BORJAL VS CA (1999)

There is a very substantial discussion here on the context of privilege communication. Mao ni tong example na what the person felt himself to be
maligned was not directly identified by the article but he felt that it was alluding to him.

FACTS: We have here Borjal and Soliven they were incorporators of this Philippines Today publisher of PhilStar Daily, a daily newspaper and there
was an article there written by Borjal where he claimed nga there is this organizer daw in a conference na corrupt, he was taking the money to
hold this event. Where did the idea come from? According to the person purportedly maligned here si Wenceslao there was a meeting an
organization of an event the First National Conference on Land Transportation he was the one who sought to organize that so he had sponsorship
of several individuals and because he organize that nigawas to nga article sometime within the dates when he started organizing the event
purporting that there were allege anomalous activities of a certain organizer of a conference. So blind item without naming or identifying him.
Neither did the article refer to this event the First National Conference on Land Transportation as the event referred to. So because of this he felt
that he is the one na gipandunggan or the one that was referred to in that article who corrupt and anomalous. So he filed a suit for libel against
Borjal and Soliven. The criminal cases however were dismissed so he filed a civil case against them for libel. This is the one that flourished he was
able to get a sizeable amount of money because he prevailed in that suit. That is why Borjal et al went to the Supreme Court and challenged the
decision of the trial court that found them civilly guilty and liable for that purportedly libelous article.

ISSUE: Should the case here prosper, the damages suit against them?

RULING: The court said that NO. It should have been dismissed. Why? There are many reasons here.

(1) In order to maintain a libel suit it is essential that the victim should be identifiable. It is one of the elements of the offense. Although
it is not necessary that he should be named. Dapat the article itself must refer to a specific individual. It is also not sufficient that the
offended party recognize itself as the person attacked or detained but it must be shown that at least a third person could identify him
as the object of the libelous publication. Dili pwede na ikaw lang kay feel nimo. Dapat your friends or your peers or somone elese
would say na “hala murag ikaw gud ni”. Here that element of identifiability was not present that is why the civil liability on libel is
anchored on the criminal liability. So anyway naay missing element on the offense then it should not have prospered. The person
alluded to be in the article is not Wenceslao actually. They do not identify any particular person, the principal organizers were not
even specified. There was nothing in the article that indicated that Wenceslao was the one referred to. In fact Wenceslao himself even
admitted that this event had several organizers, so dili lang sya it could have been other people.

So when is the element of identification grossly inadequate?

It is when the alleged offended party himself is unsure that he was the subject of the verbal attack.

Now going to our topic the author as well as the publisher of this article claimed that the write up is a form of a privilege communication under
Article 354 of the Revised Penal Code.

And what happens if that article is deemed as a privilege communication under this article 354?

It removes the presumption of malice, so karun since nawala na ang presumption of malice the state has to prove that it was publish with malice.
It removes the element of malice, privilege communication according to them. Now, the counter argument here of Wenceslao here is that

Article 354 only provides for two instances of privilege communication;

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. 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 confidential nature xx

According to Wencelao your article does not fall to under any of these privilege communication. The court said that Wenceslao is wrong.

There are two types of privilege communication

1. Absolutely privilege communication—this communications are not actionable even if the author acted in bad faith. (for
example the protection granted to our legislators in their parliamentary immunity. Article VI sec. 11, which exempts the member
of Congress for any liability in a speech or debate in the Congress or any committee thereof. They cannot be held criminally liable
outside, if they made the utterances with the requirements present under the Constitution. They cannot be held criminally, civilly
or administratively liable but they can be disciplined by the body, so absolutely privilege communication.
2. Qualifiedly privilege communication—are communications that contain defamatory imputations, these are not actionable
unless they are found to have been made without good intention or justifiable motive. (mahulog dire sa Article 354)

Now the court said that the enumeration in article 354 so far as to the privilege communication is not exclusive. Included in the listing of qualifiedly
privilege communication is this concept or this doctrine of fair and true report, fair commentaries on matters of public interests. That is another
category, another form of privilege communication. So 354 duha plus kaning si fair commentaries and matters of public interests. This is a form
of qualifiedly privilege communication to prove that it fell under these exception then mawala ang element of malice therefore the the state has
to proved that the communication was malicious.

Now how do you make your article fall under this privilege?
 First of all what is the basis of this privilege? Where did this come from?

Under the Constitution, so we have provisions protecting the right to free speech and in early jurisprudence, publications which are privilege for
reasons of public policy are protected by the Constitutional guaranty of the freedom of speech so this privilege is anchored on that right. So this
right can be abolished by the mere failure of Congress to include that form of privilege speech in the Revised Penal Code because it has long been
recognized before pa. So, this concept of privilege communication is implicit in the freedom of the press. It is important for the press to report so
that they can be more vigilant rather they can be bolder in whatever they do in journalism. Dili sila mahadlok because whatever they write could
fall under this fair commentaries and matters of public interest which is a qualifiedly privilege communication.

What is it?

What is this doctrine fair comment?

When does an article become fair commentary on matters of public concern?

It means that in every quiet, in every general, every discreditable imputation of public dealing is considered false because every man is presumed
innocent until his guilt is judicially proved and every false imputation is deemed malicious. Nevertheless when that discreditable imputation is
directed against a public person in his public capacity it is not necessarily actionable, so dira sya mahulog. So if your writeup or speech is directed
against a private person even if it contains discreditable imputations writeup against a public person in his public capacity, as a rule it is not
necessarily be actionable because it may be considered as privilege communication under this category.

When can that be actionable?

If it based on a false allegation of fact or in a false position. Makita nimo in that instance na dili nma sya privilege because it is already malicious.

So how do you prove that your article falls in that privilege communication?

You have to prove that you are talking about a public person and that the defamatory or discreditable imputation talks about him in his public
capacity.

So who is a public figure?

Mao na ang requirement to prove that this person you are talking about.

Is Wencslao here a public figure?

YES

He is considered as a celebrity or someone who achieved some degree of reputation. There is a discussion here as to who a celebrity is. Enrile
here is a celebrity not necessary na artist aka.

Is it restricted to celebrities or public figures?

NO

In fact it’s not, even if the person is not a public figure as long as he is involved in a public issue, he maybe considered the subject of a fair
commentary. So you prove that you did this write up against this person in his public capacity is a public person and that you did not do so
maliciously, so the presumption of malice is removed if your communication is shown to be privilege. So if you are able to prove that it is a fair
commentary then mawala tong presumption of malice and therefore you cannot be held liable for libel unless the state proves that your article
was malicious.

Here the court said that the article:

(1) It did not allude to person. So dismissable sya

(2) It was a form of privilege communication under the doctrine of fair commentary.

And the presumption of malice is removed. So they were absolved of the civil charges in relation to libel, gitanggal ang damages.