Shift burden in libel cases to public officials, say 2 justices

Buena Bernal

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The burden of libel defendants would have been lighter in the SC's cybercrime ruling, but Senior Justices Antonio Carpio and Arturo Brion were outvoted

LIBEL. Supreme Court (SC) Justices Antonio Carpio (right) and Arturo Brion (left) wanted reforms in the penal provisions of libel. Photos courtesy of the SC

MANILA, Philippines – Two justices of the Supreme Court would have wanted to shift the legal burden in libel cases from defendants to public officials.

In their separate opinions on the SC’s ruling on the controversial Cybercrime Prevention Act released Friday, February 22, Senior Justices Antonio Carpio and Arturo Brion wanted to reverse an 8-decade rule that’s followed in libel cases in the Philippines. 

This rule, dubbed “presumed malice rule,” imposes the burden on the defendant, often a journalist. The defendant has to prove that he or she had good intentions and justifiable motive in publicizing the allegedly defamatory material. As it is named, the element of malice is presumed.

Carpio wanted the rule struck down when it comes to libel cases involving public officers or public figures. The rule has been criticized by civil libertarians and members of the media. (READ: Libel in the age of like)

In his separate opinion, Carpio said that the public official who filed the case should be the one to prove that the defendant had knowledge that the allegedly libelous statement was false or that the defendant had “reckless disregard” of whether the statement was false or not.

Carpio said the “presumed malice rule” is “clearly  repugnant to thConstitution,” which protects free speech. He added that the Cybercrime law’s adaptation of this rule is “a gross constitutional anomaly.”

Brion concurred: “It is the duty of this Court to strike down Article 354, insofar as it applies the presumed malice rule to public officers and public figures.”

Actual, not presumed

Carpio pointed out: “…civil or criminal liability will lie only if the complainants prove, through the relevant quantum of proof, that the respondent made the false defamatory imputation with actual malice.”

He cited the “actual malice doctrine” as outlined in the New York Times Co. vs Sullivan case in the United States.

The theoretical basis of the actual malice doctrine is the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” wrote Carpio.

“Since then, the Court has issued a steady stream of decisions applying the New York Times case as the controlling doctrine to dismiss” libel cases, Carpio wrote.

The Philippines’ Revised Penal Code, which criminalizes libel and was enacted in 1930, is much older than the “actual malice doctrine,” which was adapted into federal law in 1964.

Carpio pointed out that “constitutional rights have rapidly expanded since the latter half of the last century, owing to expansive judicial interpretations of broadly worded constitutional guarantees such as the Free Speech Clause.”


Carpio and Brion were outvoted, however, with the Court ruling online libel constitutional when it came to the original author of the libelous content. (READ: SC rules online libel constitutional)

The High Court announced the constitutionality of the cybercrime law, with select provisions struck down, after its February 18 en banc session. (WATCH: Cybercrime law constitutional – SC)

While the other justices focused on online libel, 3 justices looked into the mother law: Article 353 of the Revised Penal Code imposes a criminal liability on libel. 

The youngest justice, Justice Marvic Leonen, dissented and preferred libel in whatever platform to be decriminalized. (READ: Outvoted SC justice in Cybercrime ruling wants libel decriminalized)

Truth as defense

Carpio was also for “the availability of truth as a defense in defamatory imputations against public officials or public figures.”

At present, because of the Revised Penal Code, a libelous statement cannot be justified on the basis that it is true. The exemption to this rule is when the truth is in relation to the complainant’s duty as a public official.

Article 361 of the Code reads: “Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.”

But Carpio, also basing from the “actual malice rule” adapted in the United States, wants libel defendants to be able to use truth as justification in their statements against public officials. 

According to the senior justice, one of the principles of the actual malice rule is that “truth or lack of reckless disregard for the truth or falsity of a defamatory statement is an absolute defense against public officers and public figures.” –

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