Mike Navallo, ABS-CBN News
Katigbak, Jumilla urge Taguig prosecutor to dismiss cyber libel complaint
There was nothing defamatory nor malicious in the article that the website of ABS-CBN News published regarding the complaint filed against Energy Secretary Alfonso Cusi before the Office of the Ombudsman, two ABS-CBN executives said Monday.
“The News Article is not defamatory. The News Article did not make any imputation whatsoever against Sec. Cusi. ABS-CBN News simply reported the filing of the graft complaint against Sec. Cusi, among other respondents, over the sale of Chevron’s stake in the Malampaya project to Dennis Uy’s Udenna Corp.,” ABS-CBN president and chief executive officer Carlo Katigbak and ABS-CBN News Digital executive editor Lynda Jumilla said in their joint counter-affidavit, subscribed to before Taguig City senior assistant city prosecutor Irish-Kay Del Valle.
A copy of the counter-affidavit was later sent by registered mail to Cusi on Thursday.
“ABS-CBN News summarized and quoted the contents of the Graft Complaint, without giving any remark or opinion as to their truthfulness or falsity. ABS-CBN did not make any conclusion or finding as to Sec. Cusi’s guilt or innocence,” they added.
Cusi’s complaint stemmed from an October 19, 2021 article published on ABS-CBN News’ website about the graft complaint filed by three individuals against Cusi, Uy and other respondents before the Office of the Ombudsman in Iloilo.
Cusi is accused of “gross inexcusable negligence” in supposedly allowing Udenna’s purchase of Chevron’s 45% stake in the Malampaya gas project and in allegedly failing to exercise the government’s right to purchase the shares.
The graft complaint also claimed the DOE under Cusi bent the rules to approve the transaction in favor of Uy’s company, which supposedly led to about P21 to P42 billion in losses a year for the Philippine government.
Another Uy subsidiary subsequently bought Shell’s 45% share but the Philippine National Oil Company-Exploration Corporation, which owns the remaining 10% share, withheld its consent in December amid the ensuing controversy.
In his complaint against ABS-CBN Corp., Katigbak and Jumilla, Cusi said the story damaged his reputation and good standing in government and asked for P200 million in damages.
In their joint counteraffidavit, Katigbak and Jumilla rejected Cusi’s assertion as “false and baseless.”
Aside from arguing there was no defamatory imputation in the article as it was a straightforward report, the two pointed out, it was not them but the graft complaint that accused Cusi of wrongdoing.
A defamatory statement is one of the key elements in a libel charge and involves imputing a crime, discreditable act or condition on another person.
That person must however be identified and the allegations published. In the case of cyber libel, the statements should be made through a computer system or similar means.
Another important element is malice. Actual malice means that the libelous remark was made with the knowledge that the statement was false or with reckless disregard as to the truth or falsity of the allegation.
Malice is normally presumed in every defamatory imputation but Katigbak and Jumilla argued, the article was a privileged communication which takes away the presumption and requires Cusi to prove there was actual malice.
The article, according their counteraffidavit, was a fair and true report without any comments or remarks of a judicial and official proceeding. It was based on an actual complaint filed before the Office of the Ombudsman in Iloilo and presented the DOE’s side in the article.
To show good faith, they cited articles on the issue published by other news entities and several other articles that ABS-CBN News published showing Cusi’s side.
Katigbak and Jumilla also argued Cusi is a public official and the story was about an official undertaking of the DOE — the sale of a substantial portion of the Malampaya project.
No less than the Supreme Court, they said, has recognized that it is in fact a citizen’s “civic duty” to ensure that “public duty is discharged faithfully and well by those on whom such duty is incumbent.”
To prove actual malice, Cusi complained that he should have been asked directly regarding the alleged anomalies in the sale of the shares in the Malampaya project.
But Katigbak and Jumilla pointed out ABS-CBN News asked him personally about his position on the issue through an October 20, 2021 interview on the program Headstart on its subsidiary, the ABS-CBN News Channel/Sarimanok News Network, Inc.
The same interview became the basis of an online article.
“Thus, contrary to Sec. Cusi’s allegations that ABS-CBN News did not get his side of the story, ABS-CBN News in fact gave Sec. Cusi several opportunities to share his response to the Graft Complaint. ABS-CBN News even published an entire news article to allow Sec. Cusi to air his side,” they said.
Katigbak, who is sued as representative of the corporation, also stressed that a company president or CEO like him is not even among the persons responsible for libel under the Revised Penal Code, which only listed the publisher, author or editor of a book, and editor or business manager of a publication as responsible for libel.
He maintained he had no prior knowledge, involvement or participation in the posting of the news article.
Both Katigbak and Jumilla urged the prosecutor to junk the cyber libel complaint due to the absence of probable cause to file it in court.
“[T]he purpose of a preliminary investigation is to ‘shield the innocent from precipitate, spiteful and burdensome prosecution.’ We submit that this Honorable Office should dismiss the Complaint-Affidavit and spare us the hardship and anxiety of a public trial,” they said.
Katigbak and Jumilla emphasized the importance of examining libel cases through the lens of press freedom, particularly when it comes to public officials and the discharge of their functions.
“Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted,” they said, quoting a 1918 Supreme Court case reiterated in so many libel cases.
Cusi’s complaint is separate from the cyber libel case filed by Uy against the same respondents and ABS-CBN reporter Anjo Bagaoisan before the Davao City prosecutor’s office.
The respondents filed their joint counter affidavit for that complaint earlier this month.
Cusi’s lawyer, incidentally also Uy’s lawyer, initially claimed in an interview on ANC Rundown in December last year that at the time the article in question was published, there was no actual complaint yet filed against Cusi.
But his claim was immediately debunked by Atty. Rico Domingo, a lawyer for the 3 complainants against Uy and Cusi, presented a copy of their complaint stamped received October 18, 2021, by the Office of the Ombudsman, a day before the articles on the complaint came out.
Various groups have denounced Uy’s and Cusi’s libel complaints against different media entities as “harassment” suits meant to intimidate and muzzle the press.
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