Malice in libel – bar exam Q and A

It has been held that malice is the essence of the the crime of libel.  Important pointers follow.

Define malice in a libel action.

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 (US v Canete, 1918).  Malice is bad faith or bad motive (Potts v Dies, US case). It is the essence of the crime of libel (Rice v Simmons, US case).

Is malice an essential element of libel? What are the two kinds of malice?

Malice is an essential element (Art. 353, Revised Penal Code). The two kinds are: malice in law (which is presumed, though the presumption is rebuttable, per Art. 354), and actual malice or malice in fact  (it is not presumed, and must be proven by the prosecution or plaintiff).  See the question below on how malice in fact can be proved.

How is actual malice proved in a libel case?

–          It is believed that actual malice is proved by evidence that the author had knowledge that the offending statement was false or that it was made with reckless disregard of whether it was false or not.  NY Times v Sullivan.  (Note that this case was cited by the Supreme Court in Borjal v CA, 1999).  “Reckless disregard” in defamation suits is defined as serious indifference to truth or accuracy of a publication (Black’s).

–          Actual malice may be proved by extrinsic evidence that at the time of publication of the defamatory statement: (a) the defendant bore a grudge against the offended party, or (b) there was rivalry or ill-feeling between them.  Alternatively, actual malice may be proved if the defendant had an intention to injure the reputation of the offended party as shown by the words used and the circumstances attending the publication of the defamatory statement. [from Luis B. Reyes, Revised Penal Code, Book II, 15th ed., p. 951, citing People vs. Hogan, CA, 55 OG 1597.]  Note that “extrinsic evidence” refers to surrounding circumstances, while “intrinsic evidence” refers to that existing within a writing (Black’s).  Thus, to prove actual malice, extrinsic evidence is necessary but it may not be sufficient.

–          There is an obiter in the concurring opinion of Justice Black in NY Times: “Malice … is an elusive, abstract concept, hard to prove and hard to disprove.”

What is the New York Times test?

This says that the test of actual malice is whether the author had knowledge that the offending statement was false, or it was made with reckless disregard of whether it was false or not.  NY Times v Sullivan.  The NY Times test was referred to in a dissent in In re Emil Jurado, 1995, by Justice Puno, who said: “… mere proof of falsity or slant is not proof that the falsehood or slant was made knowingly or with reckless disregard of truth, to use the New York Times test.”  It would seem that “slant” by itself does not prove reckless disregard of truth.

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