Seares: Leo Lastimosa's defense

IT seemed odd that two Cebu broadcasters were sued for libel because of columns they wrote in newspapers, not for opinions they expressed on air.

Radio tends to induce more defamatory material than print. Ask any radio commentator. They feel freer and more powerful before a microphone. Libel complainants still have to learn how to gather evidence thrown in the wind, which used to be what broadcast talk was about. Print journalists, knowing the printed word is caught on paper, are mostly cautious.

DYSS commentator Bobby Nalzaro was sued by now Cebu City Mayor Tomas Osmeña for a column in Sun.Star. DYAB commentator Leo Lastimosa, by then Cebu governor Gwen Garcia for a column in The Freeman.

The Lapu-Lapu City prosecutor decided against Bobby and filed the information for libel in court. Bobby raised the ruling to Department of Justice for review. DOJ cleared him. Cebu Regional Trial Court convicted Leo who appealed the decision to Court of Appeals. C.A. affirmed the conviction.

WHY DOJ CLEARED BOBBY NALZARO. Media’s Public, Oct. 1, 2016

Whatever the basis for the complaint -- print, broadcast or online -- the essential elements of libel are the same.

DOJ ordered Nalzaro’s case dropped. It saw his comment as not defamatory and not malicious. There was no quarrel about publication and identification: It was Tomas he talked about and it was published.

C.A. affirmed Lastimosa’s conviction because it believed he identified and defamed Gwen and there was malice. His major defense from trial court to the C.A. Special 19th Division has been that “Doling,” the subject of the “offensive” column (“Si Doling Kawatan,” June 29, 2007, The Freeman), is not Gwen.

Was Gwen identified?

The motion for recon to C.A.’s July 27 ruling, which Leo through his lawyer Celso V. Espinosa filed Sept. 9, dwelt on (1) the issue of identification, (2) C.A’s giving more weight to Gwen’s testimony and her witnesses and exhibits and (3) the “absence of clear evidence” to prove guilt. But it’s the ID thing that appears to be the bigger bone of contention.

Is Gwen “Doling”? She was not named, she has never been a fish vendor or a barangay captain, and Doling’s description does not match Gwen’s, Leo’s appeal said. She was fiction; it was a parody of sorts. One cannot defame or slander a non-existent person; thus malice becomes irrelevant.

The C.A. ruled that it is enough “if by intrinsic reference the allusion is apparent” and by description or reference to facts, readers may know the person alluded to. All it needs is that a third person “recognized or could identify the party vilified.”

Or so the C.A. ruled. If the MR won’t persuade the C.A. to change its mind, most likely Leo will go to the Supreme Court.

The high tribunal’s decision ruling may enrich jurisprudence and cast light on some journalistic legal questions. Such as whether testimony of a a relative and political ally of the complainant and similarities in characteristics (e.g. sounds in the names “Gwendolyn” and “Doling”) constituted enough identification.

Other columns

But what may inform journalists who seek refuge behind the defense of “absence of malice” is one C.A. argument on the ID issue: Descriptions of Doling, the C.A. said, as “loud-mouthed, foul-tempered, corrupt, abusive, vindictive and cruel person” in the litigated column were also written about in Leo’s past columns that referred to or were associated with Gwen.

It’s a case where a column is judged not solely by itself but in relation to other previous columns. The RTC and C.A. apparently established identification and malice that way.

The Supreme Court though might look at it differently and use other standards on journalists who report or comment on public officials. As public persons or figures, they are not “ordinary citizens” and they deserve rigid scrutiny.

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No ‘hunting license’ for the press

Here are parts of the C.A. decision on the Lastimosa case that may help media practitioners in their work. Please don’t cup your ears, do listen.

-- “The danger of an unbridled irrational exercise of the right of free speech and press, that is, in contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and brutish.”

-- “The press is the servant, not the master of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.”

As we Google words like “cumbrous” and “Hobbesisn,” we note that the quotes are from the Supreme Court (Fermin vs. People). The C.A. obviously cited them for media’s benefit.


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