Absolutely privileged Qualifiedly privileged (1) Pleadings that are relevant
(2) Testimony of Witnesses (3) Remarks made in the course of the trial
(4) Section 11 of Article VI
(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 juridical, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Article 354 of RPC) (3) Fair commentaries on matters
of public interest (Borjal v. CA)
Rule on Privileged Communication
• The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has interest, or concerning which he
has duty, is privileged if made to a person having a corresponding interest, although it contains incriminatory matter which, without privilege, would be libelous and actionable. (Ledesma v. CA)
• The concept of privileged communications implicit in the freedom of the press. (Borjal v. CA)
•
Pleadings. Pleadings, etc., are privileged; but, to be so, they must be relevant to the matter under investigation. (Gutierrez v. Abila) So also about remarks made in the course of the trial (Malit v. People)•
Complaint in SEC. The publication of a complaint filed with SEC before any judicial action is taken thereon is privileged as a report of a judicial proceeding. (Reasons: (1) Said pleadings have become part of the public record open to the public to scrutinize; (2) Said pleadings are presumed to contain allegations and assertions lawful and legal in nature, appropriate to the disposition of issues ventilated before courts for the proper administration of justice and therefore, of general public concern.) (Cuenco v. Cuenco)•
Standards. The law against libel is protective of reputation according to community standards and not according to personal or family standards. (Bulletin Publishing Corp v.Noel) Clear and Present Danger Test is used. (Reyes v.
Bagatsing, David v. Arroyo, Bayan v. Ermita)
•
Derogatory remarks in newspapers. To enjoy immunity, a publication containing derogatory information must be not only true but also fair, and it must be made in good faith and without comments or remarks. (Policarpio v. Manila Times Publishing Co.)•
Honest mistake or imperfection. In preparation of stories, press reporters and edition usually have to race with their deadlines; consistently with good faith and reasonable care, they should not be held to account to a point of suppression, for honest mistake or imperfection in the choice of words (Quisumbing V. Lopez).•
Defamatory information against public officials. For liability to arise without offending the press freedom, there is the test to meet: statements was made with 'actual malice'- ie.knowledge that it was false or with reckless disregard of whether it was false or not (NY times v. Sullivan). This rule is extended to a defamatory imputation against a barangay official as well as a PCGG Commissioner. (Jalandoni v.
Drilon)
•
The rule in TIMES case is extended to private sector public figures (e.g. newscaster, political analyst etc). (Hustler Magazine And Larry Flynt Vs. Jerry Falwell)•
HOWEVER, malice is not required in publications relating to judicial action. One of the fundamental pubic interests is the maintenance of the integrity and orderly functioning of the administration of justice. The protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice which is as important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary.A publication relating to judicial action in a pending case which tends to impede embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and punishable as contempt (In re: Jurado)
FAIR COMMENT (US RULE): These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give one’s opinions on decisions and actions.
OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding
their public actuations. Comment on their private lives, if not germane to their public personae, are not protected.
Obscenity
•
Nature. Obscenity is an unprotected speech which the State has the right to regulate.•
Old definition: People v. Kottinger (1923) defined obscenity as something which is offensive to chastity, decency or delicacy.•
Example: A live sexual intercourse is plain pornography (People v. Padan)• There is no perfect definition of obscenity but the latest word is that of Miller v. California (Fernando v. CA, Dec. 6, 2006) Miller Test
a) Whether the average person, applying contemporary community standards* would find that the work, taken as a whole, appeals to the prurient5 interest;
(b) Whether the work depicts or describes, in a patently offensive way, sexual conduct** specifically defined by the applicable state law;
(c) Whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value.(Miller vs. California (1973)) (Gonzales v. Kalaw Katigbak)
* The court should not apply a national standard but the standard of the community in which the material is being tested. (Cruz)
** Examples include (a ) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representation
5 Itching, longing; uneasy with desire or longing; of persons having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd (Roth vs. US)
or descriptions of masturbation, excretory functions, and lewd exhibition of genitalia. (Miller v. California)
Note:
It would be misreading of Miller to conclude that the trier of facts has unbridled discretion in determining what is patently offensive. (Fernando v. CA citing Jenkins v. Georgia)
Note:
Stricter rules could be followed for television, radio and schools.
•
RENTON vs. PLAYTIME THEATERSDOCTRINE: Zoning legislation dealing with adult entertainment that does not ban adult theaters altogether is not invalid being properly analyzed as a form of time, place and manner of regulation. “Content-neutral time, place and manner regulations are acceptable so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.
BETHEL SCHOOL DISTRICT vs. FRASER
DOCTRINE: The first amendment does not prevent the school district from disciplining students in giving offensively lewd and indecent speech at a school assembly. The use of an offensive form of expression may not be prohibited to adults making a political point but it does not follow that the same latitude must be permitted to children in public school.
It is highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. It is well within the power of the school to prohibit vulgar language to be used by its students.
HAZELWOOD SCHOOL DISTRICT vs. KUHLMEIER
DOCTRINE: Schools had the authority to censor if it could affect the education of others. This case ruled that the
censorship in the schools was only acceptable if it were for
“valid educational purpose.” Stricter rules should be followed for speech in school because of the nature of the community that is involved and the relationship between school and parents.
•
Q: May sex in the internet be banned?A: It depends. Obscenity may be banned. But attempts to regulating sex which does not come under the definition of obscenity for the purpose of protecting minors have failed on the argument under the definition of obscenity and are therefore legitimate for adults. (Reno v. American Civil Liberties Union (1997), US v. American Library Association (2003))
Procedure before law enforcement agencies may seize allegedly obscene publications:
(1) The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order;
(2) The authorities must convince the court that the materials sought to be seized are “obscene,” and pose a clear and present danger of an evil substantive enough to warrant State interference and action;
(3)
The judge must determine whether or not the same are indeed “obscene”. The question is to be resolved on a case-to-case basis and on His Honor’s sound discretion;(4) If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;
(5) The proper suit is then brought in the court under Article 201 of the Revised Penal Code;