As reported earlier, the Department of Justice (DOJ) dismissed the libel suit filed by actor Richard Gutierrez against PEP (Philippine Entertainment Portal) due to "lack of probable cause." (Click here to read related story.)
The DOJ resolution, written by Acting Makati City Prosecutor Mary Jane W. Sytat, dated 30 June 2009, was received by PEP's legal counsel, Atty. Sandra Marie Olaso-Coronel of Yorac Arroyo Chua Caedo & Coronel Law Firm, at 9:10 a.m. today, July 9, 2009.
The DOJ Resolution reads in full:
"For resolution is the complaint filed by Richard R. Gutierrez against respondent Jo-Ann Q. Maglipon, Karen A. Pagsolingan and Ferdinand "Bong" Godinez for violation of Article 353 of the Revised Penal Code [libel].
"Complainant Richard Gutierrez alleges that he is a show business personality currently playing the lead role in GMA 7's teleserye "Zorro," and that he is also a commercial endorser of various products such as Bench, Emperador Brandy, Flawless, Globe Telecoms, Metathione and Unique Toothpaste, to name a few.
"Respondents Jo-Ann Q. Maglipon, Karen A. Pagsolingan and Ferdinand "Bong" Godinez are the editor-in-chief, managing editor and staff writer of' the website Philippine Entertainment Portal (www.pep.ph or "PEP" for brevity), respectively. www.pep.ph is an interactive website that features the latest news and events in Philippine show business. It caters to readers who are interested to know what is happening in show business and its readers want to be continuously updated about the latest news involving celebrities.
"On March 28, 2009, at or about 9:30 pm, complainant attended the birthday party of Direk Mark Reyes at the Oceana Restaurant, Seaside Boulevard, Pasay City, together with his twin brother, Raymond R. Gutierrez and Bubbles Paraiso. This party was attended by other show business personalities, including the cast of "Zorro," namely: Joel Torre, Epy Quizon, Leo Martinez, Michelle Madrigal, and former mainstays of the show "TGIS," namely: Bobby Andrews, Dingdong Dantes and Michael Flores.
"On March 29, 2009, at or about 2:00 am, complainant, along with his "Zorro" co-stars left the party and proceeded to his residence in Dasmariñas Village, Makati City. In the afternoon of the same day, complainant learned through his mother, Ms. Anabelle Rama-Gutierrez, that an article about an alleged incident in the parking lot of the Oceana Restaurant was uploaded and published on www.pep.ph involving him and Michael Flores. The article reads, and thereinafter quoted:
PEP (Philippine Entertainment Portal) received reports alleging that Zorro star, Richard Gutierrez, and former TGIS mainstay, Michael Flores, got into a heated altercation at around midnight, March 29, at the parking lot of the Oceana restaurant located at the Seaside Boulevard in Pasay City.
The two actors were reportedly on their way home after attending the 40th birthday party of director Mark Reyes.
Sources claim that the squabble was marred with heated words being exchanged by both parties and a gun-toting incident. It was still unclear, however, whether the gun belongs to Richard or Michael. Epy Quizon, son of Comedy King, Dolphy, was also reportedly involved in the fracas.
PEP—who caught sight of Richard leaving the event together with Bubbles Paraiso and Michelle Madrigal—at press time, is still investigating the said incident."
"On March 30, 2009, PEP, through respondent Maglipon, published or uploaded a letter on their website admitting the publication of the story. Complainant vehemently denies being involved in the so-called "heated altercation," "squabble," "gun-toting incident," or "fracas" with Michael Flores, or with anyone during the party, or at anytime between March 28 to 29, 2009. Such article is a complete falsehood, a mere fabrication and only a product of respondent's imagination. Through the article, respondents made it appear that complainant is a troublemaker, a very discreditable condition considering his stature as a primetime actor and product endorser. PEP or respondents divulged his identity; and the publication of the discreditable article was attended with malice. Having known him and his family, PEP or respondents, could have easily verified the story, but they did not. In fact, it was complainant's mother who informed respondent Maglipon about the false and malicious article; hence, this complaint for libel.
"Complainant presented affidavits of witnesses Pilar Angela D. Paraiso, a.k.a. Bubbles Paraiso, Marciano Arcega Reyes, a.k.a. Direk Mark Reyes, and Michael John M. Flores, a.k.a. Michael Flores, to support his averments particularly the non-existence of the alleged "heated altercation," "squabble," "gun-toting incident," or "fracas" with Michael Flores.
"Respondent Jo-Ann Q. Maglipon, in her counter-affidavit, avers that she is the editor-in-chief of www.pep.ph or PEP. She vehemently denies any involvement, role or participation in the alleged publication complained as she is neither connected nor affiliated with the website www.celebritypulp.com where the questioned article was purportedly published; therefore, she cannot be held liable for the questioned article appearing thereat. She contends that byvirtue of complainant's being a movie and television personality cum multi-product endorser, complainant is undeniably a public figure, i.e. someone who has himself actively solicited the adulation of the public and consequently arrived, at a position where public attention is focused on him as a person. Even complainant's mother refers to him asthe "number one contract star" of GMA, one of the biggest media network in the country. Undoubtedly, complainant is a celebrity—a public figure. Public figures are deemed to have lost, to some extent, their right to privacy. Movie and television celebrities, such as complainant, enjoy less privacy than private citizens mainly because they themselves sought publicity and consented to it. Thus, showbiz should not be allowed to complain when they in fact receive the publicity they solicited because being such celebrities, their personalities, affairs, acts and conduct become matters of public interest and could no longer be regarded as their private business. Further, members of the press have a protected right under the Constitution, to inform the public about developments involving those celebrities, who have become legitimate mattersof public interest. The reported altercation or exchange of heated words and gun-toting incident of celebrities is a matter of public interest, a story of particular fascination to the readers of www.pep.ph. It is a matter proper subject of media reportage.
"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 theeditor-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 tobelieve 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."