Here are some pointers for wannabe authors of satire and fiction. Often enough, bits and pieces of blogs are just that, so it pays to be informed.
What is satire? Is it fair comment?
Satire has been defined as the use of irony, sarcasm, or caustic wit to attack or expose folly, vice, or stupidity. By definition, satire expresses its author’s opinion, and when applied to matters of public interest it would be fair commentary, which in the legal dictionary is a statement based on honest opinion about a matter of public concern (Black’s).
When does satire become libel?
When it is attended by malice, actual or presumed. Arts. 353-354, Revised Penal Code (RPC).
Malice connotes ill will, an intention to do unjustifiable harm. It is incompatible with the existence of a moral, social, or legal duty; it is also incompatible with justifiable motive. This is because malice “speaks not in response to duty” (US v. Canete, 38 Phil 253); and “where malice in fact is present, justifiable motives cannot exist” (People v. Peregrino, CA case, citing US v. Bustos, 13 Phil 600).
Generally, where satire is fair comment, a libel suit against the author imposes a burden on the plaintiff or complainant to prove actual malice. This is based on the doctrine in Borjal v. CA, 1999.
Of course, when the subject matter is one of public concern, it is likely that any person has at least a moral or social duty to speak out, and he also has justifiable motive when the statement is made to further the public interest. On more general criminal law principles, fulfillment of duty or lawful exercise of a right is a justifying circumstance that negatives mens rea or criminal intent (Art. 11, para. 5, RPC).
Even if the words used are intemperate, they would be protected because of the constitutional right to free speech. In NY Times v. Sullivan, Justice Brennan stated: “[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.”
Notable is the idea that satire is a form of expression where “irony is militant,” because it seems to work best by eschewing invective and straightforward preaching. Besides, irony is more fun and sticks better than when we call people names.
What is opinion?
It is a statement of a belief (Black’s). It appears that satire would qualify as opinion.
When is opinion subject to a libel suit?
When it is a defamatory statement made publicly and with malice. Art. 353, RPC. Hence, a defamatory opinion regarding the private life of another is subject to the libel laws. But honest opinion on matters of public concern is fair comment, as stated above, and a libel suit would prevail only if the complainant can prove actual malice.
Can the NY Times test of actual malice apply in a libel case involving satire? What about fiction?
The so-called NY Times test of actual malice cannot readily be used on satire. This is because the test states that malice is proved when the author has knowledge of the falsity of his statement, or when he makes a statement with reckless disregard of the truth. Since falsity is not in issue in satire (or in another literary form such as parody or fiction), the test of actual malice must revert to the lack of duty or justifiable motive, as discussed above, along with extrinsic evidence of ill will. On the same reasoning, works of fiction are generally not subject to libel suits, the exception being the case when actual malice exists.