CHAPTER 8 TORTS WITH INDEPENDENT CIVIL ACTIONS INDEPENDENT CIVIL ACTION One that is brought distinctly and separately

from a criminal case allowed for considerations of public policy because the proof needed for civil case is less than that required for criminal cases Example: Even if an accused in a criminal case is acquitted of the crime of malversation because of the failure of the prosecutor to prove criminal intent to establish the guilt beyond reasonable doubt, the offended party may still file a civil action to recover the funds disbursed by him without prior authority Independent Civil Action includes: Violation of civil rights Violation of political rights Defamation Concept: The underlying principle under consideration is to allow the citizen to enforce his rights in a private action brought by him regardless of the action of the State Attorney. x x x while the State is the complainant in the criminal case, the injured individual is the most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which particularly affects him. - (Report, p. 46, Civil Code Commission) 2 views: Former Senator Tolentino: that civil actions are ex-delicto (civil liability arising from delict). According to Justice Caguioa : that civil liability arises not from crime but the tortious actions more of the nature of culpa aquiliana. ARTICLE 32 provides for an independent civil action for violation of civil and political rights. Rationale: because the Fiscal is burdened with too many cases or because he believed the evidence was insufficient, or as to few fiscals on account of a disinclination to prosecute a fellow public official, especially when he is of high rank, no criminal action was filed by the prosecuting attorney. the requirement of proof beyond reasonable doubt often prevented the appropriate punishment direct and open violation of the Penal Code trampling upon the freedom named are not so frequent as those subtle, clever and indirect ways which do not come within the pale of penal laws. Neglect of public officers Fraud Physical injuries

 normally involves intentional acts but can also be committed through negligence, thus good faith on the part of the defendant does not necessarily excuse such violation; liability for violation of any of these rights are directed against public officers or employees and private individuals; a person may also be liable whether his participation is direct or indirect; MH Garments vs. CA Petitioners were indirectly involved in transgressing the right of private respondents. It was appellant corporations instance that the Philippine Constabulary soldiers conducted the raid and effected the illegal seizure. Obra vs. CA There was no other forseeable consequence, when the general indorsed the letter, but the eventual seizure of the truck. Lim vs. Ponce de Leon Madela was led to believe that there was legal basis and authority to impound the motor launch. Face with a possible disciplinary action from his commander, Maddela was left with no alternative but to seize the vessel. Aberca vs Ver Suspension of the writ of habeas corpus does not destroy every persons right and cause of action for damages for illegal arrest and detention and other violations of his consitutional right. The doctrine of state immunity applies only if the acts involved are done by officers in the performance of official duties within the ambit of their powers. The doctrine of state immunity applies only if the acts involved are act done by officers in the performance of official duties within the ambit of their powers. Examples of violations: 1. Due Process - an injured person can file an action for damages if he was deprived of his property without due process of law 2. Search and Seizure - the right of the citizen against unreasonable searches and seizure . _________________________________ A good name is more desirable than great riches; to be esteemed is better than silver or gold. PROVERBS 22:1 Article 33 Defamation, Fraud and Physical Injuries Defamation - Invasion of the interests in reputation and good name, by communication to others which tends to diminish the esteem in

which the plaintiffs held, to excite adverse feelings or opinions against him. Publication of statement which tends to lower a person in the estimation of right-thinking members of society generally or which tends to make them shun or avoid that person Liability is brought about by the desire to protect the reputation of every individual

KINDS OF DEFAMATION 1. SLANDER or ORAL DEFAMATION 2. LIBEL OR WRITTEN DEFAMATION (Art 353 of the RPC) - a public and malicious imputation of a crime, or of 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 PERSONS LIABLE under Art 360 of the RPC Any person who shall publish, exhibit, or cause the publication or exhibition; Author or editor of the book or pamphlet Editor or business manager of a daily newspaper, magazine or serial publication

Article 354, RPC Every defamatory imputation is presumed to be malicious even if it be true Borjal v Court of Appeals 301 SCRA 1 January 14, 1999 Facts: A civil action for damages based on libel was filed before the court against Borjal and Soliven for writing and publishing articles that are allegedly derogatory and offensive against Francisco Wenceslao, attacking among others the solicitation letters he send to support a conference to be launch concerning resolving matters on transportation crisis that is tainted with anomalous activities. Wenceslao however was never named in any of the articles nor was the conference he was organizing. The lower court ordered petitioners to indemnify the private respondent for damages which was affirmed by the Court of Appeals. A petition for review was filed before the SC contending that private respondent was not sufficiently identified to be the subject of the published articles. Issue: Whether or not there are sufficient grounds to constitute guilt of petitioners for libel. Ruling: 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 also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. These requisites have not been complied with in the case at bar. The element of identifiability was not met since it was Wenceslaso who revealed he was the organizer of said conference and had he not done so the public would not have known. The concept of privileged communications is implicit in the freedom of the press and that privileged communications must be protective of public opinion. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable

imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. The questioned article dealt with matters of public interest as the declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. Respondent is also deemed to be a public figure and even otherwise is involved in a public issue. The court held that freedom of expression is constitutionally guaranteed and protected with the reminder among media members to practice highest ethical standards in the exercise thereof. Forms: a). The facilities of the mass media i.e print and broadcast media such as articles, news items, columns, caricatures, editorials in newspapers and magazines; comments, opinions, news aired over the television or radio stations b). Modern communication facilities such as through the internet or cellphones, CDs, DVDs c). Literary outlets such as through letters, books, poems, songs, stage plays, movies, paintings, drawings, pictures, sculpture and the like Elements: A. First Element: There must be a defamatory imputation 1. This means that the matter claimed to be libelous must impute a crime, vice, defect, or any act, or omission, condition, status or circumstance, tending to cause the dishonor, discredit or contempt to a natural or juridical person, or to blacken the memory of one who is dead. The purpose is to lower the esteem or honor, or respect, in which a person is regarded, such as: a). The victim is humiliated or publicly embarrassed; b). The victim is vilified, hated, becomes the subject of gossip, nasty stories, suspected of wrongdoings, is avoided; c). The victim losses face, becomes a laughing stock, is the object of ridicule. 2. Rules to determine whether the language is defamatory or not: a). What should be considered is what the matter conveyed to a fair and reasonable man and not the intention of the author or the accused. b). Statements should not be interpreted by taking the words one by one out of context; they must be taken in their entirety. c). Words are to be given the ordinary meaning as are commonly understood and accepted in the in daily life. The technical meanings do not apply. This is especially true to idiomatic sayings. Thus Babae ng Bayan does not mean a heroine. Hayok sa Laman does not mean a meat eater. Adu client nya nga pagbigasan 3. How the imputation is made: a). By the use of direct and express defamatory words, descriptions or accusations. Examples: (i). He is a thief, swindler, babaero, ugly, wife beater, a crook (ii) drawing a caricature of a person depicting him as a crocodile b). By the use of Figures of Speech such as:

(i) Hyperbole - exaggeration according to which a person is depicted as being better or worse, or larger or smaller than is actually the case. Example: (a). Mr. X is the gambling lord (b) She is the mother of all cheaters. (c) Praise undeserved is slander in disguise. (ii) Irony or sarcasm or where words are used to convey a meaning contrary to their literal sense. Examples: (a). Maria belongs to the ladies called Kalapating mababa ang lipad (b). Dont bother asking him for a treat. He is boxer ( i.e stingy or a miser) (c) He has a face only a mother can love (d) She is my wife when she is beside me, yours when she is near you. (e). She is very famous because she is a public sweetheart. 4. What are not defamatory a) Expressions of an opinion made by one who is entitled to state an opinion on a subject in which he is interested. Examples: (i) An heir writes that their was unfairness in the distribution of the properties (ii) A lady complains over the radio that there was discrimination against Cordillera girls women in the selection of candidates to the Miss Baguio Pageant (iii). A law student writes in the school news organ that he believes the faculty in the college of law are generally lazy and are not kept abreast with new jurisprudence (iv). A teacher declared in an interview that the students of one school are less intelligent than those in another school B. Second Element: Publicity of the Libelous Matter 1. This means the accused caused the libelous material to be known or read or seen or heard by a third person, other than the person to whom it has been written i.e. the victim. Somebody must have read, seen or heard the libelous material due to the acts of the accused. (A). The addressing of defamatory words directly to the person concerned, and to no other person, does not constitute an actionable libel. (B). If it was the victim himself and not the accused, who showed, informed or relayed the libelous material to others, then the accused is not liable. (C). Circulation or publicity is not necessarily through the newspaper. (D). Examples: i). Posting the material in the internet or posting in a bulletin board ii). Showing the caricature, or naked picture, of the victim to another iii) Announcements in the radio, or paid advertisements such as The public is warned not to purchase the skin lotion products of ABC Corp. to prevent possible cancer 2. Effect: Each separate publication of a libelous matter is a separate crime, whether published in part, or in the same newspaper. Example: (i) There as many crimes of libel as there are various showing or staging of a libelous drama or stage play in different venues and at various times. (ii) If the same libelous news is published in two or more newspapers, then there be such number of separate libels corresponding to the different newspapers which published the material. C. Third Element: The Person libeled must be identified. (Identity of victim) 1. This means the complainant or plaintiff must prove he is the person subject of the libelous matter, that it his reputation which was targeted.

2. This element is established by the testimony of witnesses if the complainant was not directly mentioned by name. They must be the public or third persons who can identify the complainant as the person subject of the libel. If third persons can not say it is the plaintiff or complainant who is the subject, then it cannot be said that plaintiffs name has been tarnished. a). Where the publication is ambiguous as to the person to whom it applies, the testimony of persons who read the publication is admissible for the purpose of showing who is intended to be designated by the words in said publication 3. How the identification or referral to the plaintiff is made a). Directly by his name; b). By descriptions of his person, his address, nature of his office or work, his actions, or any other data personally connected or related to the plaintiff; or identification from similar other the circumstances; c) From the likeness of his face or features to the libelous drawing, caricature, painting or sculpture. 4. The victims maybe natural persons who are alive or juridical persons, or deceased persons as to their memory. 5. Rule if several persons were defamed or libeled a). If several persons were libeled in one article, but all are identifiable, then there are as many charges of liable as there are persons libeled b). If the article is directed to a class or group of several persons in general terms only without specifying any particular member, there is no victim identified or identifiable, hence there is no actionable libel. No person can claim to have been specifically libeled as to give that person the right to file charges of libel. Examples: (i). Some lady students in the 4th year law class section A, are ugly; (ii). Two thirds of the law students are cheaters; (iii). Majority of the policemen are crooks c). If the defamation is directed against a group or class and the statement is so sweeping or all-embracing as to apply to every member of that group or class, then any member can file an action for libel in his own name, not in the name of the group/class. (Note: Philippine laws do not recognize group libel). Or if the statement is sufficiently specific so that each individual can prove that the statement specifically point to him then he may bring an action in his own name. Examples: (i). All those belonging to 4th year law class section A are sex perverts; (ii) Each and every employee in the accounting office is secretly taking home part of the tuition fees paid; (iii) If you are a faculty member of the college of law of U.B. then you have no integrity but you are a yes-man of the school President D. Fourth Element: That there be malice on the part of the accused. 1. Malice is the legal term to denote that the accused is motivated by personal ill-will, spite, hatred, jealousy, anger, and speaks not in response to duty but to do ulterior and unjustifiable harm. The purpose is really to destroy, to injure, to inflict harm. 2. There are two kinds of malice a). Malice in Law or Presumed Malice. (i) The plaintiff need not prove the existence of malice. It is for the accused to disprove this presumption.

(ii) This presumption, that accused was actuated with an evil purpose or malice, arises if the article is defamatory on its face, or due to the grossness of the defamatory imputation even if the facts are true, but there was no good intention or justifiable motive. Examples: (a). X writes an article about the sexual escapades of a society matron complete with the details of time, place, and supported by pictures. In such case the law presumes that X was actuated by malice even if what he wrote is true. (b). X calls the radio and announces that the family of Juan de la Cruz is a family of thieves and crooks. II. The Doctrine of Privilege Communication A. This is a defense against the element of malice and it applies to both libel and oral defamation. This means that even if the material is considered libelous still there is no malice in the eyes of the law. These consist of two kinds: (a) Absolutely Privilege Communication and the (b) Qualifiedly Privileged Communication. B. Absolutely Privileged Communication: this refers to a communication, whether oral or written which is defamatory and may even be made in bad faith but which cannot give rise to either criminal or civil liability. This is because there are higher considerations involved which are considered more paramount than the damage to the reputation of a person. 1. Privilege Speeches in the halls of Congress 2. Communications made by public officers in the performance of their duties, such as the explanations on a matter made by a public officer to his superior though it contains harsh language 3. Statements made in judicial proceedings if pertinent and relevant to the case involved, such as the allegations in the pleadings 4. Statements and evidence submitted in a Preliminary Investigation. C. Qualifiedly/Conditionally Privileged Communication: this refers to communications in which the law presumes the absence of malice, thus they are initially not actionable. The burden therefore is on the plaintiff to prove the existence of actual malice. D. Two Kinds of Qualifiedly Privileged Communications Under Article 354. 1. Private Communications, made by one to another in the performance of a legal, moral or social duty provided that: (i). The one making the communication must have an interest in the subject and (ii) the person to whom the communication was made is one who can act on the matter (a). This communication maybe oral or written, private, public or official document which are sent for redress of grievances or to request for appropriate action. But it must be private in that it is intended to be only between the sender and the recipient. Undue publicity removes the privilege. Hence a so called Open Letter is not privileged. Also, accusations made in a public gathering are not privileged.

(b). The communication must meet these elements: (i). The person who made the communication had a legal, moral or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made (ii). The communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought ( or that the recipient is a proper person who can act on the communication) and Legal duty: presupposes a provision of law imposing upon the accused the duty to communicate. Such as the complaint by a citizen concerning the misconduct of a public official to the latters superior even if, upon investigation, the matters are not substantiated. But it may be shown that the charges were maliciously made without reasonable ground for believing them to be true. Moral or social duty presupposes the existence of a relationship between the sender and the recipient of the communication, or the confidential and pressing urgency of the communication. The sender must have an interest in the subject of the communication and the recipient must be a proper person who can act on the subject to the communication. Thus a letter-complaint describing an SLU law professor as lazy incompetent, and an absentee, is privileged if sent to the SLU President. It is not privileged if sent to the President of U.B. If a teacher writes to his fellow teacher that a student of his is becoming irresponsible and possibly a drug user, the same letter is not privileged. But if sent to the parents of the student for their information and action, it is conditionally privileged. In Alcantara vs. Ponce ( Feb. 28, 2007) the court adopted the ruling in the U.S case of Borg vs. Borg in that a written charge or information filed with the prosecutor or the court is not libelous although proved or be false and unfounded. Furthermore, the information given to a prosecutor by a private person for the purpose of initiating a prosecution is protected by the same cloak of immunity and cannot be used as a basis for an action for defamation. In this Alcantara case, a newsletter submitted by party in a preliminary investigation, which was defamatory, was considered as a privilege communication. It was also ruled that under the Test of Relevancy, a matter alleged in the course of the proceedings need not be in every case material to the issues or be so pertinent to the controversy that it may become the subject of inquiry in the course of trial, so long as they are relevant. 2.-A: A fair and true report of any official proceeding, or of any statement, report, or speech, made thereat (a). The proceeding must not be confidential, such as the hearings before the Senate, as opposed to the close door executive sessions of the senate . Thus if the report is with respect to a public record, it refers only to those made accessible to the public which may be revealed for public interest or protection of the public. (b) The report must be without any unnecessary comment or libelous remarks ( i.e. no editorializing) (c).The report must be accurate and should not intentionally distort the facts. If there is error in the facts reported, the report is still privilege if made in good faith (d) Examples: News report of a judicial proceeding, including the filing of a complaint in court; or what a witness testified; or of a verbal and heated argument between two councilors during the session of the city council.

(e). This defense apply most often to members of the media who write on said matters or report them as news 2-B. Fair and True Report of the Official Acts of a Public Official (a). The public and official acts of a public official, including his policies, are legitimate subjects of comments and criticisms, though they may be unfair. Public officials are not supposed to be onion-skinned. Public officials, like Ceasars wife, must be beyond reproach and above suspicion. (b). But the communication may be actionable: (i) If it contains an imputation which is a false allegation of a fact or a comment based on a false supposition (ii). If the attack, criticism or imputation pertains to his private acts or private life, unless these reflect on his public character and image as a public official. (iii) As stated in the U.S. case of New York Times vs. Sullivan, a public official may recover damages if he proves that : the statement was made with actual damage, that is, with knowledge that it was false or with reckless disregard of whether it was false or not Matters Considered Privileged By Jurisprudence 1. Fair Comments on Matters of Public Interest (a) In Borjal vs. Ct. of Appeals, (301 SCRA 1, Jan. 14, 1999) it was held that the enumeration in Article 354 is not an exclusive list of qualifiedly privileged communications because fair comments on matters of public interest are privileged and constitute a valid defense in an action for libel or slander (b). They refer to events, developments, or matters in which the public as a whole has a legitimate interest. Examples (i). A news report on the welfare of youth and students in a school allegedly staffed by incompetents, or a dumping ground of misfit teachers, concerns a matter of public interest. (ii). An editorial criticizing the owner of a ship which sunk, for his delay in extending financial help to the family of the victims, is not libelous as the in action is a matter of public interest. (iii). The arrest and prosecution of law violator is a matter in which the public has a right to know. Thus there is no liability for reporting that a lady was arrested for selling shabu or that a person was charged in court or convicted by a court for Estafa. The persons in question cannot file a case for libel. (iv). A radio announcer lambasts a family for their adamant refusal to vacate and remove their structure inside a park. 2. Comments and Criticisms on the Actuations of Public Figures (a) Public figures refer to people who place themselves in the public limelight or attention either: by nature of their business or activity, or mode of living, or by adopting a mode of profession or calling which gives the public a legitimate interest in his doings, his affairs and in his character or which affect public interest (these are the celebrities), or because they participate in public affairs or regularly and publicly expound their views on public affairs. Examples of the first: movie stars; national athletes; those representing the Philippines in world beauty pageants, Manny Pacquiao; hosts of TV shows/programs such as the Tulfo brothers, musicians, novelists. The spouse of the President is a public figure.

Examples of the second: candidates for an elective position; columnists of national newspapers, TV/radio commentators, Cardinal Sin during his time, Jose Maria Sison. ( b) As with public officials, the imputation maybe actionable if it is (i) a false allegation of fact or (ii) it is based on a false supposition. 3. Justified Libel or the Privilege of a Reply. This is fighting libel with libel. This refer to communications made in response to a libel in order to counter and/or remove the libel, provided it is limited to and related to the defamatory imputation and not unnecessarily libelous. ______________________________________ Fraud Elements of Deceit ( in English Law) 1. The defendant must have made false representation to the plaintiff - can also be made by conduct; - half-truths are actionable if it is such a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false. 1. The representation must be one of fact ; 2. The defendant must know that the representation is false or be reckless about whether it is false ; 3. The defendant must have acted on the false representation; 4. The plaintiff must have suffered damages as a result of acting on the representation . includes the crime of Estafa under the RPC. includes misrepresentation made by sellers and manufacturers. -------------------------------------------------------Physical Injuries include the crime of battery Battery vs Assault Battery - is an intentional infliction of harmful or offensive bodily contact. It is offensive if it offends a persons sense of dignity , even only intended as a joke or a compliment

- can be made by spoken or written words;

Assault - an intentional conduct by one person directed at another which places the latter in apprehension of immediate bodily harm or offensive act includes bodily injuries causing death ARTICLE 34: NEGLECT OF DUTY Article 34 of the NCC When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. intended to afford a remedy against police officers who connive with bad elements, or are simply indifferent to duty. the subsidiary liability of cities and municipalities, is imposed so that they will exercise great care in selecting conscientious and duly qualified policeman and exercise supervision over them in the performance of their duties as peace officers.