On
Requirement of Publicity

 ART.354

Kinds of privileged communication:
1. Absolutely privileged – not actionable even if the actor has acted in bad faith;
2. Qualifiedly privileged – those which, although containing defamatory imputations, are not actionable unless made with malice or bad faith.

General Rule: Every defamatory imputation is presumed malicious, even if it be true, if no good intention and justifiable motive for making it is shown.

Exceptions:
1. private communication in performance of legal, moral or social duty
2. Requisites:

a. That the person who made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld;
b. That the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter; and
c. That the statements in the communication are made in good faith without malice in fact.

3. fair and true report of official proceedings, made in good faith, without any comments and remarks

4. Requisites:
 
a. That the publication of a report of an official proceeding is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions;
b. That it is made in good faith; and
c. That it is made without any comments or remarks

Prosecution must prove malice in fact to convict the accused in case of qualified privileged communication.

The privilege simply does away with presumption of malice.

Absolute Privileged Communication: not actionable even if done in bad faith – statements made by members of Congress in discharge of functions, Judicial Proceedings when pertinent and relevant to subject of inquiry

Qualified privilege is lost by proof of malice

Applying to wrong person due to honest mistake does not take case out of the privilege

Unnecessary publicity destroys good faith

Defense of privileged communication in paragraph 1: will be rejected if it is shown that accused acted with malice in fact and there is no reasonable ground for believing the charge to be true(for example, no personal investigation made; probable cause in belief is sufficient)

Malice in fact: rivalry or ill-feeling existing at date of publication, intention to injure the reputation of
offended party, motivated by hate and revenge

In proceedings, communication/ pleadings/others must be pertinent and material to subject matter to be covered by privilege.

Only matters which are not confidential in nature may be published.

Defamatory remarks and comments on the conduct or acts of public officers which are related to the discharge of their official duties will not constitute libel if defendant proves the truth of imputation; any attack upon private character on matters not related to discharge of official duties may be libelous.

Conduct related to discharge of duties of public officers are matters of public interest.

Mental, moral and physical fitness of candidates for public office may be object of criticism; criticism – does not follow a public man into his private life and domestic concerns.

Statements made in self defense or in mutual controversy are often privileged; person libeled is justified to hit back with another libel.

However, retaliation and vindictiveness cannot be basis of self-defense in defamation; self-defense must be on matters related to imputations made on person invoking defense.

He who published what is true, and in good faith and for justifiable ends, incurs no responsibility.