SYNOPSIS

The case under consideration is a petition for review filed by petitioners Arturo Borjal and
Maximo Soliven seeking the reversal of the Court of appeals decision in Francisco Wenceslao y
Artiro Borjal and Maximo Soliven, CA-GR No. 40496, holding on March 25, 1996 that petitioners
are solidarily liable for damages for writing and publishing certain articles claimed to be
derogatory and offensive to private respondent Francisco Wenceslao.
The petition was impressed with merit. The Court ruled that in order to maintain a libel suit,
it is essential that the victim be identifiable although it is not necessary that he be named. It is
also not sufficient that the offended party recognized himself as the person attacked or defamed,
but is must be shown that at least a third person could identify him as the object of the libelous
publication. Regrettably, these requisites have not been complied with in the case at bar.
Moreover, the Court said that even assuming that the contents of these articles are false, mere
error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatement are
inevitable in any scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some room for misstatement
of facts as well as for misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy. Accordingly, the
petition is granted and the decision of the Court of Appeals and its resolution are reversed and
set aside.
SYLLABUS
1. CRIMINAL LAW; LIBEL; TO MAINTAIN A LIBEL SUIT, IT IS ESSENTIAL THAT THE VICTIM
BE IDENTIFIABLE ALTHOUGH IT IS NOT NECESSARY THAT HE BE NAMED. In order to
maintain a libel suit, it is essential that the victim be identifiable although it is not necessary
that he be named. It is also not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person could identify
him as the object of the libelous publication. Regrettably, these requisites have not been
complied within the case at bar.
2. ID.; ID.; PUBLICATIONS WHICH ARE PRIVILEDGED FOR REASONS OF PUBLIC POLICY
ARE

PROTECTED

BY

THE

CONSTITUTIONAL

GUARANTY

OF

FREEDOM

OF

SPEECH. Indisputably, petitioner Borjals questioned writings are not within the exceptions of
Art. 354 of the Revised Penal Code for, as correctly observed by the appellate court, they are
neither private communications nor fair and true report without any comments or remarks.
However this does not necessarily mean that they are not privileged. To be sure, the
enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications
since fair commentaries on matters of public interest are likewise privileged. The rule on

privileged communications had its genesis not in the nations penal code but in the Bill of
Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918,
in United States vs. Caete (38 Phil. 253), this Court ruled that publications which are
privileged for reasons of public policy are protected by the constitutional guaranty of freedom
of speech. This constitutional right cannot be abolished by the mere failure of the legislature
to give it express recognition in the statute punishing libels.
3. ID.; ID.; PRIVILEDGED COMMUNICATION; IMPLICIT IN FREEDOM OF SPEECH. The
concept of privileged communications is implicit in the freedom of the press. As held
in Elizalde v. Gutierrez (76 SCRA 448) and reiterated in Santos v. Court of Appeals (203 SCRA
110) To be more specific, no culpability could be imputed to petitioners for the alleged
offending publication without doing violence to the concept of privileged communications
implicit in the freedom of the press. As was so well put by Justice Malcolm in Bustos: Public
Policy, the welfare of society, and the orderly administration of government have demanded
protection of public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege. The doctrine formulated in these two
(2) cases resonates the rule that privileged communications must, sui generis, be protective
of public opinion. This closely adheres to the democratic theory of free speech as essential to
collective self-determination and eschews the strictly libertarian view that it is protective
solely of self-expression which, in the words of Yale Sterling Professor Owen Fiss, makes its
appeal to the individualistic ethos that so dominates our popular and political culture. It is
therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal
provision exempting from liability only private communications and fair and true report
without comments or remarks defeats, rather than promotes, the objective of the rule on
privileged communications, sadly contriving as it does, to suppress the healthy effloresence
of public debate and opinion as shining linchpins of truly democratic societies.
4. ID.; ID.; PUBLIC FIGURE; DEFINED. We deem private respondent a public figure within the
purview of the New York Times ruling. At any rate, we have also defined public figure in Ayers
Production Pty., Ltd. v. Capulong(160 SCRA 861)as x x x a person who, by his
accomplishments, fame, mode of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs and his character, has become a public
personage. He is, in other words, a celebrity. Obviously, to be included in his category are
those who have achieved some degree of reputation by appearing before the public, as in the
case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers, famous inventors and explorers, war
heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great
Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where
the public attention is focused upon him as a person.

5. ID; ID; FAIR COMMENTARIES ON MATTERS OF PUBLIC INTEREST ARE PRIVILEGED

AND CONSTITUTE VALID DEFENSE IN AN ACTION FOR LIBEL OR SLANDER. To
reiterate, fair commentaries on matters of public interest are privileged and constitute a valid
defense in an action for libel or slander. The doctrine of fair comment means that while in
general every discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is deemed,
malicious, nevertheless, when the discreditable imputation is directed against a public
person in his public capacity, it is not necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must either be a false allegation of fact or
a comment based on a false supposition. If the comment is an expression of opinion, based
on established facts, then it is immaterial that the opinion happens to be mistaken, as long
as it might reasonably be inferred from the facts.
6. ID.; ID.; MALICE; DEFINED; ABSENT IN CASE AT BAR. Malice connotes ill will or spite and
speaks not in response to duty but merely to injure the reputation of the person defamed,
and implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad
motive. It is the essence of the crime of libel. In the milieu obtaining, can it be reasonably
inferred that in writing and publishing the articles in question petitioner Borjal acted with
malice? Primarily, private respondent failed to substantiate by preponderant evidence that
petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or that the
articles were written and published without good motives or justifiable ends. On the other
hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and
prodded by his responsibility as a newspaperman, he proceeded to expose and denounce
what he perceived to be a public deception. Surely, we cannot begrudge him for that. Every
citizen has the right to enjoy a good name and reputation, but we do not consider that
petitioner Borjal has violated that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have
been written or published with the knowledge that they are false or in reckless disregard or
whether they are false or not. Reckless disregard of what is false or not means that the
defendant entertains serious doubt as to the truth of the publication, or that he possesses a
high degree of awareness of their probable falsity.
7. ID.; ID.; PUBLIC OFFICIAL MUST NOT BE TOO THIN-SKINNED WITH REFERENCE TO
COMMENTS UPON HIS OFFICIAL ACTS. Even assuming that the contents of the articles
are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and debate. Consistent
with good faith and reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language. There must be
some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in
our democracy. In Bulletin Publishing Corp. v. Noel (167 SCRA 255) we held A newspaper

especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being
hauled to court by one group or another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of morality and civility prevailing within
the general community. To avoid the self-censorship that would necessarily accompany strict
liability for erroneous statements, rules governing liability for injury to reputation are
required to allow an adequate margin of error by protecting some inaccuracies. It is for the
same reason that the New York Times doctrine requires that liability for defamation of a
public official or public figure may not be imposed in the absence of proof of actual malice on
the part of the person making the libelous statement. At any rate, it may be salutary for
private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S. vs.
Bustos (37 Phil. 731 [1918]), that the interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound may be assuaged by the balm of a clear conscience. A public official
must not be too thin-skinned with reference to comments upon his official acts.
[G.R. No. 126466. January 14, 1999]
ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT OF
APPEALS and FRANCISCO WENCESLAO, respondents.
DECISION
"The question is not so much as who was aimed at as who was hit." (Pound, J., in Corrigan v.
Bobbs-Merill Co., 228 N.Y. 58 [1920]).
BELLOSILLO, J.:
PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly
contested freedoms of man, the issue of the right of free expression bestirs and presents itself
time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever
shifting terrain, explore and furrow its heretofore uncharted moors and valleys and finally
redefine the metes and bounds of its controversial domain. This, prominently, is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone radical
doctrinal metamorphoses than his right to freely and openly express his views. Blackstone's
pontifical comment that"where blasphemous, immoral, treasonable, schismatical, seditious, or
scandalous libels are punished by English law . . . the liberty of the press, properly understood,
is by no means infringed or violated,"found kindred expression in the landmark opinion of
England's Star Chamber in the Libelis Famosis case in 1603.[1] That case established two major

propositions in the prosecution of defamatory remarks:first, that libel against a public person is a
greater offense than one directed against an ordinary man, and second, that it is immaterial that
the libel be true.
Until republicanism caught fire in early America, the view from the top on libel was no less
dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of
criminal libel liability under the clear and present danger rule, to the other end of the spectrum
in defense of the constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and communication
technology, libel principles formulated at one time or another have waxed and waned through the
years in the constant ebb and flow of judicial review. At the very least, these principles have lost
much of their flavor, drowned and swamped as they have been by the ceaseless cacophony and
din of thought and discourse emanating from just about every source and direction, aided no less
by an increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has
been devalued by its utter commonality; and we agree, for its logical effect is to benumb thought
and sensibility on what may be considered as criminal illegitimate encroachments on the right of
persons to enjoy a good, honorable and reputable name. This may explain the imperceptible
demise of criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair
any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in "Francisco
Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996
that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing
and publishing certain articles claimed to be derogatory and offensive to private respondent
Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines
Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the
time the complaint was filed, petitioner Borjal was its President while Soliven was (and still is)
Publisher and Chairman of its Editorial Board. Among the regular writers of The Philippine Star is
Borjal who runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman,
business consultant and journalist by profession. In 1988 he served as a technical adviser of
Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on
Industrial Policy.
During the congressional hearings on the transport crisis sometime in September 1988
undertaken by the House Sub-Committee on Industrial Policy, those who attended agreed to
organize the First National Conference on Land Transportation (FNCLT) to be participated in by
the private sector in the transport industry and government agencies concerned in order to find

ways and means to solve the transportation crisis. More importantly, the objective of the FNCLT
was to draft an omnibus bill that would embody a long-term land transportation policy for
presentation to Congress. The conference which, according to private respondent, was estimated
to cost around P1,815,000.00 would be funded through solicitations from various sponsors such
as government agencies, private organizations, transport firms, and individual delegates or
participants.[2]
On 28 February 1989, at the organizational meeting of the FNCLT, private respondent
Francisco Wenceslao was elected Executive Director. As such, he wrote numerous solicitation
letters to the business community for the support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal was published on
different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities
of an "organizer of a conference" without naming or identifying private respondent. Neither did it
refer to the FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the
articles of petitioner together with the dates they were published [3] 31 May 1989
Another self-proclaimed hero of the EDSA Revolution goes around organizing seminars and
conferences for a huge fee. This is a simple ploy coated in jazzy letterheads and slick prose. The
hero has the gall to solicit fees from anybody with bucks to spare. Recently, in his usual
straightforward style, Transportation Secretary Rainerio Ray Reyes, asked that his name be
stricken off from the letterheads the hero has been using to implement one of his pet
seminars. Reyes said: I would like to reiterate my request that you delete my name. Note that Ray
Reyes is an honest man who would confront anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized use of the names of
President Aquino and Secretary Ray Reyes. The conference program being circulated claims that
President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and
Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the
conference should be unmasked as a moneymaking gimmick.
19 June 1989
x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry
and to almost all government agencies. And the letterheads carried the names of Reyes and
Periquet.Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out
from Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to put the
fund solicitation letter in the waste basket. Now, if the 3,000 persons and agencies approached by

the organizer shelled out 1,000 each, thats easily P3 million to a project that seems so
unsophisticated. But note that one garment company gave P100,000, after which the Garments
Regulatory Board headed by Trade and Industry Undersecretary Gloria Macapagal-Arroyo was
approached by the organizer to expedite the garment license application of the P100,000 donor.
21 June 1989
A 'conference organizer' associated with shady deals seems to have a lot of trash tucked inside his
closet. The Jaywalker continues to receive information about the mans dubious deals. His notoriety,
according to reliable sources, has reached the Premier Guest House where his name is spoken like
dung.
xxx
The first information says that the 'organizer' tried to mulct half a million pesos from a garment
producer and exporter who was being investigated for violation of the rules of the Garments,
Textile, Embroidery and Apparel Board. The 'organizer' told the garment exporter that the case
could be fixed for a sum of P500,000.00. The organizer got the shock of his life when the exporter
told him: 'If I have that amount, I will hire the best lawyers, not you.' The organizer left in a huff, his
thick face very pale.
xxx
Friends in government and the private sector have promised the Jaywalker more 'dope' on the
'organizer.' It seems that he was not only indiscreet; he even failed to cover his tracks. You will be
hearing more of the 'organizers' exploits from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to have been spreading his wings too
far. A congressional source has informed the Jaywalker that the schemer once worked for a
congressman from the North as some sort of a consultant on economic affairs. The first thing the
organizer did was to initiate hearings and round-the-table discussions with people from the
business, export and -- his favorite -- the garments sector.
xxx
The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing but the good
of these sectors in mind. It was only later that he realized that the 'consultant' was acting with a
burst of energy 'in aid of extortion.' The 'consultant' was fired.
xxx

There seems to be no end to what a man could do to pursue his dubious ways. He has tried to
operate under a guise of a well-meaning reformist. He has intellectual pretensions - and sometimes
he succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some
naive newspaper people. He has been turning out a lot of funny-looking advice on investments,
export growth, and the like.
xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influencepeddlers from entering the premises of his department. But the Cabinet man might not get his
wish. There is one 'organizer' who, even if physically banned, can still concoct ways of doing his
thing. Without a tinge of remorse, the 'organizer' could fill up his letterheads with names of Cabinet
members, congressmen, and reputable people from the private sector to shore up his shady
reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance was very poor and the
few who participated in the affair were mostly leaders of jeepney drivers groups. None of the
government officials involved in regulating public transportation was there. The big names in the
industry also did not participate. With such a poor attendance, one wonders why the conference
organizers went ahead with the affair and tried so hard to convince 3,000 companies and
individuals to contribute to the affair.
xxx
The conference was doomed from the start. It was bound to fail. The personalities who count in the
field of transportation refused to attend the affair or withdrew their support after finding out the
background of the organizer of the conference. How could a conference on transportation succeed
without the participation of the big names in the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that
he was the organizer alluded to in petitioner Borjals columns. [4] In a subsequent letter to The
Philippine Star, private respondent refuted the matters contained in petitioner Borjals columns
and openly challenged him in this manner To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to
relinquish this position in case it is found that I have misappropriated even one peso of FNCLT
money. On the other hand, if I can prove that Borjal has used his column as a hammer to get
clients for his PR Firm, AA Borjal Associates, he should resign from the STAR and never again
write a column. Is it a deal?[5]

Thereafter, private respondent filed a complaint with the National Press Club (NPC) against
petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a
form of leverage to obtain contracts for his public relations firm, AA Borjal Associates. [6] In turn,
petitioner Borjal published a rejoinder to the challenge of private respondent not only to protect
his name and honor but also to refute the claim that he was using his column for character
assassination.[7]
Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal
case for libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated
7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for
insufficiency of evidence. The dismissal was sustained by the Department of Justice and later by
the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil action for
damages based on libel subject of the instant case.[8] In their answer, petitioners interposed
compulsory counterclaims for actual, moral and exemplary damages, plus attorneys fees and
costs. After due consideration, the trial court decided in favor of private respondent Wenceslao
and ordered petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for
actual and compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00
for exemplary damages, P200,000.00 for attorneys fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the
monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00
attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court
ruled inter alia that private respondent was sufficiently identifiable, although not named, in the
questioned articles; that private respondent was in fact defamed by petitioner Borjal by
describing him variously as a "self-proclaimed hero," "a conference organizer associated with
shady deals who has a lot of trash tucked inside his closet," "thick face," and "a person with
dubious ways;" that petitioners claim of privilege communication was unavailing since the
privileged character of the articles was lost by their publication in a newspaper of general
circulation; that petitioner could have performed his office as a newspaperman without
necessarily transgressing the rights of Wenceslao by calling the attention of the government
offices concerned to examine the authority by which Wenceslao acted, warning the public against
contributing to a conference that, according to his perception, lacked the univocal indorsement of
the responsible government officials, or simply informing the public of the letters Wenceslao
wrote and the favors he requested or demanded; and, that when he imputed dishonesty,
falsehood and misrepresentation, shamelessness and intellectual pretentions to Wenceslao,
petitioner Borjal crossed the thin but clear line that separated fair comment from actionable
defamation.
Private respondent manifested his desire to appeal that portion of the appellate courts
decision which reduced the amount of damages awarded him by filing with this Court a Petition

for Extension of Time to File Petition and a Motion for Suspension of Time to File Petition.
[9]

However, in a Resolution dated 27 May 1996, the Second Division denied both motions: the

first, for being premature, and the second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred the present case
to the Second Division, there was no longer any case thereat with which to consolidate this case
since G.R. No. 124396 had already been disposed of by the Second Division almost six (6)
months earlier.
On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied
the motion in its Resolution of 12 September 1996. Hence the instant petition for review. The
petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent
Wenceslao was sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing
to accord serious consideration to the findings of the Department of Justice and the Office of the
President that private respondent Wenceslao was not sufficiently identified in the questioned
articles, this notwithstanding that the degree of proof required in a preliminary investigation is
merely prima facie evidence which is significantly less than the preponderance of evidence
required in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly
privileged communication; (d) in refusing to apply the "public official doctrine" laid down in New
York Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged character
because of their publication in a newspaper of general circulation; (f) in ruling that private
respondent has a valid cause of action for libel against petitioners although he failed to prove
actual malice on their part, and that the prosecutors of the City of Manila, the Department of
Justice, and eventually, the Office of the President, had already resolved that there was no
sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should
be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for
the reversal of the appellate courts ruling, the dismissal of the complaint against them for lack of
merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is essential that the
victim be identifiable although it is not necessary that he be named. It is also not sufficient that
the offended party recognized himself as the person attacked or defamed, but it must be shown
that at least a third person could identify him as the object of the libelous publication.
[10]

Regrettably, these requisites have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's column writings

sufficiently identified Wenceslao as the "conference organizer." It cited the First National
Conference on Land Transportation, the letterheads used listing different telephone numbers, the
donation of P100,000.00 from Juliano Lim and the reference to the "organizer of the conference" the very same appellation employed in all the column items - as having sufficiently established
the identity of private respondent Wenceslao for those who knew about the FNCLT who were
present at its inception, and who had pledged their assistance to it.

We hold otherwise. These conclusions are at variance with the evidence at hand. The
questioned articles written by Borjal do not identify private respondent Wenceslao as the
organizer of the conference.The first of the Jaywalker articles which appeared in the 31 May 1989
issue of The Philippine Star yielded nothing to indicate that private respondent was the person
referred to therein. Surely, as observed by petitioners, there were millions of "heroes" of the EDSA
Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and
conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the
"so-called First National Conference on Land Transportation whose principal organizers are not
specified" (italics supplied).[11] Neither did the FNCLT letterheads [12]disclose the identity of the
conference organizer since these contained only an enumeration of names where private
respondent Francisco Wenceslao was described as Executive Director and Spokesman and not as
a conference organizer.[13] The printout[14] and tentative program[15] of the conference were devoid of
any indication of Wenceslao as organizer. The printout which contained an article entitled "Who
Organized the NCLT?" did not even mention private respondent's name, while the tentative
program only denominated private respondent as "Vice Chairman and Executive Director," and
not as organizer.
No less than private respondent himself admitted that the FNCLT had several organizers and
that he was only a part of the organization, thus I would like to clarify for the record that I was only a part of the organization. I was invited then
because I was the head of the technical panel of the House of Representatives Sub-Committee on
Industrial Policy that took care of congressional hearings. [16]
Significantly, private respondent himself entertained doubt that he was the person spoken of
in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was
the one referred to in the subject articles.[17] His letter to the editor published in the 4 June 1989
issue of The Philippine Star even showed private respondent Wenceslao's uncertainty Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National
Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31
column x x x[18]
Identification is grossly inadequate when even the alleged offended party is himself unsure
that he was the object of the verbal attack. It is well to note that the revelation of the identity of
the person alluded to came not from petitioner Borjal but from private respondent himself when
he supplied the information through his 4 June 1989 letter to the editor. Had private respondent
not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public
would have remained in blissful ignorance of his identity. It is therefore clear that on the element
of identifiability alone the case falls.

The above disquisitions notwithstanding, and on the assumption arguendo that private
respondent has been sufficiently identified as the subject of Borjal's disputed comments, we now
proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary question of
whether the disputed articles constitute privileged communications as to exempt the author from
liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition that his
articles are privileged in character under the provisions of Art. 354 of The Revised Penal
Code which state Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:
1) A private communication made by any person to another in the performance of any legal,
moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall under any of the
exceptions

described

in

the

above-quoted

article

since

these

were

neither

"private

communications" nor "fair and true report x x x without any comments or remarks." But this is
incorrect.
A

privileged

communication

may

be

either

absolutely

privileged

or

qualifiedly

privileged. Absolutely privileged communications are those which are not actionable even if the
author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution
which exempts a member of Congress from liability for any speech or debate in the Congress or in
any Committee thereof. Upon the other hand, qualifiedly privileged communications containing
defamatory imputations are not actionable unless found to have been made without good
intention or justifiable motive. To this genre belong "private communications" and "fair and true
report without any comments or remarks."
Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art. 354
of The Revised Penal Code for, as correctly observed by the appellate court, they are
neither private

communications nor fair

and

true

report

without

any

comments

or

remarks. However this does not necessarily mean that they are not privileged. To be sure, the
enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since

fair commentaries on matters of public interest are likewise privileged. The rule on privileged
communications had its genesis not in the nation's penal code but in the Bill of Rights of the
Constitution guaranteeing freedom of speech and of the press. [19] As early as 1918, in United
States v. Caete,[20] this Court ruled that publications which are privileged for reasons of public
policy are protected by the constitutional guaranty of freedom of speech. This constitutional right
cannot be abolished by the mere failure of the legislature to give it express recognition in the
statute punishing libels.
The concept of privileged communications is implicit in the freedom of the press. As held
in Elizalde v. Gutierrez[21] and reiterated in Santos v. Court of Appeals[22] To be more specific, no culpability could be imputed to petitioners for the alleged offending
publication without doing violence to the concept of privileged communications implicit in the
freedom of the press. As was so well put by Justice Malcolm in Bustos: Public policy, the welfare
of society, and the orderly administration of government have demanded protection of public
opinion. The inevitable and incontestable result has been the development and adoption of the
doctrine of privilege.
The doctrine formulated in these two (2) cases resonates the rule that privileged
communications must, sui generis, be protective of public opinion. This closely adheres to the
democratic theory of free speech as essential to collective self-determination and eschews the
strictly libertarian view that it is protective solely of self- expression which, in the words of Yale
Sterling Professor Owen Fiss,[23] makes its appeal to the individualistic ethos that so dominates
our popular and political culture. It is therefore clear that the restrictive interpretation vested by
the Court of Appeals on the penal provision exempting from liability only private communications
and fair and true report without comments or remarks defeats, rather than promotes, the
objective of the rule on privileged communications, sadly contriving as it does, to suppress the
healthy effloresence of public debate and opinion as shining linchpins of truly democratic
societies.
To reiterate, fair commentaries on matters of public interest are privileged and constitute a
valid defense in an action for libel or slander. The doctrine of fair comment means that while in
general every discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is directed against a public person in
his public capacity, it is not necessarily actionable. In order that such discreditable imputation to
a public official may be actionable, it must either be a false allegation of fact or a comment based
on a false supposition. If the comment is an expression of opinion, based on established facts,
then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be
inferred from the facts.[24]

There is no denying that the questioned articles dealt with matters of public interest. In his
testimony, private respondent spelled out the objectives of the conference thus x x x x The principal conference objective is to come up with a draft of an Omnibus Bill that will
embody a long term land transportation policy for presentation to Congress in its next regular
session in July.Since last January, the National Conference on Land Transportation (NCLT), the
conference secretariat, has been enlisting support from all sectors to ensure the success of the
project.[25]
Private respondent likewise testified that the FNCLT was raising funds through solicitation
from the public Q: Now, in this first letter, you have attached a budget and it says here that in this seminar of
the First National Conference on Land Transportation, you will need around One million
eight hundred fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or organizations as
well as individual transport firms and from individual delegates/participants.[26]
The declared objective of the conference, the composition of its members and participants,
and the manner by which it was intended to be funded no doubt lend to its activities as being
genuinely imbued with public interest. An organization such as the FNCLT aiming to reinvent
and reshape the transportation laws of the country and seeking to source its funds for the
project from the public at large cannot dissociate itself from the public character of its
mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public of
the legitimacy of the purpose of the activity and of the qualifications and integrity of the
personalities behind it.
This in effect is the strong message in New York Times v. Sullivan [27] which the appellate court
failed to consider or, for that matter, to heed. It insisted that private respondent was not, properly
speaking, a "public offical" nor a "public figure," which is why the defamatory imputations
against him had nothing to do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the
height of the bloody rioting in the American South over racial segregation. The then City
Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid
political advertisement espousing racial equality and describing police atrocities committed
against students inside a college campus. As commissioner having charge over police actions
Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage;

consequently, he sued New York Times on the basis of what he believed were libelous utterances
against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against
Sullivan holding that honest criticisms on the conduct of public officials and public figures are
insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public
official or public figure from recovering damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with actual malice, i.e., with knowledge
that it was false or with reckless disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require critics of official conduct
to guarantee the truth of all their factual assertions on pain of libel judgments would lead to selfcensorship, since would-be critics would be deterred from voicing out their criticisms even if such
were believed to be true, or were in fact true, because of doubt whether it could be proved or
because of fear of the expense of having to prove it.[28]
In the present case, we deem private respondent a public figure within the purview of
the New York Times ruling. At any rate, we have also defined "public figure" in Ayers Production
Pty., Ltd. v. Capulong[29] as x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession
or calling which gives the public a legitimate interest in his doings, his affairs and his character,
has become a public personage. He is, in other words, a celebrity. Obviously, to be included in
this category are those who have achieved some degree of reputation by appearing before the
public, as in the case of an actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage
than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a
position where the public attention is focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was promoted as a joint
project of the government and the private sector, and organized by top government officials and
prominent businessmen. For this reason, it attracted media mileage and drew public attention
not only to the conference itself but to the personalities behind as well. As its Executive Director
and spokesman, private respondent consequently assumed the status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite the position he
occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he
could not validly be the subject of a public comment even if he was not a public official or at least
a public figure, for he could be, as long as he was involved in a public issue. 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 sense the individual did not voluntarily choose to

become involved. The publics primary interest is in the event; the public focus is on the conduct
of the participant and the content, effect and significance of the conduct, not the participant's
prior anonymity or notoriety.[30]
There is no denying that the questioned articles dealt with matters of public interest. A
reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these
necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive
Director of the FNCLT. The nature and functions of his position which included solicitation of
funds, dissemination of information about the FNCLT in order to generate interest in the
conference, and the management and coordination of the various activities of the conference
demanded from him utmost honesty, integrity and competence. These are matters about which
the public has the right to be informed, taking into account the very public character of the
conference itself.
Concededly, petitioner Borjal may have gone overboard in the language employed describing
the "organizer of the conference." One is tempted to wonder if it was by some mischievous gambit
that he would also dare test the limits of the "wild blue yonder" of free speech in this
jurisdiction. But no matter how intemperate or deprecatory the utterances appear to be, the
privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice
Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust
and wide open, and that it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on the government and public officials. [31]
The Court of Appeals concluded that since malice is always presumed in the publication of
defamatory matters in the absence of proof to the contrary, the question of privilege is
immaterial.
We reject this postulate. While, generally, malice can be presumed from defamatory words,
the privileged character of a communication destroys the presumption of malice. [32] The onus of
proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring
home to the defendant, petitioner Borjal herein, the existence of malice as the true motive of his
conduct.[33]
Malice connotes ill will or spite and speaks not in response to duty but merely to injure the
reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm.
[34]

Malice is bad faith or bad motive.[35] It is the essence of the crime of libel.[36]
In the milieu obtaining, can it be reasonably inferred that in writing and publishing the

articles in question petitioner Borjal acted with malice?

Primarily, private respondent failed to substantiate by preponderant evidence that petitioner
was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were
written and published without good motives or justifiable ends. On the other hand, we find

petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his
responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be
a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a
good name and reputation, but we do not consider that petitioner Borjal has violated that right in
this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown to have
been written or published with the knowledge that they are false or in reckless disregard of
whether they are false or not.[37] "Reckless disregard of what is false or not" means that the
defendant entertains serious doubt as to the truth of the publication, [38] or that he possesses a
high degree of awareness of their probable falsity.[39]
The articles subject of the instant case can hardly be said to have been written with
knowledge that these are false or in reckless disregard of what is false or not. This is not to say
however that the very serious allegations of petitioner Borjal assumed by private respondent to be
directed against him are true. But we nevertheless find these at least to have been based on
reasonable grounds formed after the columnist conducted several personal interviews and after
considering the varied documentary evidence provided him by his sources. Thus, the following
are supported by documentary evidence: (a) that private respondent requested Gloria MacapagalArroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the processing
and release of the import approval and certificate of availability of a garment firm in exchange for
the monetary contribution of Juliano Lim, which necessitated a reply from the office of Gloria
Macapagal-Arroyo explaining the procedure of the GTEB in processing applications and clarifying
that all applicants were treated equally;[40] (b) that Antonio Periquet was designated Chairman of
the Executive Committee of the FNCLT notwithstanding that he had previously declined the offer;
[41]

and, (c) that despite the fact that then President Aquino and her Secretary of Transportation

Rainerio Reyes declined the invitation to be guest speakers in the conference, their names were
still included in the printout of the FNCLT.[42] Added to these are the admissions of private
respondent that: (a) he assisted Juliano Lim in his application for a quota allocation with the
GTEB in exchange for monetary contributions to the FNCLT; [43] (b) he included the name of then
Secretary of Transportation Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; [44] and, (c)
he used different letterheads and telephone numbers.[45]
Even assuming that the contents of the articles are false, mere error, inaccuracy or even
falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme
of truly free expression and debate. Consistent with good faith and reasonable care, the press
should not be held to account, to a point of suppression, for honest mistakes or imperfections in
the choice of language. There must be some room for misstatement of fact as well as for
misjudgment. Only by giving them much leeway and tolerance can they courageously and
effectively function as critical agencies in our democracy. [46] In Bulletin Publishing Corp. v.
Noel[47] we held -

A newspaper especially one national in reach and coverage, should be free to report on events
and developments in which the public has a legitimate interest with minimum fear of being
hauled to court by one group or another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of morality and civility prevailing within the
general community.
To avoid the self-censorship that would necessarily accompany strict liability for erroneous
statements, rules governing liability for injury to reputation are required to allow an adequate
margin of error by protecting some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or public figure may not be
imposed in the absence of proof of "actual malice" on the part of the person making the libelous
statement.
At any rate, it may be salutary for private respondent to ponder upon the advice of Mr.
Justice Malcolm expressed in U.S. v. Bustos,[48] that "the interest of society and the maintenance
of good government demand a full discussion of public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust
accusation; the wound may be assuaged by the balm of a clear conscience. A public official must
not be too thin-skinned with reference to comments upon his official acts.
The foregoing disposition renders the second and seventh assigned errors moot and
academic, hence, we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners of the high
ethical standards attached to and demanded by their noble profession. The danger of an
unbridled irrational exercise of the right of free speech and press, that is, in utter 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. Therefore, to recognize that
there can be no absolute "unrestraint" in speech is to truly comprehend the quintessence of
freedom in the marketplace of social thought and action, genuine freedom being that which is
limned by the freedom of others. If there is freedom of the press, ought there not also be
freedom from the press? It is in this sense that self-regulation as distinguished from selfcensorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x x x a
lively sense of responsibility, a free press may readily become a powerful instrument of
injustice."[49]
Lest we be misconstrued, this is not to diminish nor constrict that space in which expression
freely flourishes and operates. For we have always strongly maintained, as we do now, that
freedom of expression is man's birthright - constitutionally protected and guaranteed, and that it
has become the singular role of the press to act as its "defensor fidei" in a democratic society

such as ours. But it is also worth keeping in mind that 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.[50]
On petitioners counterclaim for damages, we find the evidence too meager to sustain any
award. Indeed, private respondent cannot be said to have instituted the present suit in abuse of
the legal processes and with hostility to the press; or that he acted maliciously, wantonly,
oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling the
latter to damages. On the contrary, private respondent acted within his rights to protect his
honor from what he perceived to be malicious imputations against him. Proof and motive that the
institution of the action was prompted by a sinister design to vex and humiliate a person must be
clearly and preponderantly established to entitle the victim to damages. The law could not have
meant to impose a penalty on the right to litigate, nor should counsels fees be awarded every
time a party wins a suit.[51]
For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] Every man has a right to discuss matters of public interest. A clergyman with his flock, an
admiral with his fleet, a general with his army, a judge with his jury, we are, all of us, the subject
of public discussion. The view of our court has been thus stated: It is only in despotisms that one
must speak sub rosa, or in whispers, with bated breath, around the corner, or in the dark on
a subject touching the common welfare. It is the brightest jewel in the crown of the law to speak
and maintain the golden mean between defamation, on one hand, and a healthy and robust right
of free public discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March
1996 and its Resolution of 12 September 1996 denying reconsideration are REVERSED and SET
ASIDE,

and

the

complaint

for

damages

against

petitioners

is

DISMISSED. Petitioners

counterclaim for damages is likewise DISMISSED for lack of merit. No costs.

SO ORDERED.