Leonen on why defamation should NOT be criminal

Defamation can be a crime as well as a civil wrong. Criminal defamation occurs when one purposely communicates to any person, orally or in writing, any information which he or she knows to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule. definitions.uslegal.com/c/criminal-defamation.

LEONEN: I reiterate my view that libel ought to be decriminalized. It is inconsistent with the constitutionally protected right to freedom of speech. There is no state interest served in criminalizing libel. Civil actions for defamation are sufficient to address grievances without threatening the public's fundamental right to free speech.

The libel provisions in the Revised Penal Code are now overbroad. They do not embody the entire doctrine of principles that this Court for decades has expounded on under the free speech principles to which the State adheres.

The history of the criminalization of libel in the Philippines shows that libel started as a legal tool of the Spaniards and the Americans to protect government and the status quo. It was promulgated to regulate speech that criticized foreign rule. Jurisprudence has expanded and qualified the bare text of the law to give way to the fundamental right to expression.

Thus, in theory, only private parties ought to be protected from defamatory utterances. However, in practice, notable personalities who are powerful and influential—including electoral candidates and public officers—are the usual parties who pursue libel cases. The limitations set out in jurisprudence have not been enough to protect free speech. Clearly, the libel laws are used to deter speech and silence detractors.

The libel provisions under the Revised Penal Code invade a constitutionally protected freedom. Imposing both criminal and civil liabilities to the exercise of free speech produces a chilling effect.

I maintain that free speech and the public's participation in matters of interest are of greater value and importance than the imprisonment of a private person who has made intemperate statements against another. This is especially so when there are other remedies to prevent abuse and unwarranted attacks on a person's reputation and character.

Civil actions do not endanger the right to free speech, such that they produce an unnecessary chilling effect on critical comments against public officers or policies.

In a civil action, the complainant decides what to allege in the complaint, how much damages to request, whether to proceed or at what point to compromise with the defendant. Whether reputation is tarnished or not is a matter that depends on the toleration, maturity, and notoriety of the person involved. Varying personal thresholds exists. Various social contexts will vary at these levels of toleration. Sarcasm, for instance, may be acceptable in some conversations but highly improper in others.In a criminal action, on the other hand, the offended party does not have full control of the case. He or she must get the concurrence of the public prosecutor as well as the court whenever he or she wants the complaint to be dismissed. The state, thus, has its own agency. It will decide for itself through the prosecutor and the court.

Criminalizing libel imposes a standard threshold and context for the entire society. It masks individual differences and unique contexts. Criminal libel, in the guise of protecting reputation, makes differences invisible.

Libel as an element of civil liability makes defamation a matter between the parties. Of course, because trial is always public, it also provides for measured retribution for the offended person. The possibility of being sued also provides for some degree of deterrence.

The state's interest to protect private defamation is better served with laws providing for civil remedies for the affected party. It is entirely within the control of the offended party. The facts that will constitute the cause of action will be narrowly tailored to address the perceived wrong.

The relief, whether injunctive or in damages, will be appropriate to the wrong.

Declaring criminal libel as unconstitutional, therefore, does not mean that the state countenances private defamation. It is just consistent with our democratic values. (Justice Leonen's dissenting opinion in G.R. No. 211120, February 13, 2017)

Mario Victor "Marvic" F. Leonen (born December 29, 1962) is an Associate Justice of the Supreme Court of the Philippines. He is the second youngest to hold the said position since Manuel V. Moran in 1938. Prior to his stint in the country's highest court, he had served as chief peace negotiator of the Republic of the Philippines in the talks with the Moro Islamic Liberation Front. Leonen was dean of the University of the Philippines College of Law at Diliman from 2008 to 2011. He is well known in the fields of environmental activism and community organizing. en.wikipedia.org/wiki/Marvic_Leonen.

Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits. In fact, Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech when necessary to protect the reputation or rights of others. en.wikipedia.org/wiki/Defamation.

Defamation laws protect people from untrue, damaging statements. They provide important recourse for people whose careers, reputations, finances and/or health have been damaged by the harmful statements.  However, defamation law often intersects with laws that protect freedom of speech. So, just as it is important to protect people from the harms that untrue statements may cause, it is also important to protect speakers so that they may speak freely without fear of reprisal. This is a delicate balance and it is often at the forefront in cases involving libel (written defamation) or slander (oral defamation). www.alllaw.com/articles/nolo/civil-litigation/defamation-character-free-speech.html.