Private individuals and public interest

There is good news and bad news for the First Gentleman, apropos of his claim that he is a private individual in his libel cases against 43 journalists. Last time, we saw his reasons for not wanting to be classified as either a public officer or a public figure.

Generally, it has to do with the burden of proof on him if he were to be deemed a public official or a public figure. In such a case, truth would be a complete defense for the accused. Even if the defamatory statement is false, the FG would have to prove actual malice, that is, that the accused knew of the falsity or recklessly disregarded the truth.

This actual malice standard, the famous New York Times rule, has been specifically adopted by our own Supreme Court. Although originally applied to public officers, the rule has been extended to public figures both in the US and here.

But has the rule been extended to private individuals who allege defamation, so that a test much less stringent than "actual malice" by the accused would be applied? Thus, in case of a "defamatory falsehood" against a private individual, would proof of simple negligence on the part of the accused, such as a failure to investigate the defamatory statement, be enough to convict?

As we said, there’s both good news and bad news for the FG here. Since no less than Godfather Vito Corleone has decreed that it’s better to hear the bad news first without delay, let’s start with that.

There is actually a United States Supreme Court decision, penned by liberal icon Justice William Brennan (also the author, not incidentally, of the majority opinion in New York Times vs. Sullivan), which ruled that the actual malice test applies with equal force to plaintiffs who are private individuals. Justice Brennan said that press freedom "protects all discussion and communication involving matters of public or general concern without regard to whether persons involved are famous or anonymous."

The focus here is on the public concern over the matter that is the subject of a defamatory falsehood, not on the identity of the person allegedly defamed. In this case, the plaintiff was a distributor of magazines, neither a public official nor a public figure.

Justice Brennan further stated: "If a matter is a subject of public or general interest, it cannot suddenly be less so merely because a private individual is involved, or because in some sense the individual did not choose to become involved."

Since the plaintiff failed to prove that the defamatory falsehood was published by a radio station with knowledge that it was false, or with reckless disregard for whether it was false or not, the libel case was dismissed.

Now, the good news: In another case decided by the US Supreme Court just three years later, a more conservative court decided to abandon that ruling and refused to apply New York Times to private individuals. Through Justice Lewis Powell, the Court held that an accused publisher of defamatory falsehoods against an individual who is neither a public official nor a public figure may not demand proof of actual malice on the part of the accused. A lesser standard of care would suffice for the libel action to be sustained.

According to the Court, "to extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation…"

In the Philippines too, the New York Times rule has not been extended to private individuals. Neither do we have to struggle with conflicting Supreme Court decisions. But who knows how the Court would decide if the issue were to come up in a proper case.

Would our Court go with the liberal Justice Brennan and rule that the actual malice standard must be met by private individuals who claim they have been libeled by a defamatory falsehood which involves a public concern?

Or would it adopt the approach of the conservative Justice Powell and rule that defamed private persons don’t have to prove actual malice by the accused in the event of a defamatory falsehood, whether or not it involves a matter of public concern?

We should keep a couple of things in mind. One is that this debate revolves around defamatory falsehood only, meaning that the allegedly libelous statement turned out to have been false. If the defamatory statement was true, then the libel case would be dismissed whether the plaintiff is a public official or a public figure since in these cases, truth is a complete defense.

But if the plaintiff is a private person, our criminal law provides that truth alone would not suffice, and that good intention and justifiable motive must also be shown.

The other is that the actual malice standard is still relevant to the amount of damages a defamed private individual would be entitled to. Although Justice Powell refused to apply the actual malice standard to a private person, he did stress that the latter would be entitled only to actual or compensatory damages if the liability of the accused was based on "a less demanding showing than that required by New York Times."

But to collect punitive (or exemplary) damages, the plaintiff would have to prove knowledge by the publisher of the falsity of the defamatory statement, or reckless disregard of the truth. In other words, the plaintiff must meet the actual malice standard.

It will be recalled that, as explained in previous columns, huge damage awards, even when libel laws are purely civil in nature, are often condemned as resulting in a chilling effect on media, tantamount to prior restraint. Such damage awards typically become substantial when exemplary damages are added to actual and other damages.

To pursue these legal points will require us to go into some detail on the esoteric field of damages. While this technical exercise might warm the cockles of lawyers’ hearts, it will probably bore ordinary mortals to death, and give people more motivation to suggest, with one of Shakespeare’s characters, that we kill all the lawyers.

So, let me just leave you with this question: Does the FG’s libel cases present an opportunity to our Supreme Court to decide whether or not to extend the New York Times rule to private individuals? I’d have to say it would depend on whether the issue reaches the SC in the first place. That, in turn, depends on how the lower courts rule on the issue of whether the FG is a public official, a public figure or a private individual.

If the FG is serious about insisting on his status as private individual in his libel cases against 43 journalists, I say let him. Hopefully, he will at least contribute to the growth of jurisprudence in this country, whatever chances his claim has in our courts.