Wednesday, October 15, 2008 Bautista: We should have an anti-SLAPP statute By Jun Bautista
AFTER the so-called Balas boys reinstalled their protest streamers at Arnedo Park demanding, among other things, the resignation of both priest-turned-governor Ed Panlilio and Provincial Administrator Vivian Dabu, a barrage of criminal cases was filed by the embattled public officials against the resilient Balas boys.
If we were in the United States or Canada or in certain European countries -- where the freedom of speech is highly-valued -- the Balas boys would have availed themselves by now of the protection of an anti-SLAPP statute.
An anti-SLAPP (acronym for Strategic Lawsuit Against Public Participation) statute is a law that protects people exercising their free speech rights against retaliation from the object of their statements by being slapped with a lawsuit. In short a SLAPP is a lawsuit in retaliation for speaking out on a public issue or controversy.
In general, anti-SLAPP laws apply when a person is sued for exercising his or her free speech rights in various ways, such as speaking out on a public issue or controversy by any means, petitioning the government for redress of grievances, criticizing public officials or even a private individual on a matter of public interest.
In the US, there are 26 states and one territory that have enacted anti-SLAPP statutes. In California, which is one of theses states, a person who has been sued for exercising his or her free speech rights or was "SLAPPed" may file a motion to strike (similar to a motion to dismiss) the complaint and if he or she prevails, the suit will be dismissed and such person will be awarded attorney's fees incurred in his or her defense. In addition, this person can file a so-called "SLAPP-back" lawsuit for malicious prosecution and claim for damages.
Of course an anti-SLAPP law is not a license to defame. Countries that have such law clearly limit its application to legitimate public interest issues and will not protect individuals for making defamatory remarks against others, be they private or public individuals.
In most SLAPPs, libel and slander are the most common legal actions. Cases for damages are also common where the suing individual or public official seeks monetary compensation for allegedly suffering emotional distress as a result of the defendant's statements or actions.
In the case of the Balas boys, the free speech dimension of the lawsuits filed against them is hard to ignore. The Balas boys' clamor involves matters of public concern and not simply personal issues that its members have a stake in over and above those of the public -- the people of Pampanga in general.
What would qualify more as a matter of public interest than the call for the resignation, rightly or wrongly, of the province's highest official and his most trusted alter-ego and the criticism of their policies and conduct as public officials? Surely every Pampangueño is interested to know why the Balas boys are clamoring for the resignation of their province's highest executive as well as his most trusted official.
There is no denying that the governor is against the Balas boys' protest as he made no secret of his irritation to it when he spoke of how these protesters disrupt capitol employees.
In fact, he even issued a directive to Mayor Oca Rodriguez not to issue any permit to the Balas boys for the conduct of any rally at Arnedo Park after earlier ordering the taking down of the protest streamers there.
Sewing these facts together with the blank wall that met the governor, after the Balas boys found refuge in BP 880 that gave them a claim to legitimacy in continuing with their protest at Arnedo Park sans a permit from either the city or provincial government, one could only arrive at the conclusion that the criminal cases leveled against the Balas boys are in the nature of a SLAPP -- intended to chill the protesters' exercise of their free speech rights.
It is true that Governor Panlilio and Administrator Dabu may argue that the cases they filed against the Balas boys were meant to protect their reputation and character since the streamers contain defamatory remarks and insinuations. But this argument has always been the standard position when public officials justify the suits they file against their critics.
At any rate, whether or not the governor and administrator's claims are meritorious will ultimately be threshed out in court. On this point, however, I am tempted to cite the case of Guingguing v. Court of Appeals (CA), GR No. 128959 (September 30, 2005) which provides an exhaustive discussion on the nature of criminal libel vis-à-vis freedom of speech and expression.
The case of Guingging, reiterating previous rulings of the Supreme Court (SC) on this issue, tells us that criminal libel cases involving public officials or public figures in matters of public concern can only succeed if the complainant can prove besides the traditional elements of libel the presence of fault or falsity and malice on the part of the defendant.
In defining malice, the Supreme Court relies on the famous US case of New York Times v. Sullivan, which states that malice means knowledge of falsity or reckless disregard as to the truth or falsity of something.
In the much earlier case of Vasquez v. CA, 373 Phil. 238 (1999), the SC ruled that "even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
Also, in Adiong v. Comelec, G.R. No. 103956 (31 March 1992), the High Court quoted with approval the following ruling in New York Times on the extent of free speech:
"(W)e have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." (emphasis provided)
Considering the great leeway that the courts allow on free speech, absent proof beyond reasonable doubt that the Balas boys are guilty of malice, the governor and administrator's cases will not succeed.
It is hoped that our legislators will find of utmost importance the protection of free speech guaranteed by the Constitution by enacting an anti-SLAPP statute similar to those existing in other democratic countries. Perhaps the congressional representatives of our province may want to take the lead.
