THE BRIAN GORRELL blog-Gucci Gang controversy is gaining more and more following after the Lopez-owned ABS-CBN network has started to take it up in its various shows in an apparent attempt to downplay it with legal talks, what with Celine Lopez as among the targets, sending a message (read: veiled threat) that those who will mention the names of people involved, other than Brian’s, may face libel suits. Even the headline of an article posted at ABS-CBN News Online (Online libel: Aussie blogger’s victims are helpless) showed an apparent slant, picturing Brian as a culprit rather than a victim. And the story was a message from the network. But instead of deflecting interest and gaining sympathy for the Gucci Gang, ABS-CBN made Brian’s blog more popular and caused more enrage among bloggers.

There is no question that libel, based on Philippine definition, is present in Brian’s blog. But unless Brian is found guilty of libel or that his blog is proven to be libelous in the courts, people who will mention the names of those exposed in the blog or re-publishes alleged libelous portions of it have nothing to fear. As a rule, republishing a libelous item is libel. Yet, only the court can determine if the first publication is libelous. If proven as such, then republication becomes a crime. But since Brian’s blog came out March 4, no court action has been instituted.

Libel across borders is an interesting issue not only among lawyers but also among bloggers and journalists. Most bloggers are prone to committing libel because of the absence of editorial policies governing their posts. A scan of bloggers’ grammar, construction and content proves that. On the other hand, newspapers now have online editions and these can be accessed anywhere in the globe, and once an article offends someone, the offended party can file a complaint where defamation occurred and not necessarily where the writer is based.

Decades ago, media educator Marshall McLuhan predicted that technology would shrink the world and that we will all live in one global village. This is true today. And libel across borders is a phenomenon that is already happening.

A landmark case on this involves an Australian businessman, Joseph Gutnick, who sued Dow Jones & Co., the publisher of Barron’s Online, for defamation. Dow Jones is based in New Jersey where the libelous article, which described Gutnick as a customer of a money launderer and a tax evader, was uploaded. And publication and jurisdiction had been the main argument of Dow Jones, saying that for the suit to prosper, Gutnick must institute it where the article was “published from.” But the High Court of Australia ruled in favor of Gutnick, saying he has the right to sue for defamation at his primary residence and the place he was best known, in which case, the state of Victoria.

“So far as damage to his reputation was concerned, Victoria, as the place of his residence, was where most such damage would be done, rather than amongst business, religious or other acquaintances in North America or with the very large number of strangers there who might read about (Gutnick) in the (Dow Jones’) Internet publications,” the Australian Supreme Court said in its 75-page decision, a copy of which can be downloaded from the Internet. In 2004, Dow Jones settled the case and paid Gutnick about $400,000 in fees and damages.

Using the same arguments forwarded by the Australian high tribunal, those who felt dishonored by Brian’s blog may institute a case in any court in the Philippines. But publication and jurisdiction are just among the considerations in this case. If the Philippine court can acquire jurisdiction and proceed in hearing the case, the next question would be: Did Brian actually commit libel as defined by law? Truth is not always a defense in libel, and while Brian might be telling the truth, he can still be held liable if his sole purpose is to besmirch and dishonor. Article 354 of the Revised Penal Code says: “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.”

What was Brian’s motive is setting up a blog? To get back his $70,000 that Montano allegedly bilked from him. Is this a justifiable motive? The burden of proof lies in Brian. Does the end justifies the means? In Daez vs Court of Appeals (G.R. No. L-47971), the Supreme Court said: “The goodness of the intention is not always sufficient by itself to justify the publication of an injurious fact; thus the goodness of the end is not a sufficient motive to warrant the employment of illicit means to obtain it. The existence of justifiable motives is a question which has to be decided by taking into consideration not only the intention of the author of the publication but all the other circumstances of each particular case.”

However, if the dishonored parties bring the issue to court, it will sure take a long process before Brian can be brought to the Philippines to face trial. The Philippine government has even failed to extradite Rodolfo Pacificador back to Antique from Canada to stand trial in the murder of former Gov. Evelio Javier. Can the so-called Gucci Gang members be more influential than the Philippine government? Is the justice that they are seeking more important than the justice that the people of Antique have been aspiring for? Australia and the Philippines signed an extradition treaty but this can be a ticklish issue. Brian can invoke what Pacificador had invoked to block his extradition – that he can never get a fair trial in the Philippines. Who does?

Legal arguments and considerations in this case can be never-ending, not to mention the cost which may reach more than $70,000, the amount that DJ Montano allegedly took from Brian. But all that we hear in this controversy is the side of Brian, while the so-called Gucci Gang members have remained mum. While it is true that everyone has the right to remain silent, the Supreme Court has also ruled several times that silence can be construed as guilt. In Ortiz Jr. vs De Guzman (A.M. No. P-03-1708), it said: “Despite all opportunities accorded to respondent to appear and present his countervailing evidence, he failed to do so. Hence, respondent’s silence may be considered as an implied admission of guilt.”

But if the so-called Gucci Gang members break their deafening silence and sue Brian, they have to contend with one legal principle: He who comes to court must come with clean hands. Affirming this, the Supreme Court, in De Castro vs Utility Savings (G. R. No. 166445) said: “This is a frequently stated maxim which is also expressed in the principle that he who has done inequity shall not have equity. It signifies that a litigant may be denied relief by a court on the ground that his conduct has been inequitable, unfair, dishonest, fraudulent or deceitful…” Who’s the real culprit and who’s the real victim in this case?

Meanwhile, there was this female athlete who proclaimed herself “the Charles Barkley of figure skating.” Learning about this, the basketball legend and compulsive gambler quipped: “My initial response was to sue her for defamation of character, but then I realized that I had no character.”

Indeed, libel takes place only when true honor is besmirched.

23 Responses to “Of libel and honor”

• 1
  nester
  March 30th, 2008 04:14

  Maybe all that DJ has to do is to pay up. If he files a case, he will have to spend more than the $70K that he owes Brian.
• 2
  ben diaz
  March 30th, 2008 04:28

  sir, you should be writing in the national newspapers. your views and writing skills deserve national exposure. more power!
• 3
  krys
  March 30th, 2008 14:17

  very informative read.. you should be writing for national broadsheets..
• 4
  Benedict Bernabe
  March 30th, 2008 18:15

  very well researched and presented.
• 5
  coffee
  March 31st, 2008 19:16

  good sir,

  your writing rocks. but please don’t write for the national papers. just look at the garbage printed by the dailies everyday. my suggestion? bypass this farce called national media and try the global arena.

  all the best.

  {cofffe - from NYC}
• 6
  Isaribi
  April 2nd, 2008 10:05

  very informative. KUDOS!
• 7
  Louis
  April 2nd, 2008 10:32

  Downplay? Are you sure about what you are talking about? LATELY: Have you seen the TV Patrol report? Have you heard the Magic 89.9 interview? Have you read the blog? Get your facts straight. More credibility is due you if you get to apologize for the misconception you wrote on ABS CBN about this news. No affiliation to ABS CBN here, just a question I’d like to post to you: how can you question the credibility (based on your opening paragraph) of one news organization when you yourself, like i stated above, is not getting the facts straight.

  ———–
  NCL’s reply: “downplay it with legal talks…” This article was written 29 March 2008, after Media in Focus was aired and way before the Gigi Grande report and the Magic 89.9 interview. Have you watched that episode of Media in Focus? If you did, maybe you just did not get the message.
• 8
  ams
  April 2nd, 2008 10:48

  Hey, this was a great piece. the most informative (in regards to the law) i’ve read about the brian-dj-blog fiasco. your name will be in my reading list.
  good day to you sir.
• 9
  Bay Breeze
  April 2nd, 2008 12:27

  I’ve also read that repeating a libelous statement is actionable in itself and there is no need for the original statement to be declared libelous before the repetition is considered so.

  Actually, this piece is a good test case. You repeated the libelous imputation and mentioned the pinoy lover by name. Maybe he should sue you, see what happens. The academic benefit for the topic of libel would be tremendous.

  Don’t worry. As the old joke goes, bibisitahin ka naman namin sa Bilibid e.

  Cheers!

  ——————–
  NCL’s reply:

  The Supreme Court, in Mendez vs Court of Appeals (GR 124491), said:

  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. The anger observed by trial court to have been shown by the petitioner towards private complainant at the time the former offered his testimony in defense of libel cannot be properly considered as malice, either in fact or in law, that accompanied the dissemination of an alleged libelous publication. For the anger discerned of petitioner on the witness stand could also mean anger not only borne out of a sense of justice frustrated by the continued refusal of Judge Sidro to return to him his cash bond, but also at being criminally sued in court for an act which he stoutly believed was not imputable to him. This state of mind cannot be appropriately considered malice and applied retroactively to the time of the distribution of the alleged libelous article unless clear and convincing evidence shows otherwise; and, there is no such contrary evidence in the case at bar. Since there is no indication about the cause of such display of “intense hatred” by the petitioner for Judge Sidro, the Court will grant him the benefit of the doubt under the “equipoise doctrine.”

  There was nothing defamatory in the news item. This much was found by the trial court itself, noting that the published article was merely a factual report about the filing by the Ombudsman of the charge of corruption against the judge with the Sandiganbayan. Of course, it does not necessarily mean that if the news article complained of is not libelous because it is a privileged matter, he who repeats the publication is likewise free from accountability for the re-utterance. We recognize that a person’s liability for libel does not necessarily proceed from the fact that he was the original publisher of the discreditable act. The maker of a libelous republication or repetition, although not liable for the results of the primary publication, is liable for the consequences of a subsequent publication which he makes or participates in making so long as the elements of libel are satisfied. But in every case malice must be present, something which has not been shown in the case at bar.

  The law presumes that malice is present in every defamatory imputation. However, on this score, Art. 354 of the Revised Penal Code provides an exemption -

  Art. 354. Requirement for publicity. - 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 x x x x 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 (emphasis supplied).

  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. Since the prosecution failed to establish express malice on the part of petitioner by positive proof, its cause perforce must fail.

  WHEREFORE, this petition is GRANTED. The decision of the Regional Trial Court of Catarman, Northern Samar, dated 11 March 1993 finding petitioner guilty of libel, and that of the Court of Appeals dated 28 February 1996 affirming his conviction are REVERSED and SET ASIDE. Petitioner ROQUE VICARIO Y MENDEZ is ACQUITTED of the crime charged.
• 10
  Ronald
  April 2nd, 2008 12:30

  Wow.. Sir, napa bilib ako sa iyo..galing..
• 11
  Bay Breeze
  April 2nd, 2008 14:02

  You forgot to highlight a very important qualification which is that the burden of proof of malice shifts only to the plaintiff when the case concerns PRIVILEGED COMMUNICATION (which is Par. 2 of that law eg. official proceedings). The blog is not privileged communication and therefore the presumption of malice remains for defendant to disprove. Tama ba? Is there a lawyer in the house?

  I think it is clear that what Brian is doing is libelous, no question about it. Even if it is true that the GG are scumbags and even if it’s true that he has been wronged and even if it’s true that he has to get his money back, the GG are still protected by libel laws. Truth is not a defense.

  The only reason why no charges have been filed against Brian is because our courts cannot acquire jurisdiction over him. NOT because the GG do not possess “true honor” as you say. They are well within their rights to sue for libel and they will win. But they must hurdle the jurisdiction issue first.
• 12
  Ronnie A. Dulay
  April 2nd, 2008 14:13

  Hi Sir,
  The broadsheets need you, especially the Philippine Star. Some of their news reporters/writers should be writing for those sleazy tabloids. The late Max Soliven, if he were alive today, would have sent this people away.
• 13
  ben diaz
  April 2nd, 2008 15:20

  @Bay Breeze: I think the article is balanced, weighing both sides of the issue. And Mr. Lujan did not categorically say that the GG do not possess honor. As the old Tagalog saying goes: bato bato sa langit ang tamaan huwag magalit.
• 14
  ben diaz
  April 2nd, 2008 15:25

  @Bay Breeze. I think Mr. Lujan agrees with your point when he wrote “Did Brian actually commit libel as defined by law? Truth is not always a defense in libel, and while Brian might be telling the truth, he can still be held liable if his sole purpose is to besmirch and dishonor.”
• 15
  Rey Castillo
  April 2nd, 2008 15:39

  Why cant we mention the names of the Gucci Gang? If they are innocent, then they should allow their names to be mentioned so that truth will come out. Ganun din sa rape, bakit ang rape victim always “not her real name” when the suspect’s name is always mentioned. What if the rape charge is false, eh di napahiya na yung suspect, may stigma na siya na rapist sya. Unfair naman yun! Just because mayayaman cla the media won’t mention their names? Biased ang media kung ganun. Pro-rich! Ayaw i-mention ang name kasi hindi daw public figures yung mga involved. If what you write or report are attributed statements, hindi naman libel yun. In the same manner na kahit sino pwedeng pumunta sa police station at mag pa blotter eh yung mga taga media kumukuha din ng news sa police blotter hindi naman sila sure kung fabricated yun ng nag report o hindi. Anyone pwedeng magpa blotter, di ba? Going back sa issue ng public figure, depende naman yun sa tingin mo sa tao. For example si Celine Lopez, maybe hindi sya qualified as public figure sa Manila but dito sa Iloilo, she is a public figure. Case to case basis din yan.
• 16
  ben diaz
  April 2nd, 2008 15:50

  @Bay Breeze, i think the issue is not about privilege communication but malice. if you mention the names of the GG without any malice at all, so why worry?
• 17
  bj
  April 2nd, 2008 17:16

  Great piece of work!

  You did a very good job in writing a sensible piece on a currently sensitive topic. I really admired the research you put into your article. As a law student, i noticed that you did not deviate from what the Supreme Court rulings said in reference to your article.

  But i disagree in one point regarding the GG and the legal maxim that “he who comes to court must come with clean hands”. I must say, in all fairness and honesty, that most of them were already judged publicly due to their being part of the GG as consequence. They could rightfully sue Brian for libel and defamation.

  But then again, I think that they won’t, because if what Brian says about their being cocaine users are true, then that would definitely hold them back as it could be used against them in a different case regarding RA 9165 or the Comprehensive Dangerous Drugs Act of 2002.

  Oh well, the world is fair indeed..
• 18
  toph
  April 2nd, 2008 17:27

  Our libel laws (and most of our Revised Penal Code) are SOOO outdated that some parts sound stupid. It’s jarring how they’re so incongruous with modern sociey. When will some of our stupid laws be revised or repealed? Frankly, if the Philippine courts take jurisdiction of this, Australia should pay it no mind and do all it can to protect Brian from our stupid, corrupt judicial system.
• 19
  Tom Cruz
  April 2nd, 2008 17:48

  Brian is moving to Canada from Australia. So what happens next? As this article mentioned, the Philippine government has even failed to extradite Rodolfo Pacificador back to Antique from Canada to stand trial in the murder of former Gov. Evelio Javier, how much more the GG when it comes to Brian’s case? The Canadians did not want Pacificador extradited because they believe him when he said he cant get a fair trial in the Philippines. I think they will believe Brian too knowing what happened to him here. Canada will protect Brian. The world knows how foul our justice system is!
• 20
  Remy
  April 3rd, 2008 22:44

  Mr. Lujan:

  I got so interested with your article and the book itself that I had my sister find me the book in Manila. Hopefully, she’ll be able to get a hold of a book in Ateneo Press and ship it to me. However, in the meantime, Amazon is looking for a book for me
• 21
  el toro
  April 7th, 2008 20:21

  hmm….. gudbye Iloilo Views , helow Inquirer
• 22
  Sunshine
  April 9th, 2008 02:53

  I am very proud to be an Ilonggo because it is only in Iloilo Views where this topic is being discussed seriously. I seriously want to bookmark this website!

  Good work and more power!
• 23
  danny
  April 17th, 2008 20:24

  Nice job.
  I agree with one poster who said that you should bypass the national broadsheets and go international. You are that good.

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