The Danger of Being Liberal with Libel

By Michael Henry Yusingco, LL.M

Libelous disinformation is not exactly the same as disinformation that endangers national security and social cohesion. Libel is categorized as a crime against honor by the Revised Penal Code. Lamentably, we still do not have a law to counter disinformation deployed in malign foreign interference operations or domestic hostile information campaigns. We are labelled as “patient zero” in the disinformation pandemic that is currently afflicting the world, and our legislators have yet to conjure up a cure.

One possible reason for such a delay is our lawmakers still do not appreciate the distinction between democracy-threatening disinformation and defamatory disinformation. The former imperils society at large, while the latter is an offense personal to the subject of the slander. Both are reprehensible, of course, but the nuance between the two plays a big part in corrective legislation. As far as libel is concerned, the long-term aspiration is to decriminalize, whereas the other type of disinformation requires a precise legal definition.

Pertinently, the information ecosystem would also benefit from the decriminalization of libel. One of the most problematic aspects of criminal libel in the Philippines is how it is often weaponized by public officials and powerful figures to intimidate critics. The mere filing of a complaint, regardless of its merit, can drain resources, time, and energy from the accused and deter others from speaking out. Indeed, the profound danger of public officials being too liberal with libel is that it magnifies the chilling effect on free speech.

To bring us back to a rational mindset from this libel hysteria we are seeing now from public officials, let us recall the admonition of the Supreme Court in Yabut vs. Ombudsman:

“A public official, more especially an elected one, should not be onion skinned. Strict personal discipline is expected of an occupant of a public office because a public official is a property of the public. He is looked upon to set the example how public officials should correctly conduct themselves even in the face of extreme provocation. Always he is expected to act and serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain accountable for his conduct to the people.”

And if public officials truly adhere to the constitutional prescriptions of free speech and media freedom, they must take to heart this passage from Borjal vs. Court of Appeals, to wit:

“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.”

Public officials filing libel cases left and right is a canary in the coalmine. It can lead to the unbridled suppression of free speech and the unmitigated oppression of media. We have seen this tragedy happen before. And worse, it can actually further delay the enactment of the law to counter the more fatal kind of disinformation. While it is understandable to expect decorum and civility in political discourse, its absence is better left to civil society to resolve.