Speaking your mind may not be all that it is cracked up to be, especially when it constitutes libel which is a crime under the Revised Penal Code. Commentators on television and radio, as well as columnists in the newspapers, court the risk of imprisonment for every exposé and article that they make. However, this is risk which can also be faced by you and me, for opening our mouth to say something against another. So curb that urge to share your opinion that someone is a “moron”, until you have seen what you may be up against. Getting something out into the open could result in jailtime for airtime.
What is libel? It is “a public and malicious imputation of a crime, or 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” (Article 353, Revised Penal Code).
There are essentially 4 elements, namely: (a) the allegation of a discreditable act or condition concerning (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice(Brillante vs. Court of Appeals, supra). Thus, for an imputation to be libelous, it must be defamatory, malicious, published, and the victim is identifiable (Binay vs. Secretary of Justice, G.R. No. 170643, September 8, 2006).
THE FIRST ELEMENT: MAKING THE MALICIOUS IMPUTATION
Examples of the first element in the Philippine setting are as follows: referring to someone as a swindler, a murderer, a bigamist, of engaging in influence peddling or accusing someone of winning elections through fraud and vote buying, of engaging in lascivious or immoral habits, of borrowing money with no intention to pay, of ordering teeth to be fixed without paying the fees for it, calling a person a bastard or a leper, a “coward, vile soul, dirty-sucker, savage hog who looks toward the ground” or a witch or a sorceress. (Reyes, The Revised Penal Code, Book II (1981), pp. 921-922 citing cases). Please note that any one of the epithets will do, you don’t have to mention all of them in one go however applicable they may all be.
In a more recent case, a journalist was found guilty of libel against a customs lawyer, for accusing him of “being involved in criminal activities” of “using his public position for personal gain,” calling him “an embarrassment to his religion, saying “ikaw na yata ang pinakagago at magnanakaw sa miyembro nito,” accusing him further of “stealing from the government with his alleged corrupt activities.” After the lawyer filed suit, he wrote to challenge the lawyer saying, “Nagalit itong tarantadong si xxx dahil binabantayan ko siya at in-expose ang kagaguhan niya sa [Bureau of Customs].” (Tulfo vs. People et al, G.R. No. 161032, September 16, 2008)
SECOND ELEMENT: PUBLICATION
Publication is the communication of the defamatory matter to some third person or persons. This can be through writing a letter containing the defamatory imputation to a person other than the person defamed (Reyes, supra, citing People vs. Atencio, CA-G.R. Nos. 11351-R to 11353-R, December 14, 1954).
The reason for this requirement is that a communication of the defamatory matter to the person defamed cannot injure his reputation although it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him (Magno vs. People, G.R. No, 133896, January 27, 2006). Having a sound reputation does pay since a scoundrel would have nothing to protect and can have no cause to complain of defamation.
THIRD ELEMENT: IDENTITY
Someone else must be able to tell that the libel concerns you. It is not enough if you feel alluded to. It is not sufficient that the offended party recognized himself as the person attacked or defamed; it must be shown that at least a third person could identify him as the object of the libelous publication.
But you don’t have to be expressly named. Some would try to avoid prosecution by using indirect language or by means of blind items. It has been held that in order to maintain a libel suit it is essential that the victim be identifiable, although it is not necessary that he be named. It is enough if by intrinsic reference to the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if he is pointed out by extraneous circumstances so that the person knowing him could and did understand that he was the person referred to.
FOURTH ELEMENT: MALICE
In GMA Network, Inc. vs. Bustos, G.R. No. 146848, October 17, 2006, the Court discussed two types of malice, one which may be presumed and the other which has to be proven:
“Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in law). Malice, as we wrote in Brillante v. Court of Appeals, is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous or defamatory remarks made the same with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.”
Please note that the presumption is that every defamatory imputation is malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in cases concerning privileged communications (Article 354, Revised Penal Code). Hence, the burden of proving justifiable motive is upon the author of the libel (Daez vs. Court of Appeals, G.R. No. 47971, October 31, 1990).
But, where the communication is privileged, malice is not presumed from the defamatory words. The presumption of malice does not arise in the two cases of privileged communication, to wit:
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 (Article 354, Revised Penal Code).
However, libelous remarks or comments connected with the matter privileged under the above-cited provisions, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability (Article 362, RPC). The Court in Lu Chu Sing v. Lu Tiong Gui clarified that the fact that a communication is privileged does not mean that it is not actionable; the privileged character of the communication simply does away with the presumption of malice, and the plaintiff has to prove the fact of malice in such case (Brillante vs. Court of Appeals, G.R. No. 118757 & 121571, October 19, 2004).
Why should you not give in to your impulses? If libel is committed by means writings or similar means,  the penalty is imprisonment ranging from 6 months and 1 day to 2 years to 11 months and 10 days or the payment of a fine ranging from 6,000 to 9,000 pesos or both imprisonment and a fine. Damages may also be recovered against you by the offended party in the criminal proceeding or as a separate civil action.
The fine does not seem that big but any period of incarceration is a substantial deterrent not to say something no matter how tempting it might be to do so. So the rule of thumb may be: do you really need to say it and is it worth it? You can always just think it. In the words of the Court, the “law permits us to think as badly as we please of our neighbors so long as we keep our our uncharitable thoughts to ourselves  It may really be wise to hold our peace and not say our piece against someone.
 Reyes, Ibid,. at 925, citing Kunkle vs. Cablenews-American, 42 Phil. 757.
 Reyes, Ibid., at 925-926, citing Corpus vs. Cuaderno, Sr., 16 SCRA 807.
 ARTICLE 355. Libel by means writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.
 Reyes, Ibid., p. 1008.
 Article 360, Revised Penal Code and Article 33, New Civil Code.
 Ibid, citing People vs. Atencio. p. 824