Seares: Journalists sued for libel do not sue back, as a rule. But they can

RAPPLER CEO Maria Ressa on Feb. 18, 2019, a day after posting bail when she was charged with cyber libel, called the lawsuit an act of “naked intimidation to quash critical reporting” of President Duterte. She intoned, “As a journalist, I will hold the government to account.”

Last May 13, veteran journalist Ellen Tordesillas was called by President Duterte in an ambush interview a prostitute, “every inch a prostitute.” Not the flesh-peddler kind but the variety that traffics in commerce of journalism.

Tordesillas, a columnist of newspaper “Malaya” and trustee and writer of Vera Files (“a group that undertakes in-depth reporting”), has not been charged for allegedly plotting to oust Duterte. The “prostitute” label though is worse than an accusation of libel. And she is not slandered in a group libel, as when pro-Duterte blogger Mocha Uson in 2016 called journalists “press-titutes”; Tordesillas this time is singled out and called prostitute, every part of her no less.

Ressa has not sued, except answer the charge of libel filed against her by a private businessman, not the government. Defamed Tordesillas has not sued and is not likely to sue. Why are they--and other journalists in similar straits–not fighting back by filing their own complaints?

Reasons why

There are good reasons, including:

[1] The unwritten rule among journalists to engage in discourse, not in legal battle, with those who disagree with what they publish. They’re in communication; communicate, they must. Since subjects of the news have the right of reply, news media are bound to provide space or time in their outlets.

[2] Being sued is “part of the journalist’s territory,” a risk or hazard of the trade, which journalists acknowledge and those attacking media gleefully exploit. Why should Ressa complain, Palace communicators said, when her colleagues valiantly and patiently face their complainants in court?

[3] Frivolous lawsuit to counter a libel complaint is difficult to prove as our libel law is so crafted as to stack the cards against the journalist. Malice is presumed unless the “victim” is a public person or figure, in which case a higher degree of proof is required. And actual injury on honor is not necessary: anything that “tends to cause dishonor, discredit, or contempt” is punishable.

[4] Whom will a journalist sue if it is the President himself who defames? Duterte is exempt from a lawsuit until he steps down from office. Other public officials shield themselves with the presumed regularity of public function and acting without malice.

Mass lawsuits

A lawsuit against a public official or public figure who sues a journalist is generally a “no-no” among news media workers. The class-action against then First Gentleman Miguel Arroyo, husband of Gloria Macapagal-Arroyo who ruled the country from 2001 to 2010, was a big exception.

Mike Arroyo had filed 10 libel cases against 46 journalists over a period of 36 months since 2003. News organizations saw that as “abuse of the right to sue” and amounted to obstructing or impairing the work of journalists.

Counter class action

And media struck back, not in their respective outlets but in court. On Dec. 28, 2006, journalists and news organizations filed a class civil action with the Makati Regional Trial Court (RTC) against Mike, seeking damages of P12.5 million, with the award, if the lawsuit succeeds, going to a press freedom fund. On Sept. 28, 2008, the Court of Appeals (CA) junked Arroyo’s petition to dismiss the case, ordering the RTC to continue hearing it. On May 28, 2010, the Supreme Court (SC) upheld the CA ruling in favor of the journalists.

No story about the case came out after that. Earlier, on May 27, 2007, or three years before the SC ruling, Mike Arroyo ordered his lawyers to drop his mass complaints against media. He cited World Press Freedom Day, suggesting it was his concession to the precept of free press and his “gesture for peace.” He must have also been prompted by intimations of his mortality, having just gone through a triple heart-bypass surgery when he withdrew the complaints.

However, the class action against Arroyo turned or would turn out, it was an exceptional case. It was not just the 46 journalists sued by Mike who counter-sued the public figure; media organizations and big personalities in print and broadcast joined the lawsuit. They cited “sleepless nights” and “chilling effect” on media practitioners. (Insomnia may be quantified but how do courts measure the chill?)

When journalist errs

Journalists don’t counter-sue except in exceptional cases, as in the Mike Arroyo case. That partly explains why public persons often use litigation to strike at news media.

Cost of defending the lawsuit is stiff, especially when venue of trial is far from the news group’s workplace, requiring resources that many community media outlets lack. And, for that and other reasons I listed earlier, media don’t sue back.

But one reason that media must acknowledge could happen and occasionally did happen is when the sued journalist indeed committed libel. By reckless or intentional behavior, the accused smeared the public official’s reputation and when hauled to court, he implored for press freedom even as he called the libel suit another “badge of honor” for him.


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