Tulfo v. People (September 16, 2008)
Tulfo v. People (September 16, 2008)
SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, AND PHILIP PICHAY, Petitioners, v. COURT OF APPEALS,
PEOPLE OF THE PHILIPPINES, AND CARLOS SO, Respondents.
DECISION
VELASCO JR., J.:
The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to protect and respect
the fourth estate, the freedom it enjoys must be balanced with responsibility. There is a fine line between freedom of
expression and libel, and it falls on the courts to determine whether or not that line has been crossed.
The Facts
On the complaint of Atty. Carlos "Ding" So of the Bureau of Customs, four (4) separate informations were filed on
September 8, 1999 with the Regional Trial Court in (RTC) Pasay City. These were assigned to Branch 112 and docketed
as Criminal Case Nos. 99-1597 to 99-1600, and charged petitioners Erwin Tulfo, as author/writer, Susan Cambri, as
managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip Pichay, as president of the Carlo
Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in connection with the publication of the articles
in the column "Direct Hit" in the issues of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999.1 The four
informations read as follows:
Criminal Case No. 99-1598
That on or about the 11th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another,
being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of
general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to
discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said
complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 11,
1999, its daily column "DIRECT HIT", quoted hereunder, to wit:
PINAKAMAYAMAN SA CUSTOMS
Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic] pinakamayaman na yata na
government official sa buong bansa sa pangungurakot lamang diyan sa South Harbor.
Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo.
Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at magnanakaw na miyembro nito.
Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan mo.
That on or about the 12th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another,
being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of
general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to
discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said
complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 12,
1999, in daily column "DIRECT HIT", quoted hereunder, to wit:
SI ATTY. SO NG BOC
"LINTEK" din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence Unit sa South Harbor.
Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga importer na ayaw ideklara ang totoong laman
ng mga container para makaiwas sa pagbayad ng malaking customs duties at taxes.
Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito. Siyempre-binibigyan din niya ng salapi yung
ibang mga ahensiya para pumikit na lang at itikom ang kanilang nga [sic] bibig diyan sa mga buwayang taga BOC.
Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga kawatan tulad ni So.
Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robbery-hold-up gang para kumita ng mas
mabilis.
Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang pagiging buwayang naka korbata at
holdaper. Magnanakaw ka So!!"
WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before
the bar of public opinion.3
That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another,
being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of
general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to
discredit or dishonor complainant, ATTY. CARLOS "DING" SO, and with the malicious intent of injuring and exposing said
complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on May 19,
1999, in daily column "DIRECT HIT", quoted hereunder, to wit:
xxxx
"Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din ng lakas itong si Daniel Aquino ng
Presidential Anti-Smuggling Unit na nakatalaga sa South Harbor.
Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng kanilang kargamento."
WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before
the bar of public opinion.4
That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another,
being then the columnist, publisher and managing editor, respectively of "REMATE", a tabloid published daily and of
general circulation in the Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to
discredit or dishonor complainant, ATTY. CARLOS "DING" T. SO, and with the malicious intent of injuring and exposing
said complainant to public hatred, contempt and ridicule, write and publish in the regular issue of said publication on June
25, 1999, its daily column "DIRECT HIT", quoted hereunder, to wit:
xxxx
Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban sa inyong lingkod at ilang opisyales ng
Remate sa Pasay City Court. Nagalit itong tarantadong si Atty. So dahil binanatan ko siya at inexpose ang kagaguhan
niya sa BOC.
Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil hindi kita tatantanan. Buhay ka pa sinusunog na ang iyong
kaluluwa sa impyerno.
WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before
the bar of public opinion.5
On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay were arraigned on December
15, 1999. They all pleaded not guilty to the offenses charged.
At pre-trial, the following were admitted by petitioners: (1) that during the four dates of the publication of the questioned
articles, the complaining witness was not assigned at South Harbor; (2) that the accused and complaining witness did not
know each other during all the time material to the four dates of publication; (3) that Remate is a newspaper/tabloid of
general circulation in the Philippines; (4) the existence and genuineness of the Remate newspaper; (5) the column therein
and its authorship and the alleged libelous statement as well as the editorial post containing the designated positions of
the other accused; and (6) the prosecution's qualified admission that it is the duty of media persons to expose corruption.6
The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James Fortes, Jr., Gladys Fontanilla, and
complainant Atty. So. The prosecution presented documentary evidence as well.
Ablan testified that he had read the four columns written by Tulfo, and that the articles were untrue because he had known
Atty. So since 1992 and had worked with him in the Customs Intelligence and Investigation Service Division of the Bureau
of Customs. He further testified that upon reading the articles written by Tulfo, he concluded that they referred to Atty. So
because the subject articles identified "Atty. Carlos" as "Atty. `Ding' So" of the Customs Intelligence and Investigation
Service Division, Bureau of Customs and there was only one Atty. Carlos "Ding" So of the Bureau of Customs.7
Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a certification in connection with these
cases upon the request of Atty. So.8 This certification stated that as per records available in her office, there was only one
employee by the name of "Atty. Carlos T. So" who was also known as "Atty. Ding So" in the Intelligence Division of the
Customs Intelligence and Investigation Service or in the entire Bureau of Customs.9
Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni Kristo and as a lawyer, and that having
read the articles of Tulfo, he believed that these were untrue, as he knew Atty. Carlos "Ding" So.10
Atty. So testified that he was the private complainant in these consolidated cases. He further testified that he is also
known as Atty. "Ding" So, that he had been connected with the Bureau of Customs since October 1981, and that he was
assigned as Officer-in-Charge (OIC) of the Customs Intelligence and Investigation Service Division at the Manila
International Container Port since December 27, 1999. He executed two complaint-affidavits, one dated June 4, 1999 and
the other dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14 cases of libel
against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that petitioner Tulfo's act of imputing upon him
criminality, assailing his honesty and integrity, caused him dishonor, discredit, and contempt among his co-members in
the legal profession, co-officers of the Armed Forces of the Philippines, co-members and peers in the Iglesia ni Kristo, his
co-officers and employees and superior officers in the Bureau of Customs, and among ordinary persons who had read
said articles. He said it also caused him and his family sleepless nights, mental anguish, wounded feelings, intrigues, and
embarrassment. He further testified that he included in his complaint for libel the officers of Remate such as the publisher,
managing editor, city editor, and national editor because under Article 360 of the Revised Penal Code (RPC), they are
equally responsible and liable to the same extent as if they were the author of the articles. He also testified that "Ding" is
his nickname and that he is the only person in the entire Bureau of Customs who goes by the name of Atty. Carlos T. So
or Atty. Carlos "Ding" So.11
In his defense, petitioner Tulfo testified that he did not write the subject articles with malice, that he neither knew Atty. So
nor met him before the publication of the articles. He testified that his criticism of a certain Atty. So of the South Harbor
was not directed against the complainant, but against a person by the name of Atty. "Ding" So at the South Harbor. Tulfo
claimed that it was the practice of certain people to use other people's names to advance their corrupt practices. He also
claimed that his articles had neither discredited nor dishonored the complainant because as per his source in the Bureau
of Customs, Atty. So had been promoted. He further testified that he did not do any research on Atty. So before the
subject articles, because as a columnist, he had to rely on his source, and that he had several sources in the Bureau of
Customs, particularly in the South Harbor.12
Petitioner Salao testified that he came to know Atty. Carlos "Ding" So when the latter filed a case against them. He
testified that he is an employee of Carlo Publishing House, Inc.; that he was designated as the national editor of the
newspaper Remate since December 1999; that the duties of the position are to edit, evaluate, encode, and supervise
layout of the news from the provinces; and that Tulfo was under the supervision of Rey Briones, Vice President for
Editorial and Head of the Editorial Division. Salao further testified that he had no participation in the subject articles of
Tulfo, nor had he anything to do with the latter's column.13
Petitioner Cambri, managing editor of Remate, testified that she classifies the news articles written by the reporters, and
that in the Editorial Division, the officers are herself; Briones, her supervisor; Lydia Bueno, as news and city editor; and
Salao as national editor. She testified that petitioner Barlizo is her subordinate, whose duties and responsibilities are the
typesetting, editing, and layout of the page assigned to her, the Metro page. She further testified that she had no
participation in the writing, editing, or publication of the column of Tulfo because the column was not edited. She claimed
that none among her co-accused from the Remate newspaper edited the columns of Tulfo, that the publication and editing
of the subject articles were the responsibility of Tulfo, and that he was given blanket authority to write what he wanted to
write. She also testified that the page wherein Tulfo's column appeared was supervised by Bueno as news editor.14
Petitioner Pichay testified that he had been the president of Carlo Publishing House, Inc. since December 1998. He
testified that the company practice was to have the columnists report directly to the vice-president of editorials, that the
columnists were given autonomy on their columns, and that the vice-president for editorials is the one who would decide
what articles are to be published and what are not. He further testified that Tulfo was already a regular contributor.15
In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of Libel. The dispositive portion
reads as follows:
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO and
PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the
Revised Penal Code, and penalized by prision correccional in its minimum and medium periods, or a fine ranging from
P200.00 Pesos to P6,000.00 Pesos or both, under Article 355 of the same Code.
Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the accused to suffer imprisonment of
SIX (6) MONTHS of arresto mayor, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as
maximum, for EACH count with accessory penalties provided by law.
Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay wrote and
published the four (4) defamatory articles with reckless disregard, being, in the mind of the Court, of whether it was false
or not, the said articles libelous per se, they are hereby ordered to pay, jointly and severally, the sum of EIGHT
HUNDRED THOUSAND (P800,000.00) PESOS, as actual damages, the sum of ONE MILLION PESOS (P1,000,000.00),
as moral damages, and an additional amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00), by way of
exemplary damages, all with subsidiary imprisonment, in case of insolvency, and to pay the costs.
SO ORDERED.16
The Ruling of the Court of Appeals
Before the Court of Appeals (CA), Tulfo assigned the following errors:
1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY OF THE APPELLANT
THAT HE DID NOT CRITICIZE THE PRIVATE COMPLAINANT WORKING AT THE NAIA. HE
CRITICIZED ANOTHER PERSON WORKING AT THE SOUTH HARBOR. HENCE, THE ELEMENT OF
IDENTITY IS LACKING.
2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL ELEMENT OF
DISCREDIT OR DISHONOR, AS DEFINED BY JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY. CARLOS "DING" SO.17
The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay liable for
the defamations contained in the questioned articles despite the fact that the trial court did not have any finding as to their
participation in the writing, editing and/or publication of the questioned articles.
The trial court seriously erred in concluding that libel was committed by all of the accused on the basis of its finding that
the elements of libel have been satisfactorily established by evidence on record.
The trial court seriously erred in considering complainant to be the one referred to by Erwin Tulfo in his articles in
question.18
In a Decision19 dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and affirmed the judgment of the
trial court. A motion for reconsideration dated June 30, 2003 was filed by Tulfo, while the rest of his co-accused filed a
motion for reconsideration dated July 2, 2003. In a Resolution dated December 11, 2003, both motions were denied for
lack of merit.20
Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the CA in CA-G.R. CR No.
25318 which affirmed the decision of the RTC. Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar petition
docketed as G.R. No. 161176, seeking the nullification of the same CA decision.
In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise from the same set of facts,
involve the same parties, assail the same decision of the CA, and seek identical reliefs.21
Assignment of Errors
Assuming that the Prosecution presented credible and relevant evidence, the Honorable CA erred in not declaring the
assailed articles as privileged; the CA erred in concluding that malice in law exists by the court's having incorrectly
reasoned out that malice was presumed in the instant case.
II
Even assuming arguendo that the articles complained of are not privileged, the lower court, nonetheless, committed gross
error as defined by the provisions of Section 6 of Rule 45 by its misappreciation of the evidence presented on matters
substantial and material to the guilt or innocence of the petitioner.22
Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors, as follows:
A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The Revised Penal Code By Holding Cambri,
Salao And Barlizo Liable For The Defamatory Articles In The May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply
Because They Were Managing Editor, National Editor And City Editor Respectively Of Remate And By Holding Pichay
Also Liable For Libel Merely Because He Was The President Of Carlo Publishing House, Inc. Without Taking Into Account
The Unrebutted Evidence That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles
In Question.
B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly Disregarding The Unrebutted Evidence
That Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question.
C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The Person Referred To In The
Published Articles Was Private Complainant Atty. Carlos So.23
Our Ruling
In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of Appeals.24 In essence, he
argues that the subject articles fall under "qualifiedly privileged communication" under Borjal and that the presumption of
malice in Art. 354 of the RPC does not apply. He argues that it is the burden of the prosecution to prove malice in fact.
This case must be distinguished from Borjal on several points, the first being that Borjal stemmed from a civil action for
damages based on libel, and was not a criminal case. Second, the ruling in Borjal/i> was that there was no sufficient
identification of the complainant, which shall be differentiated from the present case in discussing the second assignment
of error of Tulfo. Third, the subject in Borjal was a private citizen, whereas in the present case, the subject is a public
official. Finally, it was held in Borjal that the articles written by Art Borjal were "fair commentaries on matters of public
interest"25 It shall be discussed and has yet to be determined whether or not the articles fall under the category of "fair
commentaries."
In passing, it must be noted that the defense of Tulfo's articles being qualifiedly privileged communication is raised for the
first time in the present petition, and this particular issue was never brought before either the RTC or the CA. Thus,
neither the RTC nor the CA had a chance to properly consider and evaluate this defense. Tulfo now draws parallels
between his case and that of Art Borjal, and argues that the prosecution should have proved malice in fact, and it was
error on the part of the trial and appellate courts to use the presumption of malice in law in Art. 354 of the RPC. This lays
an unusual burden on the part of the prosecution, the RTC, and the CA to refute a defense that Tulfo had never raised
before them. Whether or not the subject articles are privileged communications must first be established by the defense,
which it failed to do at the level of the RTC and the CA. Even so, it shall be dealt with now, considering that an appeal in a
criminal proceeding throws the whole case open for review.
There is no question of the status of Atty. So as a public official, who served as the OIC of the Bureau of Customs
Intelligence and Investigation Service at the Ninoy Aquino International Airport (NAIA) at the time of the printing of the
allegedly libelous articles. Likewise, it cannot be refuted that the goings-on at the Bureau of Customs, a government
agency, are matters of public interest. It is now a matter of establishing whether the articles of Tulfo are protected as
qualified privileged communication or are defamatory and written with malice, for which he would be liable.
The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on
public figures and matters of public interest. Even in cases wherein the freedom of the press was given greater weight
over the rights of individuals, the Court, however, has stressed that such freedom is not absolute and unbounded. The
exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal burden of responsible
exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights
of others.
The Journalist's Code of Ethics adopted by the National Union of Journalists of the Philippines shows that the press
recognizes that it has standards to follow in the exercise of press freedom; that this freedom carries duties and
responsibilities. Art. I of said code states that journalists "recognize the duty to air the other side and the duty to correct
substantive errors promptly." Art. VIII states that journalists "shall presume persons accused of crime of being innocent
until proven otherwise."
In the present case, it cannot be said that Tulfo followed the Journalist's Code of Ethics and exercised his journalistic
freedom responsibly.
In his series of articles, he targeted one Atty. "Ding" So of the Bureau of Customs as being involved in criminal activities,
and was using his public position for personal gain. He went even further than that, and called Atty. So an embarrassment
to his religion, saying "ikaw na yata ang pinakagago at magnanakaw sa miyembro nito."> 26 He accused Atty. So of
stealing from the government with his alleged corrupt activities. 27 And when Atty. So filed a libel suit against him, Tulfo
wrote another article, challenging Atty. So, saying, "Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-
expose ang kagaguhan niya sa [Bureau of Customs]"28
In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the
publication of the subject articles. He also admitted that he did not conduct a more in-depth research of his allegations
before he published them, and relied only on his source at the Bureau of Customs.
In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for personal gain, and
even stated that he had been the victim of such a practice. He argued then that it may have been someone else using the
name of Atty. So for corrupt practices at the South Harbor, and this person was the target of his articles. This argument
weakens his case further, for even with the knowledge that he may be in error, even knowing of the possibility that
someone else may have used Atty. So's name, as Tulfo surmised, he made no effort to verify the information given by his
source or even to ascertain the identity of the person he was accusing.
The trial court found Tulfo's accusations against Atty. So to be false, but Tulfo argues that the falsity of contents of articles
does not affect their privileged character. It may be that the falsity of the articles does not prove malice. Neither
did Borjal give journalists carte blanche with regard to their publications. It cannot be said that a false article accusing a
public figure would always be covered by the mantle of qualified privileged communication. The portion of Borjal cited by
Tulfo must be scrutinized further:
Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with
good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes
or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment.
Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our
democracy. In Bulletin Publishing Corp. v. Noel we held -
A newspaper especially one national in reach and coverage, should be free to report on events and developments in
which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal
or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility
prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing
liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for
the same reason that the New York Times doctrinerequires that liability for defamation of a public official or public figure
may not be imposed in the absence of proof of "actual malice" on the part of the person making the libelous
statement.29 (Emphasis supplied.)
Reading more deeply into the case, the exercise of press freedom must be done "consistent with good faith and
reasonable care." This was clearly abandoned by Tulfo when he wrote the subject articles. This is no case of mere error
or honest mistake, but a case of a journalist abdicating his responsibility to verify his story and instead misinforming the
public. Journalists may be allowed an adequate margin of error in the exercise of their profession, but this margin does
not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor
does this margin cover total abandonment of responsibility.
Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of
the RPC, but this expansion does not cover Tulfo. The addition to the instances of qualified privileged communications is
reproduced as follows:
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. 30 (Emphasis supplied.)
The expansion speaks of "fair commentaries on matters of public interest." While Borjal places fair commentaries within
the scope of qualified privileged communication, the mere fact that the subject of the article is a public figure or a matter of
public interest does not automatically exclude the author from liability. Borjal allows that for a discreditable imputation to a
public official to be actionable, it must be a false allegation of fact or a comment based on a false supposition. As
previously mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not exert
effort to verify the information before publishing his articles.
Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs and relied only on this
source for his columns, but did no further research on his story. The records of the case are bereft of any showing that
Atty. So was indeed the villain Tulfo pictured him to be. Tulfo's articles related no specific details or acts committed to
prove Atty. So was indeed a corrupt public official. These columns were unsubstantiated attacks on Atty. So, and cannot
be countenanced as being privileged simply because the target was a public official. Although wider latitude is given to
defamatory utterances against public officials in connection with or relevant to their performance of official duties, or
against public officials in relation to matters of public interest involving them, such defamatory utterances do not
automatically fall within the ambit of constitutionally protected speech. 31 Journalists still bear the burden of writing
responsibly when practicing their profession, even when writing about public figures or matters of public interest. As held
in In Re: Emil P. Jurado:
Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a
newsman may ecape liability who publishes derogatory or defamatory allegations against a person or entity, but
recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit
proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness
all the injunctions of the Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional
honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would
compromise his sources and demanding acceptance of his word for the reliability of those sources. 32
The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing his one unnamed
source. It is not demanded of him that he name his source. The confidentiality of sources and their importance to
journalists are accepted and respected. What cannot be accepted are journalists making no efforts to verify the
information given by a source, and using that unverified information to throw wild accusations and besmirch the name of
possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate
their stories before publication, and be able to back up their stories with proof. The rumors and gossips spread by
unnamed sources are not truth. Journalists are not storytellers or novelists who may just spin tales out of fevered
imaginings, and pass them off as reality. There must be some foundation to their reports; these reports must be warranted
by facts.
Jurado also established that the journalist should exercise some degree of care even when writing about public officials.
The case stated:
Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other
public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the
point of adjustment or accommodation between these two legitimate interests is precisely found in the norm which
requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or
other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit
the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona
fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment
between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of
Ethics adopted by the journalism profession in the Philippines. 33
Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified privileged communication under
the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice "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 any statement, report, or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions." This particular provision has several elements which must be present in
order for the report to be exempt from the presumption of malice. The provision can be dissected as follows:
In order that the publication of a report of an official proceeding may be considered privileged, the following conditions
must exist:
Breaking down the provision further, looking at the terms "fair" and "true," Tulfo's articles do not meet the standard. "Fair"
is defined as "having the qualities of impartiality and honesty"35 "True" is defined as "conformable to fact; correct; exact;
actual; genuine; honest"36 Tulfo failed to satisfy these requirements, as he did not do research before making his
allegations, and it has been shown that these allegations were baseless. The articles are not "fair and true reports," but
merely wild accusations.
Even assuming arguendo that the subject articles are covered by the shield of qualified privileged communication, this
would still not protect Tulfo.
In claiming that his articles were covered by qualified privileged communication, Tulfo argues that the presumption of
malice in law under Art. 354 of the RPC is no longer present, placing upon the prosecution the burden of proving malice in
fact. He then argues that for him to be liable, there should have been evidence that he was motivated by ill will or spite in
writing the subject articles.
The test to be followed is that laid down in New York Times Co. v. Sullivan,37 and reiterated in Flor v. People, which
should be to determine whether the defamatory statement was made with actual malice, that is, with knowledge that it
was false or with reckless disregard of whether it was false or not. 38
The trial court found that Tulfo had in fact written and published the subject articles with reckless disregard of whether the
same were false or not, as proven by the prosecution. There was the finding that Tulfo failed to verify the information on
which he based his writings, and that the defense presented no evidence to show that the accusations against Atty. So
were true. Tulfo cannot argue that because he did not know the subject, Atty. So, personally, there was no malice
attendant in his articles. The test laid down is the "reckless disregard" test, and Tulfo has failed to meet that test.
The fact that Tulfo published another article lambasting respondent Atty. So can be considered as further evidence of
malice, as held in U.S. vs. Montalvo,39 wherein publication after the commencement of an action was taken as further
evidence of a malicious design to injure the victim. Tulfo did not relent nor did he pause to consider his actions, but went
on to continue defaming respondent Atty. So. This is a clear indication of his intent to malign Atty. So, no matter the cost,
and is proof of malice.
Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court misappreciated the
evidence presented as to the identity of the complainant: that Tulfo wrote about Atty. "Ding" So, an official of the Bureau
of Customs who worked at the South Harbor, whereas the complainant was Atty. Carlos So who worked at the NAIA. He
claims that there has arisen a cloud of doubt as to the identity of the real party referred to in the articles.
The prosecution was able to present the testimonies of two other witnesses who identified Atty. So from Tulfo's articles.
There is the certification that there is only one Atty. So in the Bureau of Customs. And most damning to Tulfo's case is the
last column he wrote on the matter, referring to the libel suit against him by Atty. So of the Bureau of Customs. In this
article, Tulfo launched further attacks against Atty. So, stating that the libel case was due to the exposés Tulfo had written
on the corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an admission on the part of Tulfo
that Atty. So was in fact the target of his attacks. He cannot now point to a putative "Atty. Ding So" at South Harbor, or
someone else using the name of Atty. So as the real subject of his attacks, when he did not investigate the existence or
non-existence of an Atty. So at South Harbor, nor investigate the alleged corrupt acts of Atty. So of the Bureau of
Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So referred to in his articles, when all the
evidence points to one Atty. So, the complainant in the present case.
Having discussed the issue of qualified privileged communication and the matter of the identity of the person referred to in
the subject articles, there remains the petition of the editors and president of Remate, the paper on which the subject
articles appeared.
In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing or writing of
the subject articles, and are thus not liable.
The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:
Art. 360. Persons responsible.--Any person who shall publish, exhibit, or cause the publication or exhibition of any
defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.
The claim that they had no participation does not shield them from liability. The provision in the RPC does not provide
absence of participation as a defense, but rather plainly and specifically states the responsibility of those involved in
publishing newspapers and other periodicals. It is not a matter of whether or not they conspired in preparing and
publishing the subject articles, because the law simply so states that they are liable as they were the author.
Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their paper by simply saying
they had no participation in the preparation of the same. They cannot say that Tulfo was all alone in the publication
of Remate, on which the subject articles appeared, when they themselves clearly hold positions of authority in the
newspaper, or in the case of Pichay, as the president in the publishing company.
As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a journalist, the other
petitioners cannot simply say that they are not liable because they did not fulfill their responsibilities as editors and
publishers. An editor or manager of a newspaper, who has active charge and control of its management, conduct, and
policy, generally is held to be equally liable with the owner for the publication therein of a libelous article. 40 On the theory
that it is the duty of the editor or manager to know and control the contents of the paper, 41 it is held that said person
cannot evade responsibility by abandoning the duties to employees, 42 so that it is immaterial whether or not the editor or
manager knew the contents of the publication.43 In Fermin v. People of the Philippines,44 the Court held that the publisher
could not escape liability by claiming lack of participation in the preparation and publication of a libelous article. The Court
cited U.S. v. Ocampo, stating the rationale for holding the persons enumerated in Art. 360 of the RPC criminally liable,
and it is worth reiterating:
According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous
matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With
regard to a publication in which a libel is printed, not only is the publisher but also all other persons who in any way
participate in or have any connection with its publication are liable as publishers.
xxxx
In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of
the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783):
"The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility
solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in
a newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its
publication.
"The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his
paper; and it should be no defense that the publication was made without his knowledge or consent, x x x.
"One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or
employees whom he selects and controls may be said to cause to be published what actually appears, and should be
held responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility
for the acts of an agent or servant in the course of his employment necessarily implies some degree of guilt or
delinquency on the part of the publisher; x x x.
"We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or
consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager."
In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in
the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have
published the libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not
aware of its publication until it was pointed out to him and that an apology and retraction were afterwards published in the
same paper, gave him no ground for exception. In this same case, Mr. Justice Colt, speaking for the court, said:
"It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to
use reasonable caution in the conduct of his business that no libels be published." (Wharton's Criminal Law, secs. 1627,
1649; 1 Bishop's Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass.,
441.)
The above doctrine is also the doctrine established by the English courts. In the case of Rex vs. Walter (3 Esp., 21) Lord
Kenyon said that he was "clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as
civilly for the acts of his servants or agents for misconduct in the management of the paper."
This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.
"An information for libel will lie against the publisher of a papers, although he did not know of its being put into the paper
and stopped the sale as soon as he discovered it."
In the case of People vs. Clay (86 Ill., 147) the court held that -
"A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and
criminally, and his liability is shared by the agent and all others who aid in publishing it" 45
Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so too must Cambri,
Salao, Barlizo, and Pichay.
Though we find petitioners guilty of the crime charged, the punishment must still be tempered with justice. Petitioners are
to be punished for libel for the first time. They did not apply for probation to avoid service of sentence possibly in the belief
that they have not committed any crime. In Buatis, Jr. v. People,46 the Court, in a criminal case for libel, removed the
penalty of imprisonment and instead imposed a fine as penalty. In Sazon v. Court of Appeals,47 the accused was merely
fined in lieu of the original penalty of imprisonment and fine. Freedom of expression as well as freedom of the press may
not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of a free press
balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with
subsidiary imprisonment in case of insolvency, should suffice. 48 Lastly, the responsibilities of the members of the press
notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into consideration.
The award of damages by the lower court must be modified. Art. 2199 of the Civil Code provides, "Except as provided by
law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to as actual or compensatory damages." There was no showing of any
pecuniary loss suffered by the complainant Atty. So. Without proof of actual loss that can be measured, the award of
actual damages cannot stand.
In Del Mundo v. Court of Appeals, it was held, as regards actual and moral damages:
A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly proved.
Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable
degree of certainty. We have emphasized that these damages cannot be presumed, and courts, in making an award must
point out specific facts which could afford a basis for measuring whatever compensatory or actual damages are borne.
Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such as physical
suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These
damages must be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate
the claimant for the injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order
that moral damages may be awarded, the amount of indemnity being left to the sound discretion of the court, it is
imperative, nevertheless, that (1) injury must have been suffered by the claimant, and (2) such injury must have sprung
from any of the cases expressed in Article 2219 and Article 2220 of the Civil Code. A causal relation, in fine, must exist
between the act or omission referred to in the Code which underlies, or gives rise to, the case or proceeding on the one
hand, and the resulting injury, on the other hand; i.e. the first must be the proximate cause and the latter the direct
consequence thereof.49
It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of moral damages.
Justification for the award of moral damages is found in Art. 2219(7) of the Civil Code, which states that moral damages
may be recovered in cases of libel, slander, or any other form of defamation. As the cases involved are criminal cases of
libel, they fall squarely within the ambit of Art. 2219(7).
Moral damages can be awarded even in the absence of actual or compensatory damages. The fact that no actual or
compensatory damage was proven before the trial court does not adversely affect the offended party's right to recover
moral damages.50
And while on the subject of moral damages, it may not be amiss to state at this juncture that Tulfo's libelous articles are
abhorrent not only because of its vilifying and demeaning effect on Atty. So himself, but also because of their impact on
members of his family, especially on the children and possibly even the children's children.
The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical Filipino family, such that the
whole family usually suffers or rejoices at the misfortune or good fortune, as the case may be, of any of its member.
Accordingly, any attempt to dishonor or besmirch the name and reputation of the head of the family, as here, invariably
puts the other members in a state of disrepute, distress, or anxiety. This reality adds an imperative dimension to the
award of moral damages to the defamed party.
The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the Civil Code, "In criminal offenses,
exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party."
No aggravating circumstances accompanied the commission of the libelous acts; thus, no exemplary damages can be
awarded.
Conclusion
The press wields enormous power. Through its widespread reach and the information it imparts, it can mold and shape
thoughts and opinions of the people. It can turn the tide of public opinion for or against someone, it can build up heroes or
create villains.
It is in the interest of society to have a free press, to have liberal discussion and dissemination of ideas, and to encourage
people to engage in healthy debate. It is through this that society can progress and develop.
Those who would publish under the aegis of freedom of the press must also acknowledge the corollary duty to publish
responsibly. To show that they have exercised their freedom responsibly, they must go beyond merely relying on
unfounded rumors or shadowy anonymous sources. There must be further investigation conducted, some shred of proof
found to support allegations of misconduct or even criminal activity. It is in fact too easy for journalists to destroy the
reputation and honor of public officials, if they are not required to make the slightest effort to verify their accusations.
Journalists are supposed to be reporters of facts, not fiction, and must be able to back up their stories with solid research.
The power of the press and the corresponding duty to exercise that power judiciously cannot be understated.
But even with the need for a free press, the necessity that it be free does not mean that it be totally unfettered. It is still
acknowledged that the freedom can be abused, and for the abuse of the freedom, there must be a corresponding
sanction. It falls on the press to wield such enormous power responsibly. It may be a cliché that the pen is mightier than
the sword, but in this particular case, the lesson to be learned is that such a mighty weapon should not be wielded
recklessly or thoughtlessly, but always guided by conscience and careful thought.
A robust and independently free press is doubtless one of the most effective checks on government power and abuses.
Hence, it behooves government functionaries to respect the value of openness and refrain from concealing from media
corruption and other anomalous practices occurring within their backyard. On the other hand, public officials also deserve
respect and protection against false innuendoes and unfounded accusation of official wrongdoing from an abusive press.
As it were, the law and jurisprudence on libel heavily tilt in favor of press freedom. The common but most unkind
perception is that government institutions and their officers and employees are fair game to official and personal attacks
and even ridicule. And the practice on the ground is just as disconcerting. Reports and accusation of official misconduct
often times merit front page or primetime treatment, while defenses set up, retraction issued, or acquittal rendered get no
more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm of clear conscience is sometimes not
enough.
Perhaps lost in the traditional press freedom versus government impasse is the fact that a maliciously false imputation of
corruption and dishonesty against a public official, as here, leaves a stigmatizing mark not only on the person but also the
office to which he belongs. In the ultimate analysis, public service also unduly suffers.
WHEREFORE, in view of the foregoing, the petitions in G.R. NOS. 161032 and 161176 are DISMISSED. The CA
Decision dated June 17, 2003 in CA-G.R. CR No. 25318 is hereby AFFIRMED with the MODIFICATIONS that in lieu of
imprisonment, the penalty to be imposed upon petitioners shall be a fine of six thousand pesos (PhP 6,000) for each
count of libel, with subsidiary imprisonment in case of insolvency, while the award of actual damages and exemplary
damages is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112 in Pasay City in Criminal Case
Nos. 99-1597 to 99-1600 is modified to read as follows:
WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and
PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the
Revised Penal Code, and sentences EACH of the accused to pay a fine of SIX THOUSAND PESOS (PhP 6,000) per
count of libel with subsidiary imprisonment, in case of insolvency.
Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo, and Philip Pichay wrote and
published the four (4) defamatory articles with reckless disregard whether it was false or not, the said articles being
libelous per se, they are hereby ordered to pay complainant Atty. Carlos T. So, jointly and severally, the sum of
ONE MILLION PESOS (PhP 1,000,000) as moral damages. The claim of actual and exemplary damages is denied
for lack of merit.
Costs against petitioners.
SO ORDERED.