{"id":6386,"date":"2023-03-17T05:22:17","date_gmt":"2023-03-17T05:22:17","guid":{"rendered":"https:\/\/cebujournalism.ph\/?p=6386"},"modified":"2025-11-12T08:41:44","modified_gmt":"2025-11-12T08:41:44","slug":"tomas-osmena-v-bobby-nalzaro","status":"publish","type":"post","link":"https:\/\/cebujournalism.ph\/?p=6386","title":{"rendered":"Surviving libel, other complaints"},"content":{"rendered":"\n

Surviving libel, other complaints<\/h1>\n\n\n\n
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How Bobby Nalzaro and his lawyers beat off Tomas Osmena\u2019s libel complaints

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Not many people offended by what\u2019s published about them go to court. They resort to their right of reply or use the pulpit of their high office. Those who sue the writer, commentator or media outlet must be exceedingly aggrieved and want to strike back. Or they can\u2019t accept criticism and try to muddle the issue. Or they\u2019re just being mean: one or two may even file multiple and successive suits, not giving up when they lose. From selected libel lawsuits the Osmenas, father Tomas and son Miguel, had filed against the late Cebu broadcaster-newspaper columnist Bobby Nalzaro (1963-2022), one may learn how to survive attacks in court.<\/p>\n<\/blockquote>\n\n\n

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1. Both DOJ and RTC found \u2018no probable cause\u2019 in Tomas libel complaint vs. Nalzaro<\/h2>\n\n\n\n


PACHICO A. SEARES<\/strong>
(First published Aug. 21, 2018. Media\u2019s Public, SunStar Cebu)<\/em><\/p>\n\n\n\n

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C<\/span>EBU Regional Trial Court Judge Gilbert P. Moises\u2019s order dismissing the libel complaint of Cebu City Mayor Tomas Osmea against newspaper columnist\/broadcaster Bobby Nalzaro, didn\u2019t merely \u201cfollow\u201d the ruling of the Department of Justice (DOJ). It didn\u2019t dismiss the complaint just because DOJ wanted it recalled.<\/p>\n\n\n\n

The court made its own finding under the principle that once the information is filed, the court \u201cis in complete control\u201d of the case.<\/p>\n\n\n\n

In an eight-page order released Friday (Aug. 26), Judge Moises ruled that Nalzaro\u2019s column of Oct. 25, 2014 was (1) not defamatory and (2) bereft of malice. Two of four essential elements of libel were missing.<\/p>\n\n\n\n

In effect, Nalzaro was cleared by DOJ in its Sept. 23, 2016 resolution that reversed the local prosecutor\u2019s ruling. The columnist was also cleared by the RTC judge in its Aug. 20, 2018 order. And both did not find probable cause.<\/p>\n\n\n\n

The issues<\/strong><\/p>\n\n\n\n

The court had two issues before the court: (1) whether Nalzaro must be arraigned, which Osme\u00f1a\u2019s lawyer as private prosecutor sought; and (2) whether the information should be withdrawn, which DOJ through the city prosecutor asked.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

A public figure<\/strong><\/p>\n\n\n\n

What can journalists, journ students, and media consumers learn from the Nalzaro case? The notably interesting points:<\/p>\n\n\n\n

\u2022 The mayor argued that because at the time he was defamed he wasn\u2019t 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 \u201cpublic figure\u201d who like a public official or \u201cpublic person\u201d was subject to media scrutiny on matters of public interest. Nalzaro, himself a public figure, can similarly be criticized.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

Mistakes, malice<\/strong><\/p>\n\n\n\n

\u2022 Judge Moises said \u201cfabricated charges\u201d that Nalzaro used in his column \u201cmay not be the accurate words\u201d but \u201cnot entirely without basis.\u201d \u201cKnown to be a hard-punching columnist,\u201d Nalzaro must have used the \u201cstrong words\u201d to \u201cperk up interest of his readers,\u201d the judge said. \u201cDry facts by themselves are hardly stirring,\u201d 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.<\/p>\n\n\n\n

Supreme Court decisions allow \u201ccolor and innuendo\u201d and even mistakes from the journalist. \u201cEven assuming contents are false, mere errors or inaccuracy or even falsity does not prove actual malice,\u201d one such ruling said.<\/p>\n\n\n\n

Proof required<\/strong><\/p>\n\n\n\n

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\u2019s column.<\/p>\n\n\n\n

To prove that Gwen was the one referred to as \u201cDoleng,\u201d she presented Lastimosa\u2019s 14 past columns in \u201cThe Freeman.\u201d In establishing identity (another essential element of libel, along with publication), Gwen\u2019s 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.)<\/p>\n\n\n\n

That didn\u2019t happen in Nalzaro\u2019s case, in which identity was not disputed and absence of probable cause was apparent from the pleadings alone.<\/p>\n\n\n\n

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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2. What C.A. ruling tells us: complainant Tomas Osmena\u2019s role is limited to civil liability as he\u2019s not the real party-in-interest.<\/h2>\n\n\n\n


PACHICO A. SEARES<\/strong>
(First published Dec. 6, 2021, Media\u2019s Public, SunStar Cebu)<\/em><\/p>\n\n\n\n

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The allegedly offensive words: \u201cTomas filed several administrative cases against (OIC city treasurer Diwa Cuevas). Some of those cases were based on fabricated charges.\u201d Lesson to journalists: A lawsuit for libel can be set off by just one word or a few words.<\/p>\n<\/blockquote>\n\n\n\n

Q<\/span>UICKLY, THE SITUATION<\/strong>. Former mayor Tomas Osme\u00f1a filed a criminal complaint for libel with the Cebu City prosecutor against broadcaster-newspaper columnist Bobby Nalzaro over a column item in 2015. The prosecutor found “probable cause” and filed the information for libel with the Regional Trial Court against Nalzaro. Nalzaro appealed the prosecutor’s finding to the secretary of justice for review.<\/p>\n\n\n\n

One judge — out of three who handled the case in succession, as two judges inhibited themselves — issued a warrant of arrest after finding “probable cause.” Nalzaro posted bail.<\/p>\n\n\n\n

In its review, the secretary of justice found no probable cause, ruling in favor of Nalzaro and ordering the prosecutor to move for the withdrawal of the case. Which the prosecutor did.<\/p>\n\n\n\n

The court, not just relying on the DOJ ruling, went over the evidence and, ruling out “probable cause,” dismissed the case.<\/p>\n\n\n\n

Osme\u00f1a went to the Court of Appeals (CA), alleging in a certiorari petition that the RTC “gravely abused its discretion” amounting to “abuse or excess of jurisdiction.”<\/p>\n\n\n\n

The CA threw out the petition. Its order was promulgated last September 20 but publicized only last week, or some six years after the “offensive” column was published and Osme\u00f1a’s complaint filed.<\/p>\n\n\n\n

2 PROBABLY CRIMINAL WORDS<\/strong>. In Nalzaro’s October 25, 2015 column in SunStar Cebu, Tomas Osme\u00f1a was not even the main topic. As indicated in the column headline, it was Mandaue City Mayor Jonas Cortes. And what Osme\u00f1a found offensive, which the Cebu City prosecutor found probably a crime — in a five sentence, 50-word item about Tomas — were just two words: “fabricated charges.”<\/p>\n\n\n\n

A bit of context: Two years before the column was written, Tomas lost to Michael Rama in the city’s 2013 election for mayor, the first clash between political master and mentor and the first time Mike fought for the city’s top post on his own.<\/p>\n\n\n\n

“Tomas is moving to sabotage Mike’s administration,” the column said. “Unfortunately because of his obsession to get back at Mike, many innocent people got caught in the political cross-fire. An example is OIC city treasurer Diwa Cuevas. Tomas filed several administrative cases against her. Some of those cases were based on fabricated charges.”<\/p>\n\n\n\n

LESSON TO JOURNALISTS<\/strong>. The immediate lesson to news media writers and editors is that a libel complaint can be triggered by just one word or a few words. It would not need a torrent of scathing words for a public official to go to court. Editors and lawyers — such as J. P. Garcia and Associates, which handles SunStar libel cases — have been saying the same thing.<\/p>\n\n\n\n

During the 2019 election campaign, a block-time radio program named a mayor “kawatan” (thief) scores of times in a jingle set to the tune of Rossini’s William Tell overture, repeatedly played, followed by specific identification as to who the thief was. And yet that mayor didn’t sue. In contrast, Nalzaro’S 2015 column used two words that were not even defamatory per se and Tomas sued. Last week, in the course of a long route starting in the prosecutor’s office, the case reached a milestone: the CA affirmed the RTC ruling and dismissed Osme\u00f1a’s petition.<\/p>\n\n\n\n

LESSONS TO COMPLAINANTS<\/strong>. There are three lessons for complainants too from the CA decision:<\/p>\n\n\n\n

[1] Limit on private complainant<\/strong>: The interest of a private complainant in the criminal case is limited to civil liability. Osme\u00f1a, who filed the petition in his capacity as private complainant, sued the Cebu Regional Trial Court Branch 18 in its public capacity and Nalzaro in his capacity as the accused. The “People of the Philippines” was included in Osme\u00f1a’s complaint but the office of the solicitor general (OSG) did not take part in the petition.<\/p>\n\n\n\n

The CA ruled that when a criminal case is dismissed, only the OSG may appeal.<\/p>\n\n\n\n

Tomas raised the case to the CA after the trial court [a] denied his motion to arraign Nalzaro, [b] dismissed the complaint of libel, and [c] declared that the city prosecutor had no more authority to file a motion for reconsideration of the RTC ruling. Osme\u00f1a wanted the trial court to proceed with the trial by arraigning Nalzaro, for which the former mayor asked CA to nullify the RTC’s orders rejecting Tomas’s two motions. His petition alleged that the RTC “gravely abused its discretion, which amounted to lack or excess of jurisdiction.”<\/p>\n\n\n\n

The CA ruling affirmed the basic principle that in a criminal case, the “People of the Philippines” is the real party-in-interest, the government prosecutor controls the handling of the case, and the private person’s interest is limited to its civil aspect. Osme\u00f1a’s role in the lawsuit vs Nalzaro was merely that of “a witness for the prosecution,” the CA ruling said. Only the OSG could question the motion of the prosecutor to withdraw the information and the decision of the RTC to dismiss the case.<\/p>\n\n\n\n

[2] Findings on probable cause.<\/strong><\/p>\n\n\n\n

Private complainants must discard the belief that the finding of “probable cause” by the city prosecutor will bar a contrary finding on “probable cause” by the court. And the first judge’s finding of “probable cause” to determine whether to issue or not to issue a warrant of arrest did not preclude the third judge, who conducted the trial, from deciding on its merits.<\/p>\n\n\n\n

Then acting Cebu City prosecutor Jesus Rodrigo Taga-an found “probable cause” and filed the information in court against Nalzaro. The case was raffled successively to RTC Branches 5 and 23, whose judges inhibited themselves because of relations with either or both Osme\u00f1a and the broadcaster, and finally to Branch 18. The third judge didn’t “recuse” himself and was the one who issued the rulings that Osme\u00f1a raised to the appellate court.<\/p>\n\n\n\n

Osme\u00f1a argued that the first judge already looked into and found probable cause when it decided to issue a warrant of arrest against Nalzaro, for which his media company SunStar posted bail. The finding of no-probable cause by a third judge in effect reversed the finding of a co-equal court, Tomas contended.<\/p>\n\n\n\n

The CA ruling said the prosecutor’s finding on “probable cause” was administrative while the judge’s finding of “probable cause” was judicial. The judge evaluated, as he must, the resolution of the prosecutor and its evidence.<\/p>\n\n\n\n

[3] Judge assesses independently.<\/strong><\/p>\n\n\n\n

When the first judge, finding probable cause, issued the warrant of arrest, he did so when there was no ruling of the secretary of justice yet. After the prosecutor moved to withdraw the information, presenting the DOJ ruling for Nalzaro, the trial court (then presided by another, the third, judge) was bound to assess it.<\/p>\n\n\n\n

While the DOJ finding was “persuasive,” it was not binding on the courts. The trial court would’ve committed “a reversible error or grave abuse” if it had not done so and, had the DOJ ruling been adverse to Nalzaro, just proceeded to continue with the arraignment and trial.<\/p>\n\n\n\n

THOSE LEGAL PRINCIPLES<\/strong> — on top of such basics as privileged communication, absence of malice, and Tomas Osme\u00f1a being a public figure must not be “onion-skinned” — should’ve been known by Osme\u00f1a’s lawyers as they are not new and are already part of jurisprudence. Yet they pushed on for their client, despite the known legal roadblocks.<\/p>\n\n\n\n

Fortunately for journalists who are sued, courts are mostly sympathetic to safeguards of free speech and free press.<\/p>\n\n\n\n

The complainant must also know the chances of his case but then, if the purpose is other than to win the litigation, such as afflicting the journalist and his media outlet, full speed ahead he goes. \"\"

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Bobby Nalzaro, flanked by lawyers Joan Baron (left) and Althea Vergara at the Cebu City branch 11, Sept. 25, 2020.<\/strong><\/em><\/p>\n\n\n\n


3. How Miguel Osmena, Tomas\u2019s son, revived two cyber-libel charges against Nalzaro: he filed new complaints<\/h2>\n\n\n\n



PACHICO A. SEARES<\/strong>
(First published Sept. 26, 2020, Explainer in SunStar Cebu)<\/em>

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T<\/span>HE SITUATION.<\/strong> Last Friday, September 25, Pablito G. Nalzaro, known in multiple media as Bobby Nalzaro, posted P80,000 bail on two cyber-libel complaints filed by the Cebu City Prosecutors Office with the Regional Trial Court (RTC).

The charges stemmed from the 2018 online publication of Nalzaro\u2019s two columns in SunStar alleging that Ramon Miguel Osmena, the only son of former city mayor Tomas Osmena, was involved in the illegal butane refilling business.

But had not the RTC earlier thrown out two cyber-libel charges against Nalzaro on the same subject and issue of the young Osmena allegedly being involved in the illegal sale of butane and the mayor allegedly meddling with the police in the arrest of suspected retailers?<\/p>\n\n\n\n

On December 6, 2019, RTC Branch 11 Judge Ramon Daomilas Jr. threw out two cyber-libel complaints covering the same subject and issue. Identical material cannot be the subject of two separate libels, Daomilas\u2019s order said, quoting the Supreme Court.<\/p>\n\n\n\n

Related article: Seares: 2 libel charges vs. Nalzaro dumped. Judge sees double jeopardy before trial (https:\/\/www.sunstar.com.ph\/article\/1836214\/Cebu\/Media&<\/a>)<\/p>\n\n\n\n

To keep track: Nalzaro has been charged by Ramon Miguel with six criminal cases, all going through the route of the city prosecutor\u2019s office.<\/p>\n\n\n\n

[1] Two complaints for libel under the Revised Penal Code, basing on Nalzaro\u2019s print columns.<\/p>\n\n\n\n

[2] Two complaints for cyber-libel under the Cybercrime Prevention Act (Republic Act No. 10175), basing on the same columns but as published online.<\/p>\n\n\n\n

[3] Two complaints for cyber-libel under the cyber-crime law but this time basing on two other Nalzaro columns published a month later.<\/p>\n\n\n\n

Nalzaro separately posted bail: first, on the four cases last year; then on the two cases last Friday.<\/p>\n\n\n\n

The first two cyber-libel complaints duplicated the charges under the Revised Penal Code (RPC). Judge Daomilas dismissed the cyber-libels, rejecting the potential double jeopardy for the same alleged criminal acts.<\/p>\n\n\n\n

That would\u2019ve left just two cases under the RPC based on the print columns, in RTC Branch 5 with Judge Ricky Jones Macabaya. But then Ramon Miguel found a way: his lawyer filed two other cases, this time using two other Nalzaro columns published in October.<\/p>\n\n\n\n

\u2018OFFENSIVE\u2019 COLUMNS. <\/strong><\/strong>The columns on which the first four charges were based: \u201cProjecting as pro-poor\u201d (September 5, 2018) and \u201cMikakak man diay\u201d (September 12, 2018).<\/p>\n\n\n\n

Ramon Miguel wanted Nalzaro prosecuted for the same two columns under both the RPC and the Cyber Crime Law. No way, Judge Daomilas said, citing the ruling in Jose Jesus Disini, et. al vs. Secretary of Justice (GR #203335). That would be punishing the columnist for the same writings.<\/p>\n\n\n\n

The columns under which the additional two charges were based: \u201cWhere is the mayor?\u201d (October 10, 2018) and \u201c#libel pa more\u201d (October 14, 2018), published about a month after the first two \u201coffensive\u201d columns.<\/p>\n\n\n\n

On the last two charges, for which Nalzaro posted bail last Friday, Ramon Miguel chose the cyber-law over the penal code.<\/p>\n\n\n\n

WHY CYBER-LIBEL, WHY ONLINE. <\/strong><\/strong>Choosing the cyber-crime law over the penal code has become a matter of course for most complainants, who want the \u201coffender\u201d locked up for a longer time. RA 10175 imposes a penalty one degree higher than the RPC penalty: up to six years under the penal code but up to 12 years under the cybercrime law.<\/p>\n\n\n\n

A no-brainer, given the Disini ruling against inevitable double jeopardy. As the complainant can use either the RPC or RA No. 10175 and not both, he inevitably uses the cybercrime law.<\/p>\n\n\n\n

Nalzaro is both a broadcaster and a print and online columnist (the columns in the paper are also run on the paper\u2019s website). What he writes in this column is also taken up in his radio broadcast.<\/p>\n\n\n\n

Complainants though prefer the print and online publication over broadcast material as basis for their charges: easier to produce the evidence of publication. Yet, the virulent media criticism or attack is done on the air, where the commentary is unfiltered by editors and can be more intense.<\/p>\n\n\n\n

The Supreme Court has taught the public — in a landmark decision (Cirse Francisco \u201cChoy\u201d Torralba vs. People of the Philippines, GR #153699, August 22, 2005) — how to authenticate a recording of a broadcast as evidence in libel. Apparently, few people aggrieved by broadcast commentaries have taken the high court\u2019s cue.<\/p>\n\n\n\n

Ramon Miguel, as most other libel complainants, didn\u2019t use the broadcast material against Nalzaro. And the young Osmena used the newspaper column only as support to the higher-penalty cyber-libel charge.<\/p>\n\n\n\n

DELAY IN FILING INFORMATION. <\/strong><\/strong>What may have puzzled some people keeping tab on Nalzaro\u2019s case was that the resolution of Prosecutor 1 Russel Busico (as approved by chief Prosecutor Liceria Lofranco-Rabillas) was signed on December 16, 2019, but the two information(s) were filed only last September 18, or some nine months after. Thus, it came as a surprise, setting off speculation as to where they came from.<\/p>\n\n\n\n

Busico\u2019s argument for filing the charges was published last year yet Ramon Miguel, Busico said, is a private person and not a public official or public figure and did not require to prove malice on Nalzaro\u2019s part. Even if Ramon Miguel were a public figure, Busico added, Nalzaro didn\u2019t present evidence that the young Osmena was involved in butane business.<\/p>\n\n\n\n

The commentaries, Nalzaro said in his published replies, were matters of public interest, dealt with an event and issue that people talked about, and were covered by protected speech and privileged communication.<\/p>\n\n\n\n

That would be the core issue in the court trials of the four counts of libel. \"\"


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Miguel Osmena. if considered a private person, had to prove actual malice.<\/em><\/strong><\/p>\n\n\n\n


4. Is Miguel Osmena a private person for the purpose of his lawsuit for libel against Nalzaro?<\/h2>\n\n\n\n


PACHICO A. SEARES<\/strong>
(First published Oct. 19, 2018, SunStar Cebu)<\/strong><\/em>

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\u201c…It is really unfair for a private citizen like me to be maligned with no basis whatsoever by a media personality like Nalzaro.\u201d — Miguel Osme\u00f1a<\/strong><\/p>\n<\/blockquote>\n\n\n\n

C<\/span>EBU City Mayor \u2018Tomas Osme\u00f1a used the same tack in a libel complaint against broadcaster-newspaper columnist Bobby Nalzaro. Regional Trial Court Judge Gilbert P. Moises , in a decision released Aug. 26, rejected it and, for that and other reasons, threw out the complaint.<\/p>\n\n\n\n

Tomas alleged in his complaint he was a private citizen when Nalzaro \u201cdefamed\u201d him since the mayor was then out of public office, after his defeat to Mike Rama in 2013.<\/p>\n\n\n\n

Now, the mayor\u2019s son claims the same status \u2013 he, Miguel, is a private person — in filing with the Cebu City prosecutors the other week two complaints for cyber libel against Nalzaro.<\/p>\n\n\n\n

The difference<\/strong><\/p>\n\n\n\n

Why is that important for Miguel\u2019s offense and Bobby\u2019s defense? If Miguel is deemed a private person, he enjoys more protection from the law. He enjoys the legal presumption that the remarks of Nalzaro in two separate columns in SunStar were malicious, with Bobby carrying the burden of proving absence of malice.<\/p>\n\n\n\n

In contrast, if Tomas\u2019s son is considered a public figure, Nalzaro\u2019s comment assumes the nature of a \u201cprivileged communication,\u201d which removes presumed malice and shifts the task of proving malice to complainant Miguel. Plainly, Bobby\u2019s right to free speech and free press is given more room and rein than Miguel\u2019s right to privacy and honor.<\/p>\n\n\n\n

Public person\/public figure<\/strong><\/p>\n\n\n\n

Miguel, not holding any position in government, is not a \u201cpublic person.\u201d But he can be \u201ca public figure.\u201d And both are on the same level in libel legal terrain.<\/p>\n\n\n\n

The Supreme Court, in Ayers Production vs. Capulong, said that a private person becomes a public figure when his \u201caccomplishments, mode of living or by adopting a profession or calling\u201d give the public a \u201clegitimate interest in his doings, his affairs and his character.\u201d In short, the SC said, \u201canyone who has arrived at a position where public attention is focused on him as a person.\u201d<\/p>\n\n\n\n

More like Luli<\/strong><\/p>\n\n\n\n

Would Miguel qualify that? In a way, he does. Being the mayor\u2019s only son who is widely known to administer Tomas\u2019s Facebook account, the young Osme\u00f1a gets attention. If he is involved, say, in a public brawl, he gets in the news. Miguel is newsworthy although not under day-to-day scrutiny to which his dad is exposed.<\/p>\n\n\n\n

Miguel in a way is also a public figure, though in a lesser scale than Baste Duterte, the president\u2019s son, who was a public figure even before he decided to run for Davao City vice mayor. Miguel is more like Luli Arroyo-Bernas, when her mom GMA was president. Though less exposed than Luli, Miguel has the capacity to stir media waters each time he throws a pebble or wades in.<\/p>\n\n\n\n

Public issue<\/strong><\/p>\n\n\n\n

But that might not matter anymore since Nalzaro can prove that what he commented on was a public issue.<\/p>\n\n\n\n

He alleges that the mayor \u201cintervened in the arrest of three butane-canister-refilling workers because they were employees of his businessman ally, who also happens to be his son\u2019s business partner.\u201d An allegation supported by the charges of grave misconduct, abuse of authority and obstruction of justice that the police filed against the mayor.<\/p>\n\n\n\n

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, 1999), that it \u201cdoes not necessarily mean he could not be the subject of a public comment.\u201d<\/p>\n\n\n\n

\u2018Primary interest\u2019<\/strong><\/p>\n\n\n\n

Taking the line of argument in the Borjal case, since the mayor\u2019s alleged meddling was \u201ca subject of public or general interest, it cannot suddenly become less so\u201d just because it also involved a private person.<\/p>\n\n\n\n

\u201cThe public\u2019s primary interest is in the event. The public\u2019s focus is on the conduct of the participant.\u201d Applied to Miguel\u2019s complaint, the main thing, which was the subject of Nalzaro\u2019s commentary, was his dad\u2019s alleged intervention.<\/p>\n\n\n\n

Private person Miguel may have been dragged to a public event and issue, which in effect caught him in its web. Let\u2019s see how the prosecutors and the courts will see it though. \"\"<\/p>\n\n\n\n


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5. Would Tomas Osmena and son Miguel be deemed public figures under C.A. standard in cyber-libel ruling vs.Rappler journalists?<\/h2>\n\n\n\n



PACHICO A. SEARES<\/strong>
(First published Oct. 12, 2022, Media\u2019s Public, SunStar Cebu)<\/em>

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The Supreme Court apparently hasn\u2019t given a clear-cut definition that satisfies both parties in the Rappler case. And there\u2019s still an un-answered question the C.A. ruling has left to hang: Must a private person voluntarily \u201cthrust\u201d himself to a controversy before he can be classified as a public figure?<\/p>\n<\/blockquote>\n\n\n\n

P<\/span>RIVATE OR PUBLIC FIGURE: ‘UNKNOWN DEFENSE.’<\/strong> 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.<\/p>\n\n\n\n

Was Cheng a “public figure” at the time the alleged cyber-libel was committed?<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

WHY IT MATTERS.<\/strong> 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

CASES OF TOMAS, MIGUEL.<\/strong> The question of “public figure” figured prominently in the separate Cebu libel cases filed by former mayor Tomas Osme\u00f1a and his son Miguel.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

WHY CA SEES CHENG AS PRIVATE.<\/strong> 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:<\/p>\n\n\n\n

[] 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.<\/p>\n\n\n\n

[] 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.”<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

SELECTIVE CITATIONS.<\/strong> 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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 Osme\u00f1a’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.<\/p>\n\n\n\n

FOR A CLEAR-CUT RULE.<\/strong> Under the CA standard in the Rappler journalists’ case, it would seem that Tomas Osme\u00f1a 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.<\/p>\n\n\n\n

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? \"\"


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6. Miguel-vs.-Bobby libel case: public figure as \u2018unknown libel defense\u2019<\/h2>\n\n\n\n



PACHICO A. SEARES<\/strong>
(First published May 24, 2019, Media\u2019s Public, SunStar Cebu)<\/em>

<\/p>\n\n\n\n

T<\/span>HE prosecutor handling the criminal complaint of libel filed in October 2018 by Ramon Miguel V. Osmena, son of Cebu City Mayor Tomas Osme\u00f1a, has decided to charge broadcaster-newspaper columnist Pablito \u201cBobby\u201d Nalzaro with four counts of cyber libel and libel under the Revised Penal Code.<\/p>\n\n\n\n

In sum, Prosecutor Russel Busico found probable cause of the crime of libel, rejecting Bobby\u2019s defense that (a) his columns were not defamatory and (b) Miguel is a public figure who, to be libeled, requires \u201cactual malice.\u201d<\/p>\n\n\n\n

The resolution, a SunStar report said, was issued in January but was received by Nalzaro\u2019s 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.<\/p>\n\n\n\n

Only 2 are disputed<\/strong><\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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:<\/p>\n\n\n\n

Found offensive by the prosecutors in Bobby\u2019s Sept. 5 column: Miguel is \u201creportedly a stakeholder in the business of butane\u201d and Tomas is \u201cprotecting an illegal business because his son is involved.\u201d In Bobby\u2019s Sept. 12 column, this phrase, part of a question, was found by Busico as defamatory: \u201cthe manufacturer of those illegal butane products where your son Miguel, is a part owner?\u201d<\/p>\n\n\n\n

Statements, context<\/strong><\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

No actual malice<\/strong><\/p>\n\n\n\n

Apparently, there was no reckless disregard of the facts by Nalzaro. Which is required for \u201cactual malice.\u201d Which in turn is required when the person allegedly libeled is a public person or figure.<\/p>\n\n\n\n

See the link? The prosecutor dumped Bobby\u2019s \u201cpublic figure\u201d defense because if Miguel is considered a private figure, the journalist\u2019s malice is presumed: No need for evidence of actual malice; only malice in law.<\/p>\n\n\n\n

Focus on the subject<\/strong><\/p>\n\n\n\n

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 \u201cPublic figure the unknown libel defense\u201d:<\/p>\n\n\n\n

\u201cIf 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\u2019s primary interest is in the event; the public focus is on the conduct of the participant…\u201d<\/p>\n\n\n\n

I wrote in a 2015 column that a public person, which Tomas is, and a public figure, which Miguel is, \u201care on the same level in libel legal terrain.\u201d It would take \u201cactual malice\u201d to libel them.<\/p>\n\n\n\n

Who is a public figure?<\/strong><\/p>\n\n\n\n

The Supreme Court in Ayers vs. Capulong said \u201canyone who has arrived at a position where public attention is focused on him as a person\u201d is a public figure.<\/p>\n\n\n\n

I said then that Miguel qualifies as a public figure: Being the mayor\u2019s son (\u201cunico hijo\u201d), he is widely known to administer Tomas\u2019s 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\u2019s limelight. Last election, he spoke before a massive crowd of BOPK supporters.<\/p>\n\n\n\n

By SC\u2019s definition, a movie star, a sports personality, or even a radio commentator like Bobby is a public figure. Cirse \u201cChoy\u201d 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.<\/p>\n\n\n\n

Public issue<\/strong><\/p>\n\n\n\n

But does Miguel\u2019s 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.<\/p>\n\n\n\n

\u201cEven 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 \u2018it does not necessarily mean he could not be the subject of a public comment…\u201d \u201cSince the mayor\u2019s alleged meddling was \u2018a subject of public or general interest, it cannot become less so\u2019 just because it also involved a private person.\u201d<\/p>\n\n\n\n

Well, the prosecutor\u2019s office believes otherwise. The \u201cpublic figure\u201d card has become suddenly more important in the Nalzaro libel case, no longer just the \u201cunknown libel defense.\u201d \"\" <\/p>\n\n\n\n


<\/p>\n\n\n\n

<<< Related posts<\/a><\/h2>\n","protected":false},"excerpt":{"rendered":"

Surviving libel, other complaints How Bobby Nalzaro and his lawyers beat off Tomas Osmena’s libel complaints Not many people offended by what’s published about them go to court. They resort to their right of reply or use the pulpit of their high office. Those who sue the writer, commentator or media outlet must be exceedingly […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[48],"tags":[],"_links":{"self":[{"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=\/wp\/v2\/posts\/6386"}],"collection":[{"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6386"}],"version-history":[{"count":56,"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=\/wp\/v2\/posts\/6386\/revisions"}],"predecessor-version":[{"id":10417,"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=\/wp\/v2\/posts\/6386\/revisions\/10417"}],"wp:attachment":[{"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6386"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6386"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cebujournalism.ph\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6386"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}