MANILA, Philippines - The Supreme Court?s advice to judges to impose fines, not imprisonment, on those convicted of libel is welcome but I think Congress should look at the libel law very closely and amend or change it to make it up-to-date. I think our libel law is not only outdated, having been copied from the libel law of colonial America, but also violates the constitutional guarantee that ?every accused is presumed innocent until proven guilty.? Let me explain.

In early America, there appeared pamphleteers who published scurrilous pamphlets?not unlike the present ?white papers? against persons issued by anonymous sources?attacking the enemies of the authors. Those pamphlets usually resulted in the aggrieved parties at that time challenging the authors to duels. The duels were a ?breach of the peace? to prevent which the founding fathers passed the libel law so that those libeled can sue in court instead of challenging their tormentors to duels. This is the libel law that we inherited.

As I see it, what was good for early America is not necessarily good for modern-day Philippines. That law was crafted against authors with malicious intent?to hurt their victims? while the present newspapers, against which the present libel law is implemented, are there in the interest of the public. No reputable newspaper will knowingly and maliciously malign anybody without justification. That justification is the public interest, the right of the people to know. This right is enshrined in the Constitution to keep public officials well-behaved if their employers, the people, know what they are doing. This duty of keeping the public informed is being done by the press; and that is why the guarantee of press freedom was born.

Libel has several basic elements: there must be an imputation of a crime or a defect against a person, living or dead, who must be identifiable; it must be published and, most important of all, it must be malicious, meaning there must be an ill motive behind the publication. Absent any one of these elements, there is no libel.

But here is the catch: The law recognizes two types of malice?malice in fact and malice in law, also called presumed malice. Malice in fact has to be proven by the complainant; he must prove that the accused bore ill will against him. Malice in law, however, does not have to be proven. The law presumes any defamatory publication as malicious, the logic being that when it was written and published, the authors meant it to hurt the victim.

That may have been true during the days of the pamphleteers but not today in the era of modern-day newspapers. As I said, no newspaper today will knowingly publish a defamatory story without a justifiable reason?the public interest. Newspapers perform a duty in modern democracy: inform the public on the conduct of government that spends the taxes they pay.

Unfortunately, that ?presumption of malice? is still present in our libel law. (Is it an oversight or plain laziness?) In other words, a person accused of libel is presumed guilty even before trial, contrary to the constitutional guarantee of presumption of innocence. Here?s why:

When a complaint for libel is filed, present of course is the defamatory story, identification of the person defamed, and publication. The only thing to be proven is malice in fact, or actual malice. But because of ?malice in law,? there already is a presumption of malice which the accused must overcome with his defenses, such as privilege (it is based on public records), the complainant is a public official or figure and therefore his life is an open book, or the motive for publication is the public good.

In other words, when a libel complaint is filed in court, the complainant technically doesn?t have to prove anything because the elements of libel are already present: defamatory statement, identification, publication and the presumption of malice. Therefore, the accused is already presumed guilty even before trial when the Constitution says he should be presumed innocent until proven guilty.

In other words, the accused is presumed guilty until he proves himself innocent, not the other way around.

And even after the accused successfully presents his defenses, the complainant can still present evidence to prove malice in fact, or actual malice on the part of the authors, meaning the authors bore ill will against him.

What I am driving at is that under the present libel law the cards are stacked against journalists because of this ?malice in law? and Congress should remove that provision to make it serve the ends of justice. That provision may have been justifiable in the old days but not anymore. It has become obsolete.

There is no need to decriminalize libel if that ?presumption of malice? is removed from the law. Journalists can live with ?malice in fact? but not with ?malice in law.? Because no respectable and responsible journalist will willfully and maliciously defame anybody. Those libel complaints filed were from onion-skinned public officials and public figures (public figures are celebrities such as politicians, movie stars, artists, athletes, society matrons who present themselves to the public, or people who, because of their situations in life, such as the First Lady or First Gentleman, cannot help but be in the public eye) who feel aggrieved by publications not favorable to them, yet court the press for complimentary stories.

If somebody maliciously writes and publishes a defamatory story without a justifiable reason, then he deserves to go to jail. But not those who write and publish stories in good faith to fulfill their duty of informing the public on the actions of public people.

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