Recently, a government official (former DSWD head, Dr. Esperanza Cabral) initiated proceedings to charge a blogger (Ella de los Santos, or simply Ella) with libel. The NBI reportedly investigated the matter and sent a referral letter to government prosecutors.
According to the news report of the Philippine Daily Inquirer, the NBI said in its referral letter that: “The [blog] article alluded that she [Dr. Cabral] and the DSWD employees are corrupt, having diverted donated goods for personal gain at the expense of the typhoon victims and downright incompetent.”
Out of curiosity, I searched for the offending blog post, dated Oct. 21, 2009. Here’s what I found from the archives of the Ella blog:
One is a statement by Ella of her opinion about deaths that could have been prevented:
“I don’t want to accuse her [referring to Dr. Cabral] of corruption but at the very least she is showing signs of being totally incompetent. We are in a state of calamity where every second counts. May namamatay araw-araw dahil sa sakit.
In my opinion, these deaths could have been prevented if Secretary Cabral had tried a little harder to do her job.”
These seem to be strong words, but they may be read in context. In the same blog page, Ella also made another statement, explaining that:
“A group of eight people, your ate Ella included, went to one of DSWD warehouses to help in repacking relief goods. We know they need volunteers pero hindi namin akalaing WALANG TAO TALAGA SA LOOB NG WAREHOUSE!
As in sa isang humongous warehouse (1000++ sq.m) NA PUNONG-PUNO NG RELIEF GOODS HANGGANG BUBONG, ISANG DSWD employee lang at ISANG SECURITY GUARD ang tao!!”
In a subsequent post, Ella made the following entry in her blog, in which she published a statement by Dr. Cabral. This is what Ella said:
“In fairness to Secretary Cabral and the DSWD. I’m posting her comment. It’s amazing that she found the time to write a very long winded comment/explanation. She didn’t have the time to answer one simple question from a journalist two days ago. She was given every opportunity to present their side pero sa totoo lang she ignored each one.
‘Statement of Dr. Esperanza Cabral on the issue of relief goods in the DSWD Warehouse
October 23, 2009
The Department of Social Welfare and Development (DSWD) manages the National Relief Operations Center (NROC) which is the facility for processing and storage of relief goods that are purchased by the Department or donated to us by generous individuals both here and abroad. The relief goods are released to our Regional Offices or directly to evacuation centers or to the local government units as they are needed and requested by these entities. They are delivered in trucks, many of which were lent to us by private companies or by military vehicles. Some of the goods are shipped by air from nearby Villamor Airbase.
When typhoons Ondoy and Pepeng hit the country, we received and are continuing to receive donations. Our warehouses are indeed full, inspite of the fact that we have distributed 500,000 food packs and 200,000 clothing packs as well as thousands of sacks of rice, blankets, beddings, and items of personal hygiene in the past almost 4 weeks. That is the reason why when asked if we still have enough goods, my constant reply is yes, so far we do, thanks to the many kind-hearted individuals and organizations as well as countries who responded and are still responding to the plight of the typhoon victims.
There are no rotting relief goods in our warehouses as we do not keep perishables there and the relief goods that are there, save for the donated old clothes are quite new since they have been either recently purchased by us or have been just donated.
Our goods are repacked by volunteers who are there because they want to help. But they are volunteers and report when they have time to help us. Sometimes there are two hundred of them and sometimes there are only a dozen. However many or few they are, we appreciate their presence and their assistance. Weekdays are usually quiet but on Saturdays and Sundays, the students, along with others who work Monday to Friday, including our own employees, are there.
Our staff at the warehouse work round the clock even now, making sure that the requests for relief goods are met in a timely manner. They work hard, they work quietly and they work humbly and I feel bad that they have been subjected to public vilification that they do not deserve.
I do not recall having talked to an Editor of Philippine News. I do remember my secretary telling me that someone was on the phone asking why there were no volunteers working at the warehouse. My reply was we do not own the time of the volunteers.
I wish that I could have prevented the deaths from typhoons but in fact, they have nothing to do with the relief goods that we are in charge of. Most of the deaths were from drowning or injuries sustained during the typhoon. Some died of illnesses. We are not in charge of rescue nor are we in charge of health and to the best of my knowledge, none of the deaths was due to absence of or delay in the delivery of relief goods.
We would like to assure all of you that the relief goods will reach the intended beneficiaries as they become necessary and will be used only to assist them. However, the relief goods don’t all go out at the same time and an empty warehouse is not proof that the goods were used properly just as a full warehouse is not evidence that the goods are being hoarded. If you visit our website http://www.dswd.gov.ph you will find updates on our activities related to typhoons Ondoy and Pepeng. It includes an updated list of donations received and goods released from the DSWD warehouse.
There are many aspects of disaster response. They include recovery and rehabilitation and in both instances, goods and other resources are still needed. In the initial reaction to a calamity, people will want to help and as we saw recently, they came in droves, offering their time, their talent and their resources. We want them to know how much we appreciate them for what they have done and what they are still doing. But further down the road, when the initial flush of generosity gives way to donor fatigue, there will remain only a few hardy NGOs and volunteers and the workers of the DSWD and other government agencies to continue the job of helping the disaster victims back on their feet. Judicious use of resources at the outset is imperative lest we face the situation of even greater want after a period of relative plenty. We at the DSWD wish to assure you that your trust in us is not misplaced. Thank you.’”
What can an observer make of all this?
I would volunteer a common-sense opinion. I believe that Ella’s postings are fully within the definition of “fair commentary” in the jurisprudence on libel. In the jurisprudence, fair comment is a sufficient defense if the subject matter of the libel case is a matter of public concern.
Fair commentary admits of two possibilities. One is that the statement or comment is true. Alternatively, it may be false, and it is still fair commentary if it expresses the real opinion of the author and it was formed with reasonable degree of care and on reasonable grounds (US v Sedano, 1909). More simply, the legal dictionary considers as fair comment a statement based on honest opinion about a matter of public concern (Black’s).
What is the rule as regards fair commentary? The rule is simple. Ordinarily, any defamatory statement is presumed to have been made with malice, and malice is an essential element of criminal libel. However, in a landmark case, the Philippine Supreme Court held that if the offending statement is fair commentary, the presumption of malice does not hold (Borjal v CA, 1999). It is then the duty of the prosecution to prove, and to do this beyond reasonable doubt, that the accused made the statement maliciously. In short, the prosecution will have to prove actual malice. (But note that by definition it seems that anything within the definition of fair comment must be bereft of malice. That is why the comment is called “fair”!)
The Philippine Supreme Court also adopted in the Borjal case the doctrine in NY Times v Sullivan that actual malice is proved by evidence that the author had knowledge that the offending statement was false or was made with reckless disregard of whether it was false or not. Indeed in a very early case, actual malice was defined as something that 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 (US v Canete, 1918).
In the case of Ella, and based on her statements and the manner in which these statements were made in her blog, and particularly that she published in full the statement by Dr. Cabral on the matter, it seems proper to conclude that Ella gave her honest and real opinion, and acted in response to duty and without any intent to injure the reputation of any person.
Another way of looking at the matter is to revisit the concept of “privileged communication,” defined as any statement, even if defamatory, where the presumption of malice cannot legally be made. Fair comment is included in privileged communication. Importantly, the Supreme Court also held that the concept of privileged communication is implicit in the freedom of the press (Elizalde v Gutierrez, 1977, as cited in Borjal). In effect, the constitutional guarantee of free speech protects defamatory statements if they are fair commentary.