Court of Appeals (G.R. No. 126466, January 14, 1999), the Supreme Court held that “the enumeration under Article 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged.” The Court further held:

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.

But what happens when a journalist makes a mistake in a report on a public official? Can he or she be sued for libel? Certainly not. Journalists are given leeway for occasional mistakes as well. In Yambot v. Tuquero (G.R. No. 169895, March 23, 2011), the Supreme Court said, “a newspaper should not be held to account to a point of suppression for honest mistakes, or imperfection in the choice of words.”

With the foregoing safeguards in place, journalists should not easily be shaken by libel threats. In fact, some veteran journalists even boast of “eating libel cases for breakfast.” Being our bridge to information we wouldn’t normally obtain by ourselves, journalists should be able to do their jobs unbridled by those seeking to deny us information.

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