The truth defense in defamation

Just the other week, a jury awarded Johnny Depp $15 million in damages in a defamation lawsuit he brought against ex-wife Amber Heard for claiming in a 2018 Washington Post op-ed that she was a “public figure representing domestic abuse.” Regardless of one’s opinion about the merits of Depp v. Heard, the highly-publicized trial has raised concerns among domestic abuse victims who may have spoken or written about their abusers that they may now face similar defamation lawsuits.

When faced with the threat of a defamation lawsuit, a defendant’s instinctive reaction may be to argue that the statement published was true. After all, it seems counterintuitive for the publication of a truthful statement to result in liability.

While state defamation laws vary, it is widely accepted by most American jurisdictions that a statement must be false to be considered defamatory. It follows that most states generally regard truth or substantial truth as an absolute defense to a defamation lawsuit. In the Philippines, this is not the case.

Philippine law defines defamation as the “publication of anything which is injurious to the good name or reputation of another or tends to bring him into disrepute” (MVRS Publications v. Islamic Da’wah [2003]). While defamation under Philippine law can give rise to both civil and criminal liabilities, the concept of criminal defamation is more well-defined under statutory law.

Our penal code makes a further distinction between libel, which is defamation committed by means of writing, printing, radio, or similar means, and slander, which is defamation committed by oral means (Rev. Penal Code, Art. 353 in relation to Art. 358). In 2012, the Cybercrime Prevention Act introduced the concept of “cyberlibel.” Cyberlibel is libel “committed through a computer system or any other similar means that may be devised in the future” (Rep. Act No. 10175). The difference between these specific categories of criminal defamation lies mainly in the medium of communication because the manner in which they are committed is generally similar.

In terms of statutory law, the concept of libel has the most precise definition. Under the Revised Penal Code, libel is the 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 cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead (Rev. Penal Code, Art. 353). Based on this definition, a successful prosecution for libel must establish the existence of the following elements: (a) the defamatory imputation; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.

Noticeably absent from the enumeration is the requirement of falsity. Instead of falsity, Philippine law only requires that the imputation be both defamatory and malicious. An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, or any act, omission, or condition which tends to dishonor or discredit him. On the other hand, malice implies an intention to do unjustifiable harm and to injure the reputation of the person defamed (Manila Bulletin v. Domingo [2017]). Philippine law presumes that every defamatory imputation is malicious, even if it be true, if no good intention and justifiable motive for making it is shown (Rev. Penal Code, Art. 354). Truth or falsity is generally immaterial in a defamation suit because Philippine defamation law does not seek to punish the act of lying or telling mistruths about others. Instead, its primary purpose is to uphold a person’s “right to public esteem” by preventing injury to reputation (Tulfo v. People [2021]).

So is the truth completely irrelevant in a defamation lawsuit? No, the truth is still relevant but in a limited sense.
First, while not an absolute defense, the truth of an allegation may be received in evidence if established together with other elements. If an allegation is true and proven to have been published with good motives and for justifiable ends, then the defendant will be acquitted. Additionally, a truthful allegation that pertains to a criminal act or to the discharge of a government employee’s official duties will also lead to the acquittal of the defendant (Rev. Penal Code, Art. 361).

Second, the truth is also relevant in either establishing or rebutting the existence of actual malice. While every defamatory imputation is presumed malicious, Philippine law provides for exceptional cases where the presumption does not apply, such as: (1) private communications made in the performance of any legal, moral or social duty; (2) fair and true reports (Rev. Penal Code, Art. 354); (3) fair commentaries on matters of public interest (Borjal v. CA [1999]); and (4) when the complainant is a public figure, particularly a public officer (Daquer v. People [2021]). In these cases, the burden falls on the prosecution to establish that the defamatory statement was published with actual malice or with the knowledge that it is false or with reckless disregard of its falsity. The “reckless disregard” standard requires a high degree of awareness of the probable falsity of the statement. At the very least, it requires that the defendant in fact entertained serious doubts as to the truth of the statement published (Disini v. Secretary of Justice [2014]). In Yuchengco v. Manila Chronicle (2009), the Supreme Court ruled that “failure to even get the side” of the person defamed constitutes reckless disregard of the truth.

As it stands, a criminal action for libel remains to be a viable remedy for individuals who feel that their reputation may have been damaged by the malicious statements of others. Thus, while we may sometimes feel justified in publishing truthful albeit defamatory statements, it would be prudent to remember that truth alone does not shield a defendant from liability in a defamation lawsuit.

This article is for informational and educational purposes only. It is not offered as, and does not constitute, legal advice or legal opinion.

Clarisse Anne G. Peralta is an Associate of the Litigation and Dispute Resolution Department (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices or ACCRALAW.

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