Persons responsible, A360 Revised Penal Code

1. Persons responsible

Article 360. Persons responsible. – Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

(Revised Penal Code)

The following may be criminally liable for defamation:

1) Those who publish;

2) Those who exhibit;

3) Those who cause the publication or exhibition of any defamation in writing or by similar means;

4) The author or editor of a book or pamphlet;

5) The editor or business manager of a daily newspaper, magazine or serial publication (as if they were the author). (REVISED PENAL CODE, Paragraphs 1 and 2, Article 360)

2. Criminal and civil action

Article 360. Persons responsible. x x x

The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law.

(Revised Penal Code)

a. Legislative history

The original Article 360 of the Revised Penal Code was amended by R.A. 4363 to forestall harassment in the venue for filing criminal actions as explained in the Agbayani case.

Agbayani v. Sayo, G.R. No. L-47880, April 30, 1979, Per Aquino, J.:

• Article 360 in its original form provided that the venue of the criminal and civil actions for written defamations is the province wherein the libel was published, displayed or exhibited, regardless of the place where the same was written, printed or composed. Article 360 originally did not specify the public officers and the courts that may conduct the preliminary investigation of complaints for libel.

• Before article 360 was amended, the rule was that a criminal action for libel may be instituted in any jurisdiction where the libelous article was published or circulated, irrespective of where it was written or printed.. Under that rule, the criminal action is transitory and the injured party has a choice of venue.

• Experience had shown that under that old rule the offended party could harass the accused in a libel case by laying the venue of the criminal action in a remote or distant place.

• To forestall such harassment, Republic Act No. 4363 was enacted. It lays down specific rules as to the venue of the criminal action so as to prevent the offended party in written defamation cases from inconveniencing the accused by means of out-of-town libel suits, meaning complaints filed in remote municipal courts (Explanatory Note for the bill which became Republic Act No. 4363, Congressional Record of May 20, 1965, pp. 424-5; Time, Inc. vs. Reyes, L-28882, May 31, 1971, 39 SCRA 303, 311).

1) To avoid harassment

Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge. (Bonifacio v. RTC Makati Branch 149 [2010], supra.)

b. Rules on venue

Venue is jurisdictional in criminal actions such that the place where the crime was committed determines not only the venue of the action but constitutes an essential element of jurisdiction.33 This principle acquires even greater import in libel cases, given that Article 360, as amended, specifically provides for the possible venues for the institution of the criminal and civil aspects of such cases. (Bonifacio v. RTC Makati Branch 149, G.R. No. 184800, May 5, 2010, Per Carpio-Morales, J.)

The rules on venue in article 360 may be restated thus:

1. Whether the offended party is a public official or a private person, the criminal action may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published.

2. If the offended party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense.

3. If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila.

4. If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense. (Chavez v. CA, G.R. No. 125813, February 6, 2007, Per Tinga, J., citing Agbayani v. Sayo, G.R. No. L-47880, April 30, 1979)

The rules, as restated in Agbayani, do not lay a distinction that only those actions for criminal libel lodged by public officers need be filed in the place of printing and first publication. In fact, the rule is quite clear that such place of printing and first publication stands as one of only two venues where a private person may file the complaint for libel, the other venue being the place of residence of the offended party at the time the offense was committed. (Chavez v. CA [2007], supra.)

c. Public official

The venue of libel cases where the complainant is a public official individual is limited are as follows:

1) In the Court of First Instance of the province or city where the libelous article is printed and first published;

2) If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila.

3) If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense. (See Chavez v. CA [2007], supra.)

d. Private individuals

[T]he venue of libel cases where the complainant is a private individual is limited to only either of two places, namely:

1) Where the complainant actually resides at the time of the commission of the offense; or

2) Where the alleged defamatory article was printed and first published. (Bonifacio v. RTC Makati Branch 149 [2010], supra.)

1) Complainant’s actual residence

If the venue for criminal action for defamation is based on where actual residence, the complainants must duly prove that such was their residence when the offense was committed. These could be via testimonial evidence such as their own testimony coupled with other residents or neighbors, or documentary evidence such as lease contract if they are renting.

NB: The provision requires residence, and not domicile. A person may have multiple residences at any given time, but only has one domicile.

2) Where printed and first published

If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published, as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass. (Bonifacio v. RTC Makati Branch 149 [2010], supra.)

a) Website on the Internet

The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenez’s premise of equating his first access to the defamatory article on petitioners’ website in Makati with “printing and first publication” would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website. (Bonifacio v. RTC Makati Branch 149 [2010], supra.)

e. Necessary allegations

In order to obviate controversies as to the venue of the criminal action for written defamation, the complaint or information should contain allegations as to whether, at the time the offense was committed, the offended party was a public officer or a private individual and where he was actually residing at that time. Whenever possible, the place where the written defamation was printed and first published should likewise be alleged. That allegation would be a sine qua non if the circumstance as to where the libel was printed and first published is used as the basis of the venue of the action. (Agbayani v. Sayo, G.R. No. L-47880, April 30, 1979, Per Aquino, J.)

Agbayani v. Sayo, G.R. No. L-47880, April 30, 1979, Per Aquino, J.:

• In the instant case, the venue was laid in Nueva Vizcaya. It was alleged in the information that the libel was committed in Bambang, a town located in that province. It was not alleged that at the time the libel was committed Bambang was the actual residence of complainant Mahinan or that it was the place where the libel was printed and first published or where Mahinan held his office.

• The alleged defamatory documents quoted in the information do not justify the filing of the information in the Court of First Instance of Nueva Vizcaya. Thus, as already noted, the affidavits of the accused, Bautista and Pascual, both dated October 6, 1975, were subscribed and sworn to at Cagayan Isabela before the municipal judge thereof. The “Unusual Incident Report” submitted by the accused, Agbayani, also quoted in the information and likewise alleged to be defamatory, was subscribed and sworn to before a Manila notary on October 3, 1975. That report indicates Cauayan, Isabela as the place where Mahinan held office. Bambang, Nueva Vizcaya was not mentioned at all in those alleged defamatory documents.

• We hold that the information in this case is defective or deficient because it does not show that the Court of First Instance of Nueva Vizcaya, where it was filed, has jurisdiction to entertain the criminal action for written defamation initiated by Mahinan against the petitioners and that the provincial fiscal of that province had the authority to conduct the preliminary investigation.

• Consequently, the trial court erred in not sustaining petitioners’ motion to quash on the grounds of lack of jurisdiction and lack of authority to file the information (Sec. 2[b] and [c], Rule 117, Rules of Court).

• The allegation in the information that the libel was committed in Bambang, Nueva Vizcaya is not sufficient to show that the Court of First Instance of that province has jurisdiction over the case. The alleged libelous documents quoted in the information show that Nueva Vizcaya is not the proper venue of the criminal action.

3. Provincial or city fiscal

Article 360. Persons responsible. x x x

Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this article.

(Revised Penal Code)

For criminal action based on written defamations, the following may conduct the preliminary investigation:

1) Provincial fiscal;

2) City fiscal;

3) Municipal court of the city/capital of the province where such action may be instituted.

4. Complaint by offended party

Article 360. Persons responsible. x x x

No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).

(Revised Penal Code)

A criminal action for defamation may only be expressly filed by the offended party. Thus, unlike other crimes which may be prosecuted de oficio by the State, a criminal action for defamation requires the offended parties to institute themselves the criminal case.