Seares: Both DOJ and RTC judge found no ‘probable cause’ in Nalzaro libel

• Related Media’s Public columns: “Why DOJ cleared Bobby Nalzaro,” Sept. 30, 2016; “Which libel case can send a radio commentator to jail?” March 14, 2015

CEBU Regional Trial Court Judge Gilbert P. Moises’s order dismissing the libel complaint of Cebu City Mayor Tomas Osmea against newspaper columnist/broadcaster Bobby Nalzaro, didn’t merely “follow” the ruling of the Department of Justice (DOJ). It didn’t dismiss the complaint just because DOJ wanted it recalled.

The court made its own finding under the principle that once the information is filed, the court “is in complete control” of the case.

In an eight-page order released Friday (Aug. 26), Judge Moises ruled that Nalzaro’s column of Oct. 25, 2014 was (1) not defamatory and (2) bereft of malice. Two of four essential elements of libel were missing.

In effect, Nalzaro was cleared by DOJ in its Sept. 23, 2016 resolution that reversed the local prosecutor’s ruling. The columnist was also cleared by the RTC judge in its Aug. 20, 2018 order. And both did not find probable cause.

The issues

The court had two issues before the court: (1) whether Nalzaro must be arraigned, which Osmeña’s lawyer as private prosecutor sought; and (2) whether the information should be withdrawn, which DOJ through the city prosecutor asked.

To settle issue #1, the court must decide whether there was probable cause, which in turn would determine issue #2: whether the information must be withdrawn and the case dismissed.

A public figure

What can journalists, journ students, and media consumers learn from the Nalzaro case? The notably interesting points:

• The mayor argued that because at the time he was defamed he wasn’t the mayor, he was only a private citizen. The court rejected that claim. He was not a public official but as a former congressman and a politician who regularly made the news, he was a “public figure” who like a public official or “public person” was subject to media scrutiny on matters of public interest. Nalzaro, himself a public figure, can similarly be criticized.

The journalist, claiming privileged communication, has wider latitude in reporting and commenting on a public person or public figure than on a private person. The public person or figure has less claim to privacy. And there must be actual malice, not just presumed malice.

Mistakes, malice

• Judge Moises said “fabricated charges” that Nalzaro used in his column “may not be the accurate words” but “not entirely without basis.” “Known to be a hard-punching columnist,” Nalzaro must have used the “strong words” to “perk up interest of his readers,” the judge said. “Dry facts by themselves are hardly stirring,” Moises quoted a line from a Supreme Court decision (Ciriaco Guinguing vs. Court of Appeals and People of the Philippines), which incidentally involved another Cebu broadcaster, Choy Torralba.

Supreme Court decisions allow “color and innuendo” and even mistakes from the journalist. “Even assuming contents are false, mere errors or inaccuracy or even falsity does not prove actual malice,” one such ruling said.

Proof required

Unlike in the libel case filed by then Cebu governor Gwen Garcia against broadcaster Leo Lastimosa for a newspaper column in 2007, DOJ and the court found no actual malice in Nalzaro’s column.

To prove that Gwen was the one referred to as “Doleng,” she presented Lastimosa’s 14 past columns in “The Freeman.” In establishing identity (another essential element of libel, along with publication), Gwen’s lawyer proved a pattern of actual malice. (Convicted in 2013, the ABS-CBN broadcaster was also found guilty by the Court of Appeals in 2016.)

That didn’t happen in Nalzaro’s case, in which identity was not disputed and absence of probable cause was apparent from the pleadings alone.

Nalzaro praised God for the decision. The lawyers, from J.P. Garcia and associates, and the judge, sharp and clear-eyed, also had something to do with it.


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