What is libel?

I am not a lawyer and, therefore, cannot claim to know all the legal niceties of the Revised Penal Code. I understand, anyway, that any two lawyers will always have at least three legal opinions.

Having said that, however, I must say that I have a journalist’s understanding of libel. The late journalist Giovanni Calvo was never charged with libel, despite having made his reputation repeating choice titbits about showbiz personalities. His formula was simple. He would always say something like “It is not true that X is having an affair with Y.”

As abogadomo.com puts it, “In libel cases, the question is not what the writer of an alleged libel means, but what the words used by him mean.” Calvo’s statement denies that X is having an affair with Y. Calvo may have meant or implied that, indeed, X was having an affair with Y, but the words themselves say the exact opposite. If charged with libel, Calvo would have said, with complete accuracy and probably with a straight face, that he precisely denied that there was such an affair.

Similarly, if I said that Senator Sotto were a dumb ass, he might charge me with libel. I could then reply that I did not say that he was a dumb ass. The sentence “If I said that Senator Sotto were a dumb ass” is in the subjunctive mood, which every grammarian knows is not the indicative mood. It does not really matter whether I think he is a dumb ass or not. What matters is what the words mean, and they do not mean that he is a dumb ass.

Actually, even if I did say that he was a dumb ass, the statement might still not be libelous. Read this marvelous, sarcastic observation by the California Court of Appeals in judging a case where politicians were listed in a list of Top Ten Dumb Asses:

“A statement that the plaintiff is a ‘Dumb Ass,’ even first among ‘Dumb Asses,’ communicates no factual proposition susceptible of proof or refutation. It is true that ‘dumb’ by itself can convey the relatively concrete meaning ‘lacking in intelligence.’ Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. To call a man ‘dumb’ often means no more than to call him a ‘fool.’ One man’s fool may be another’s savant. Indeed, a corollary of Lincoln’s famous aphorism is that every person is a fool some of the time.

“Here defendant did not use ‘dumb’ in isolation, but as part of the idiomatic phrase, ‘dumb ass.’ When applied to a whole human being, the term ‘ass’ is a general expression of contempt essentially devoid of factual content. Adding the word ‘dumb’ merely converts ‘contemptible person’ to ‘contemptible fool.’ Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition.” (masslawblog.com)

Unfortunately for Filipinos, truth is not a defense against libel in our country. Even if I had a video of X having illicit sex with Y, for example, I still could not say that X is having sex with Y. I would have to resort to the Calvo method and say that, “The videotape of X having sex with Y is not a videotape of X having sex with Y.” I could say all sorts of equivalent things, such as the tape was spliced, the people were just body doubles, it was all photoshopped in some sophisticated way, or that it is just a videotape and not the actual thing. As long as I do not say outright that X is having sex with Y, I am not liable for libel.

Even more unfortunately for us Filipinos, however, a libel charge does not have to be justified in order to make journalists tremble in fear.

In chess, just to cite an analogy, nobody actually captures or takes a king (which is the object of the game). One threatens to capture or take the opponent’s king. One can do this explicitly by shouting “Check” or by creating a position where the opponent’s king could be mated (or forced into a position involving certain death) in a few moves. As chess players say, it is the threat and not the execution that is important.

The problem with the cyberlibel provision is that it is a threat. Whether it will actually lead to someone being hauled to jail or fined some unpayable amount is irrelevant.

Once you are charged with libel, your life will change drastically. You will need to spend money you cannot afford to spend on lawyers. Instead of writing in order to earn more income, you will have to attend endless court hearings.

The cyberlibel provision will force you not to tell the truth anymore. It may not be “prior restraint” in the sense that you would still be able to say what you wanted to say, but it is “prior restraint” in the sense that you would be a dumb ass to put yourself in a situation where some dumb ass would charge you with libel even if you did not commit it.