[Related story: Media's Public, October 12, 2022: Court of Appeals rejects second plea of Rappler journalists, affirms RTC finding of cyber-libel.]

PRIVATE OR PUBLIC FIGURE: 'UNKNOWN DEFENSE.' The Court of Appeals (CA) rejection of the motion for reconsideration of its ruling affirming the conviction of Rappler's Reynaldo Santos Jr. and Maria Ressa for cyber-libel dealt, among other issues, with the status of complainant Wilfredo Cheng, a businessman.

Was Cheng a "public figure" at the time the alleged cyber-libel was committed?

If he was, Santos and Ressa would have privileged communication, which means actual malice by them must be proved. If he was just a private person, there was no mantle of privilege and malice was presumed against the two journalists.

Some lawyers call the issue of public/private figure as an "unknown defense" in libel. Not anymore, at least to sued journalists who see its value in proving absence of malice.

In the CA resolution promulgated Monday (October 10, 2022), the court ruled that Cheng was not considered a public figure. Thus, malice was presumed against Santos and Ressa who, based on the court finding, were not able to disprove it.

WHY IT MATTERS. Journalists and other users of digital media, who are at risk of cyber-libel suits, will have the burden of proving absence of malice, a major defense in libel, if the offended person is a private person and not a public figure.

Thus, the complainant, through his lawyer, will contend he is a private person when cyber-libel is committed. If the court is thus convinced, the offender will lose the built-in protection of the article being privileged communication and the presumption of malice stays.

In contrast, the journalist or media user will argue that the complainant is a public person or public figure for his own interest of proving absence of malice to get off the hook.

CASES OF TOMAS, MIGUEL. The question of "public figure" figured prominently in the separate Cebu libel cases filed by former mayor Tomas Osmeña and his son Miguel.

In 2014, Tomas filed a libel complaint against broadcaster-newspaper columnist Bobby Nalzaro over an item in Nalzaro's column in SunStar. In a motion for reconsideration seeking to change the September 2, 2016 adverse ruling of the Department of Justice, Tomas argued that he was not the mayor and wasn't holding any public office when the crime was committed. The DOJ dumped the argument.

In 2018, Miguel filed a complaint for four counts of libel and cyber-libel against Nalzaro. Nalzaro's defenses were that these columns were not defamatory and Miguel is a "public figure" and thus actual malice was required and reckless disregard of the facts had to be proved. The prosecutor found "probable cause" and indicted Nalzaro.

Tomas lost the case, with the court, independently of DOJ's dismissal of the complaint, affirming Nalzaro's acquittal. Miguel's case was still pending when Nalzaro died on March 17, 2022.

WHY CA SEES CHENG AS PRIVATE. In refusing the argument of Rappler's Santos and Ressa that complainant Wilfredo Cheng was a public figure and therefore the article should've been considered "qualifiedly privileged," the CA reasoned:

[] Cheng's being a "renowned businessman" with several companies is not enough to classify him as a public figure, citing the definition in Guingging vs Court of Appeals, which requires one to be a "celebrity," or anyone who "has arrived at a position where public attention is focused upon him as a person." Cheng, the CA ruled, didn't meet the standard in the SC definition of public figure.

[] In Alfonso Yuchengco vs Manila Chronicle, the CA resolution said, businessman Yuchengco was written about in articles for his functions as a presidential adviser on foreign affairs. He was still entitled to his right to privacy, the Yuchengco ruling said. To determine if the topic was of public interest, Yuchengco couldn't be deemed a public person. Neither was he a public figure, who "must thrust himself to the forefront of particular public controversies, in order to influence the resolution of the issues involved," on which they "invite attention or comment."

For Cheng to be considered a public figure, the CA said, there is no proof that he "voluntarily thrusted (sic) himself to the forefront of the public controversies" that were raised in the Rappler article.

SELECTIVE CITATIONS. Santos and Ressa must have cited other SC cases whose rulings would contradict the precepts in CA citations. It is said that a judge, just like the lawyers arguing before him, can pick the cases to support his conclusion.

On the definition of public figure, for example, the SC 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." One does not have to be a "celebrity" who's literally mobbed by the public.

If media seeks him out on an issue that concerns public interest, he becomes a public figure. In Art Borjal and Max Soliven vs Court of Appeals and Wenceslao, even if a person is not a public figure, "it does not necessarily mean he could not be the subject of public comment." In Miguel Osmeña's case, for example, since the comment of his dad, then mayor Tomas, was a subject of public or general interest, it cannot become less so because it also involved a private person.

FOR A CLEAR-CUT RULE. Under the CA standard in the Rappler journalists' case, it would seem that Tomas Osmeña could still be a public figure even though at the time of the offense, he was no longer in public office. And, using the same CA yardstick, his son Miguel could be, like Cheng, deemed a private person even though he was "dragged" into a public issue.

The need for the SC to lay down a more clear-cut rule on public person or public figure is highlighted by the seeming contradiction raised by the contending parties in the CA decision this week. And this question: Would voluntariness of the private person to be "thrust" into a public controversy be essential to being classified as a public figure?