Thursday, 3 May 2012

Tim Cumper - Various Points of Law


In the UK, there is no statutory definition of defamation. Instead, various statements by the courts contribute to a common law definition of defamation.

Each definition has a common link to the reputation of the person or business about whom the statement is made. The most widely regarded definition of defamation is a statement made which ‘tends to lower him in the estimation of right-thinking members of society generally’. If there is no injury to the reputation or character of the person or business, then it is unlikely that the statement is defamatory. For example, a mere insult, or simple abuse, may not realistically injure the person’s reputation. However, where the statement exposes the person to hatred, contempt or ridicule, or causes the person to be shunned or avoided, it may be defamatory.

Whilst not part of the definition of defamation per se, the defences of justification or truth, and fair comment, are important considerations in determining whether a statement is defamatory. Under the defence of justification, if it can be proved that the statement is substantially true, then the statement will not be defamatory. Similarly, under the defence of fair comment, if it can be established that the statement was intended as an expression of a genuinely held opinion, and not as a statement of fact, and that the opinion was made in relation to provable facts, then it may not be defamatory. Other defences, variations of a privilege defence, also exist.


"Aside from stalking via e-mail, online messaging, and social networking sites, Escudero said during Tuesday’s justice committee hearing that he also wants cyberstalking to cover the creation of websites dedicated to the person being stalked, especially if his or her pictures and whereabouts are being posted there." [GMA News Online 24th May 2011]


Libel Laws of the Philippines.

Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice.
[Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67]

In libel cases, the question is not what the writer of an alleged libel means, but what the words used by him mean. Jurisprudence has laid down a test to determine the defamatory character of words used in the following manner, viz:

“Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue, or reputation, or to hold the person or persons up to public ridicule. . . . ”
[Lacsa v. Intermediate Appellate Court, 161 SCRA 427 (1988) citing U.S. v. O'Connell, 37 Phil. 767 (1918)]

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstances which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.

There is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for “a man’s reputation is the estimate in which others hold him in, not the good opinion which he has of himself.”
[Alonzo v. Court of Appeals, 241 SCRA 51 (1995)]

On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement. In the case of Corpus vs. Cuaderno, Sr. (16 SCRA 807) the Supreme Court ruled that “in order to maintain a libel suit, it is essential that the victim be identifiable (People vs. Monton, L-16772, November 30, 1962), although it is not necessary that he be named (19 A.L.R. 116).” In an earlier case, the high court also declared that” … defamatory matter which does not reveal the identity of the person upon whom the imputation is cast, affords no ground of action unless it be shown that the readers of the libel could have identified the personality of the individual defamed.” [Kunkle vs. Cablenews-American and Lyons 42 Phil. 760].

This principle has been recognized to be of vital importance, especially where a group or class of persons, as in the case at bar, claim to have been defamed, for it is evident that the larger the collectivity, the more difficult it is for the individual member to prove that the defamatory remarks apply to him. [Cf. 70 ALR 2d. 1384].


The law also presumes that malice is present in every defamatory imputation. Thus, Article 354 of the Revised Penal Code provides that:

“Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Paragraph 2 aforequoted refers to a qualifiedly privileged communication, the character of which is a matter of defense that may be lost by positive proof of express malice on the part of the accused. Once it is established that the article is of a privileged character, the onus of proving actual malice rests on the plaintiff who must then convince the court that the offender was prompted by malice or ill will. When this is accomplished the defense of privilege becomes unavailing.
[Santos v. Court of Appeals, No. L-45031, 21 October 1991, 203 SCRA 110, 114]

Prescinding from this provision, when the imputation is defamatory, as in this case, the prosecution need not prove malice on the part of the defendant (malice in fact), for the law already presumes that the defendant’s imputation is malicious (malice in law). The burden is on the side of the defendant to show good intention and justifiable motive in order to overcome the legal inference of malice.

In order to constitute malice, ill will must be personal. So if the ill will is engendered by one’s sense of justice or other legitimate or plausible motive, such feeling negatives actual malice.
[Aquino, Ramon C., The Revised Penal Code, Vol. III, Bk. II, 1997 Ed., citing People v. de los Reyes, Jr., 47 OG 3569]

It is established doctrine that the malice that attends the dissemination of the article alleged to be libelous must attend the distribution itself. It cannot be merely a resentment against a person, manifested unconnectedly several months earlier or one displayed at a much later date.


Under Article 355 of the Revised Penal Code, libel may be committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.


Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or bysimilar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.


In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

It is important to remember that any of the imputations covered by Article 353 is defamatory and, under the general rule laid down in Article 354, every defamatory imputation is presumed to be malicious, even if it be true; if no good intention and justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. Truth then is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends.


Cyberstalking is the use of the Internet or other electronic means to stalk or harass an individual, a group of individuals, or an organization. It may include false accusations, monitoring, making threats, identity theft, damage to data or equipment, the solicitation of minors for sex, or gathering information in order to harass. The definition of "harassment" must meet the criterion that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress. Cyberstalking is different from spatial or offline stalking. However, it sometimes leads to it, or is accompanied by it.

Stalking is a continuous process, consisting of a series of actions, each of which may be entirely legal in itself. Technology ethics professor Lambèr Royakkers writes that:
"Stalking is a form of mental assault, in which the perpetrator repeatedly, unwantedly, and disruptively breaks into the life-world of the victim, with whom he has no relationship (or no longer has), with motives that are directly or indirectly traceable to the affective sphere. Moreover, the separated acts that make up the intrusion cannot by themselves cause the mental abuse, but do taken together (cumulative effect)."

When identifying cyberstalking "in the field," and particularly when considering whether to report it to any kind of legal authority, the following features or combination of features can be considered to characterize a true stalking situation: malice, premeditation, repetition, distress, obsession, vendetta, no legitimate purpose, personally directed, disregarded warnings to stop, harassment, and threats.

A number of key factors have been identified:
False accusations. Many cyberstalkers try to damage the reputation of their victim and turn other people against them. They post false information about them on websites. They may set up their own websites, blogs or user pages for this purpose. They post allegations about the victim to newsgroups, chat rooms or other sites that allow public contributions, such as Wikipedia or

Attempts to gather information about the victim. Cyberstalkers may approach their victim's friends, family and work colleagues to obtain personal information. They may advertise for information on the Internet, or hire a private detective. They often will monitor the victim's online activities and attempt to trace their IP address in an effort to gather more information about their victims.

Encouraging others to harass the victim. Many cyberstalkers try to involve third parties in the harassment. They may claim the victim has harmed the stalker or his/her family in some way, or may post the victim's name and telephone number in order to encourage others to join the pursuit.

False victimization. The cyberstalker will claim that the victim is harassing him/her. Bocij writes that this phenomenon has been noted in a number of well-known cases.

Attacks on data and equipment. They may try to damage the victim's computer by sending viruses.

Ordering goods and services. They order items or subscribe to magazines in the victim's name. These often involve subscriptions to pornography or ordering sex toys then having them delivered to the victim's workplace.

Arranging to meet. Young people face a particularly high risk of having cyberstalkers try to set up meetings between them.