"In their joint counter-affidavit, respondents Karen A. Pagsolingan and Ferdinand "Bong" Godinez avers that they are the managing editor and staff writer of www.pep.ph or PEP, respectively. They are being sued for the article entitled "Instant Classic: Richard Gutierrez reportedly involved in a heated squabble with Micahel Flores," which was published in the website www.celebritypulp.com. Not having any affinity with the publisher of www.celebritypulp.com, they cannot be made liable for the questioned article that appeared thereat. They allege that read in its entirely, the article did not impute any discreditable act or condition to any person, much less to complainant. The article in no way made it appear that he or any of the celebrities with him are troublemakers. Further, there is nothing discreditable in the words "heated altercation," "squabble," "gun-toting incident" and "fracas." They claim that the words used in the article cannot validly be taken out of context and arbitrarily interpreted in order to support a person's claim for libel. The said article never identified or pointed to complainant as the person who supposedly toted the gun.

"On the other hand, in his reply-affidavit, complainant contends that the existence and publication of the subject article is beyond question, as per the admission of respondents. Despite the removal of said article online, the damage to his reputation has been done. He alleges further that malice attended the publication of the subject article because respondents had knowledge of the falsity of their story. The words employed in said article, taken as a whole, strongly imply or suggest to a reader of ordinary intelligence that a deadly weapon was used in an incident involving him, which negatively affects, if not directly assails, his wholesome public image. Jeffrey Smith Quizon, a.k.a. Epy Quizon and Leon G. Martinez, a.k.a. Leo Martinez corroborated complainant's claim that no such "heated altercation" "squabble," "gun-toting-incident," or "fracas" happened between him and Michael Flores.

"At the outset, it bears to stress that the truth or falsity of the alleged libelous statements in the subject article is not the issue in the instant case, as the same can only be threshed out in a full-blown trial. The issue in the instant case is whether or not the facts and allegations therein presented by the parties are sufficient to engender a well-founded belief that the crime of libel has been committed, and that respondents are probably guilty thereof and should be placed on trial therefor.

"Libel, as defined under the Revised Penal Code, is 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 cause the dishonor, discredit, or contempt of a natural or judicial 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.

"Although elements (b) and (c) may appear to be present in the subject article, elements (a) and (d) was not sufficiently established.

"A charge of libel is sufficient if the words are designed to induce its audience, or the public, to suppose and understand that the person against whom they are 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 (U.S. vs. O'Connel, 37 Phil. 767). The subject article, when read and taken in its entirety in its plain, natural and ordinary meaning, as they would naturally be understood by persons reading them, contained no imputation of a crime, or of a vice or defect, or of any act or omission that would cause dishonor, discredit or contempt to the person of the complainant. Aside from the opportune allegations of complainant, no evidence was presented which would prove that a reasonable mind, in this case, that of the public or the readers, would believe that complainant was a troublemaker based on the statements in the questioned article. At the very least, the subject article contained a report from two (2) witnesses who relayed the information to PEP, which report was neither confirmed nor denied by the latter because the incident was still being investigated upon "at press time."

"Which brings us to element (d) — existence of malice. There are two (2) types of malice—malice in law and malice in fact. Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm (Heirs of Purisima Nala vs. Cabansag, G.R. No. 161188, June 13, 2008).  It is a positive desire and intention to annoy and injure (Cook vs. East Shore Newspapers, 327 III App. 559, 64 N.E. 2d 751). It may denote that (respondents) was actuated by ill will or personal spite (Freeman vs. Mills, 97 Cal. App. 2d 161 217P. 2d 687).

"Annex E of the complaint-affidavit is the best evidence to show that the act of respondents in uploading the subject article was not attended by malice in fact. In the subject article, it says "PEP—who caught sight of Richard Gutierrez leaving the event together with Bubbles Paraiso and Michelle madrigal, at press time, is still investigating the said incident." Indeed, records show that PEP contacted the persons involved in the disputed incident. Complainant's witness and his reported adversary, Michael Flores, confirmed that respondent Pagsolingan called him to inquire about the same at or about 5:45pm. Thereafter, respondent Maglipon had the report/article pulled out immediately from the website, and apologized for the same. Clearly, this is sufficient evidence to show that respondents have no desire to deliberately injure the reputation of complainant.

"Neither is there malice in law. While malice in law is presumed, this does not arise if it is in connection with the public life or the conduct of a public figure. A public figure is a person who by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a "public personage." He is, in other words, a celebrity. Obviously, to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional basketball player, a pugilist, or any other entertainer (Ayer Production Pty. Ltd. vs. Capulong, 160 SCRA 861). It includes, in short, anyone who has arrived at a position, where the public attention is focused upon him as a person (supra).

"Further, the Supreme Court, citing the prominent American legal commentator, Cass Sunstein, said that a person counts as a public figure (1) if he is a "public official" in the sense that he works for the government, (2) if, while not employed by government, he otherwise has pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular controversy in order to influence its resolution. Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from recovering against a magazine that portrays him as having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False speech directed against public figures is thus protected from Libel actions except in quite extreme circumstances (Guinguing vs. Court of Appeals, G.R. No. 128958, September 30, 2005).

"Indeed, there is no mistaking that respondents committed a lapse in their reportage of what actually transpired on the night of March 28, 2009. However, this lapse does not constitute an imputation of a discreditable act by either complainant, or his alleged adversary, Michael Flores, and neither was it shown that this was committed with malice. Being a public figure, complainant ought not to be onion-skinned and be able to absorb the thrust of public scrutiny.

"Also, it is worthy to mention that the identity of the writer/author was not established. Nowhere in the said article does it show that respondents Maglipon, Pagsolingan and Godinez wrote the same. What was clearly established is that respondent Maglipon is the editor-in-chief, and thus, was included in the charge.

"Finally, the purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. The determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial is an executive function exclusively of the prosecutor. In fact, the prosecutors findings on what constitutes sufficient evidence as will establish probable cause for the filing of the corresponding complaint or information against an offender are not subject to review by the courts. Corollary then, prosecuting officers has the duty not to prosecute when, after investigation or reinvestigation, they are convinced that the evidence adduced was not sufficient to establish a prima facie case (Glaxosmithkline Phils., Inc. vs. Khalid Mehmood Malik, 499 SCRA 268).

"WHEREFORE, the foregoing considered, the complaint by Richard R. Gutierrez against respondents Jo-Ann Q. Maglipon, Karen A. Pagsolingan, and Ferdinand "Bong" Godinez for violation of Article 353 of the Revised Penal Code is DISMISSED for lack of probable cause."

According to PEP's legal counsel, Atty. Sandy Coronel, "Under DOJ Circular No. 70, the Complainant may file an appeal with the Secretary of Justice within fifteen (15) days from receipt of this Resolution. Thus, we will have to wait for the expiration of the said period for the dismissal to become final."