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Thursday, September 19, 2019
CEBU

Seares: Miguel Osmeña vs. Bobby Nalzaro: Public figure as ‘unknown libel defense’

n Related “Media’s Public” column: “Is Miguel Osmeña, the mayor’s son who sues Nalzaro, a private person?” [Oct. 19, 2018]

THE prosecutor handling the criminal complaint of libel filed in October 2018 by Ramon Miguel V. Osmena, son of Cebu City Mayor Tomas Osmeña, has decided to charge broadcaster-newspaper columnist Pablito “Bobby” Nalzaro with four counts of cyber libel and libel under the Revised Penal Code.

In sum, Prosecutor Russel Busico found probable cause of the crime of libel, rejecting Bobby’s defense that (a) his columns were not defamatory and (b) Miguel is a public figure who, to be libeled, requires “actual malice.”

The resolution, a SunStar report said, was issued in January but was received by Nalzaro’s lawyer Joan Baron only last May 20 and published in the media May 24. But never mind the epic slow mail, which if true took almost four months to reach the recipient. Instead, ask what the prosecutor said in his ruling.

Only 2 are disputed

The prosecutor ruled that all the four elements of libel were present. Busico said two columns that Nalzaro wrote in SunStar Cebu issues of Sept. 5 and Sept. 12 in 2018 were defamatory and malicious.

The elements of publication and identification are not contested. It is only the other two, defamation and malice, that are being disputed. And those two elements are locked into each other. Look:

Found offensive by the prosecutors in Bobby’s Sept. 5 column: Miguel is “reportedly a stakeholder in the business of butane” and Tomas is “protecting an illegal business because his son is involved.” In Bobby’s Sept. 12 column, this phrase, part of a question, was found by Busico as defamatory: “the manufacturer of those illegal butane products where your son Miguel, is a part owner?”

Statements, context

Standing alone, those statements, though not slanderous per se, appear defamatory: Miguel is linked to an illegal business that is allegedly being protected by his father, the mayor. An imputation of a crime is one of the ways of committing libel.

In the context of what happened, however, the alleged meddling of Mayor Tomas in a police function, such as ordering the release of three butane vendors from police custody; the affidavit of an alleged former business partner; and the charges filed by the police against the mayor arising from the butane incident all attest that Bobby had factual basis for his comments.

No actual malice

Apparently, there was no reckless disregard of the facts by Nalzaro. Which is required for “actual malice.” Which in turn is required when the person allegedly libeled is a public person or figure.

See the link? The prosecutor dumped Bobby’s “public figure” defense because if Miguel is considered a private figure, the journalist’s malice is presumed: No need for evidence of actual malice; only malice in law.

Focus on the subject

The 1999 landmark case of Borjal focuses on the issue discussed, not on the person. As quoted by Inquirer columnist Oscar Franklin Tan who wrote last March 2, 2014 about “Public figure the unknown libel defense”:

“If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some way the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant...”

I wrote in a 2015 column that a public person, which Tomas is, and a public figure, which Miguel is, “are on the same level in libel legal terrain.” It would take “actual malice” to libel them.

Who is a public figure?

The Supreme Court in Ayers vs. Capulong said “anyone who has arrived at a position where public attention is focused on him as a person” is a public figure.

I said then that Miguel qualifies as a public figure: Being the mayor’s son (“unico hijo”), he is widely known to administer Tomas’s Facebook account. He gets attention, even if he does not want it. He had been involved in controversies and each time he was splashed on media platforms. Sometimes, he even shares his dad’s limelight. Last election, he spoke before a massive crowd of BOPK supporters.

By SC’s definition, a movie star, a sports personality, or even a radio commentator like Bobby is a public figure. Cirse “Choy” Torralba of dyRF radio is one broadcaster whom the high tribunal (in Guingguing vs. Torralba, Court of Appeals and People of the Philippines, in 2005) officially recognized as a public figure.

Public issue

But does Miguel’s being deemed a public figure still matter in the libel case he filed against Bobby? I wrote earlier, in that 2018 column, that it may not matter anymore since what Nalzaro commented on was a public issue.

“Even if Miguel is a private person and does not qualify as a public figure, the SC ruled, in Art Borjal and Max Soliven vs. Court of Appeals and Wenceslao, (GR#126466, in 1999), that ‘it does not necessarily mean he could not be the subject of a public comment...” “Since the mayor’s alleged meddling was ‘a subject of public or general interest, it cannot become less so’ just because it also involved a private person.”

Well, the prosecutor’s office believes otherwise. The “public figure” card has become suddenly more important in the Nalzaro libel case, no longer just the “unknown libel defense.”


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