EN BANC

G.R. No. 164845 - WILLIAM TIENG, WILSON TIENG and WILLY

TIENG, petitioner, v. HON. JUDGE SELMA PALACIO-ALARAS, in
her capacity as Presiding Judge of Makati City RTC, Branch 62 and
HILARION HENARES, [JR.], respondents.

G.R. No. 181732- WILLY TIENG,petitioner, v. HILARION HENARES,

JR., respondent.

G.R. No. 185315 -HILARION HENARES, JR.,petitioner, v. WILLIAM

TIENG, and PEOPLE OF THE PHILIPPINES, respondents.

Promulgated:
July 13, 2021
x-----------------------------------------------------ci~ ------x

SEPARATE CONCURRING OPINION

LEONEN,J.:

I agree with the finding that Article 360 of the Revised Penal Code, as
amended, operates to impose jurisdictional venue requirements upon charges
of libel committed through radio and television broadcasts. However, Article
360, as adapted by the ponencia for radio and television, cannot extend to libel
committed through the internet, despite referring to the Rule on Cybercrime
Warrants to address the dilemma presented in Bonifacio et al., v. RTC Makati. 1

While libel committed through radio or television broadcast encounters

the same issues as cyber libel when situating the place of printing and first
publication, substantial differences between the two modes place cyber libel
beyond the ponencia 's proposed solution. I reiterate, as I have discussed in
previous separate opinions, that libel is best decriminalized.

The consolidated Petitions before this Court involve complaints for

libel filed by William Tieng, Willy Tieng and Wilson Tieng ( collectively, "the
Tiengs") against Hilarion Henares, Jr., (Henares) for the latter's allegedly
libelous statements on radio and television broadcasts.

G.R. No. 185315 involves criminal charges for libel against Henares ;J
for libelous remarks allegedly uttered against the Tiengs on his November 29, A
634 Phil. 348 (20 I 0) [Per J. Carpio-Morales, First Division].
Separate Concurring Opinion 2 G.R. Nos. 164845,181732 and 185315

2001 radio show. This information was eventually docketed as Criminal Case
No. 02-0194 before Branch 274 of the Parafiaque City Regional Trial Court. 2

Henares moved to quash the information, arguing that it failed to state

that the libelous remarks ·were printed and first published within the trial
court's territorial jurisdiction, or that the private complainant resided within
the same location when the crime was committed. Henares argued that these
statements were jurisdictional under Article 360 of the Revised Penal Code,
and the information should have been dismissed for failing to allege these. 3

The Regional Trial Court rejected Henares' arguments and maintained

that Article 360 of the Revised Penal Code applied specifically to written
defamation and not those made through radio broadcasts. Hence, Rule 110,
Section 15 of the Rules of 1Criminal Procedure governs. the standards for the
information's sufficiency. 4 The Court of Appeals subsequently denied
Henares' Petition for Certiorari under Rule 65 and maintained the trial court's
jurisdiction. 5

Thus, Henares filed a Petition for Review under Rule 45 with this
Court, assailing the Court o:f Appeals' Decision and Resolution. 6 On the other
hand, both the Tiengs and the Office of the Solicitor General, as respondents,
counter that there are "judicially-recognized distinctions between radio and
print media" 7 in support of their argument that Article 360's jurisdictional
requirements for libel complaints are limited to written defamations. 8

G.R. No. 181732 involves three libel complaints for Henares'

statements on his radio and. television programs, which allegedly impeached
the integrity of Willy Tieng. The complaints led to three informations filed
against Henares in the I'viakati City Regional Trial Court. These were
eventually docketed as Cdminal Case No. 02-3585, for statements Henares
allegedly made on his television program on November 28, 2001, and
Criminal Cases Nos. 02-3586 and 02-3587, for statements Henares allegedly
made on his November 28 and 29, 2001 radio broadcasts, respectively. 9
Henares moved to quash the informations but the trial court denied this as it
found the allegations therein sufficient to confer jurisdiction upon it. 10

In Henares' s subsequent Petition for Certiorari, the Court of Appeals

opposed the trial court's ruiing and held that "cases of written libel" included
"written defamation and other similar means under Article 355" of the

4
Ponencia, p. 3.
Id. at 3-4.
Id. at 4.
I
5
Id. at 4-5.
6
Id. at 5.
7
Id. at 6.
8
Id. at 5-7.
9
Id. at 7-10.
10
Id.at 10.
 Separate Concurring Opinion 3 G.R. Nos. 164845, 181732 and 185315

Revised Penal Code. 11 It found that "other similar means" included

defamation through "radio, phonograph ... or any similar means." Hence, the
informations should state that the libelous remarks were printed and first
published within the Makati Regional Trial Court's territorial jurisdiction, or
that any of the private complainants resided within the same territory when
the crime was committed.

Thus, Willy Tieng (Willy) filed a Petition for Review under Rule 45
with this Court, questioning the Court of Appeals' Decision to dismiss the
criminal charges against Henares. Willy argues against the broadened
interpretation of Article 360 which allowed its application to Henares'
statements made on radio and television. In any event, Willy argues that first
publication of Henares' statements should be deemed to include "all areas
covered by the radio and television stations' frequcncies[.]" 12

Finally, G.R. No. 164845 involves a civil complaint for damages

docketed as Civil Case No. 02-359 before Makati Regional Trial Court
Branch 62, arising from the same remarks subject of Criminal Case Nos. 02-
3585 to 3587, and one other instance of defamation allegedly committed by
Henares on November 23, 2001, without a "criminal case counterpart." Civil
Case No . 02-359 was later consolidated with another libel complaint docketed
before Makati Regional Trial Court Branch 145 as Criminal Case No. 02-
1103, which sprung from Henarcs' statements against the Tiengs in his
November 28, 2001 radio broadcast. 13

After the consolidation of the cases in Makati Regional Trial Court

Branch 62, Henares moved for their dismissal arguing that the "venue was
improperly laid" because the complaint failed to allege the jurisdictional
venue requirements provided by Article 360 of the Revised Penal Code. 14

Branch 62 dismissed Civil Complaint 02-359 for "lack of jurisdiction

and improper venue," 15 finding that Article 360 requires the civil action for
libel to be filed with the same court that first acquired jurisdiction over the
criminal action, or vice-versa. Since the Tiengs already had Criminal Case
No. 02-0194 filed with Branch 274 of the Parafiaque Regional Trial Court,
Branch 62 dismissed Civil Case No. 02-359 without prejudice to its refiling
in Parafiaque. 16 Both parties moved for reconsideration of the trial court's
Decision, but both were denied. 17
)
11
Id. at I I.
12
Id. at 12.
1
3 Id. at 12- 13.
4
1 Id. at 13- 14 .
15
Id. at 14 .
16 Id.
17 Id.
Separate Concurring Opinion 4 G.R. Nos. 164845,181732 and 185315
1

Thus, the Tiengs filed a Petition for Certiorari under Rule 65 with this
Court, arguing again that the jurisdictional requirements in Article 360 of the
Revised Penal Code applied_ only to written defamation. In any event, the
Tiengs argue that since venue is not jurisdictional in civil cases, it can be
waived. Thus, Henares should be deemed to have waived any issues on venue
when he filed his Answer and Pre-Trial Brief before the trial court. 18

In response, Henares counters that he did not waive his objections to

the improperly laid venue because he included these objections as affirmative
defenses in his Answer. 19

With these, the ponencia aptly summarized the issues as follows:

1. Whether the rules of venue and jurisdiction provided under Article 360
of the Revised Penal Code apply to radio and television broadcasts;
2. Whether the RTC of tvfakati, Branch 62 dismissal of Civil Case No. 02-
359 was in accordance with Article 360 of the Revised Penal Code; and
3. Whether under Artide 3 60 of the RPC, venue of the civil action is also
jurisdictional. 20

I agree with the ponencia 's disposal of the stated issues. Libelous
remarks made through radio and television broadcasts are subject to the
jurisdictional venue rules provided in Article 360 of the Revised Penal Code,
as amended by Republic Act No. 4363.

However, I hold concerns regarding the ponencia 's treatment of

problems arising from the prosecution of cyber libel, which points to a need
for further discussion.

II

The ponencia aptly found that Article 360 of the Revised Penal Code
also applies to libelous rem.arks made through television or radio broadcasts,
despite the provision's language which indicate a focus on written defamation.
I agree that the Judiciary has the duty to ascertain the purpose of the laws
· sought to be applied, and to give effect to these purposes once determined. 21

In view of the parties' contentions regarding the applicability of Article /

360, Agbayani v. Sayo 22 explained the purpose for Republic Act No. 4363 's -- -
enactment:

18
Id. at 15-16.
19
Id. at 16.
zo Id.
21
Sarcos v. Castillo, 136 Phil. 244 (1969) [Per J. Fernando, En Banc].
22
178 Phil. 574 (1979) [Per J. Aquilno, Second Division].
 Separate Concurring Opinion 5 G.R. Nos. 164845,181732 and 185315

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
pmiy 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 distantplace.

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[.] 23 (Citations omitted,
emphasis supplied)

Thus, Article 360 of the Revised Penal Code was enacted to minimize
or prevent the possibility of inconveniencing or harassing an accused by
allowing the offended party an indiscriminate choice of venue in filing libel
actions. The ponencia correctly recognized that the dangers of filing libel
suits for harassment exist just as much, if not more so, for broadcast media
like television and radio. 24 As discussed in Bocobo v. Estanislao: 25

It is the contention of respondents that the alleged libel, having

arisen form a radio broadcast, is triable by a municipal court, for in a later
portion of Article 360 the phrase "by other similar means," is not repeated
thus leading them to conclude that it is only where there is "defamation in
writing" that there is conferment of exclusive jurisdiction in a coUii of first
instance. Such an argument does not carry weight. It loses sight of the basic
purpose of the act, namely, to prevent inconvenience or even harassment to
those w1fortunate enough to be accused of libel, ff any municipal court
where there was publication could be chosen by the complainant as the
venue. Since a radio broadcast may be spread.far and wide, much more so
than in cases of newspaper publications, it is not difficult to imagine how
deplorable the effect would be for one indicted.for such an offense even if
he could rely on a sound and valid offense. 26 (Citations omitted, emphasis
supplied).

It was therefore proper and consistent with the purpose of amending

Article 360 to extend the jurisdictional venue requirements to charges for libel
committed through radio or television broadcasts.
I
23
Id. At 579-580.
24
Ponencia,p. 18.
25
164 Phil. 516 (1976) [Per J. Fernando, Second Division].
26
Id. at 520.
~ i

Separate Concurring Opinion 6 G.R. Nos. 164845, 181732 and 185315

III

I also agree that Bonifacio, et al. v. RTC Makati2 7 supports the

ponencia 's reading of Article 360's expanded scope. In Bonifacio, the
representative of the Yuchengco Group of Companies filed complaints for
libel against the trustees, offi cers, and members of Parents Enabling Parents
Coalition, Inc. (Coalition). The criminal complaints charged the Coalition
with publishing and maintaining several articles on its websites that
supposedly damaged the reputation of the Yuchengcos and that of the
companies they owned.

The Coalition eventually moved to quash the informations for failure

to designate an offense, and for failure "to allege a particular place within the
trial court's jurisdiction where the subject article was printed and first
published or that the offended parties resided" 28 within the territorial
jurisdiction of the trial court at the time of the offense's commission.

In its ruling, this Court in Bonifacio first laid down the requirements
and purpose of Article 360 of the Revised Penal Code, as amended:

It becomes clear that the 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. The Amended Information in the present case opted to lay the
venue by availing of the second. Thus, it stated that the offending article
"was first published and accessed by the private complainant in Makati
City." In other words, ' it considered the phrase to be equivalent to the
requisite allegation of pr:i nting and first publication .

Clearly, the evil sought to be prevented by the amendment to Article

360 was the indiscriminate or arbitrary laying ofthe venue in libel cases in
distant, isolated or.far}/'ung areas, meant lo 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. 29 (Ci tations omitted, emphasis supplied)

However, it also recognized the problems with locating the place of

printing and first publicati on of allegedly libelous internet articles:

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 o.fdetermining the situs of its printing andfirst publication.
I
27
634 Phil. 348 (2010) [Per J. Carp io-Moral es, First Division] .
28
Id . at 356.
29
Id . at 361-362.
1 {

Separate Concurring Opinion 7 G.R. Nos. 164845,181732 and 185315

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.

For the Court to hold that the Amended b1formation sufficiently

vested jurisdiction in the courts of Makati simply because the defamatory
article was accessed therein would open the floodgates to the libel suit
being filed in all other locations where the pepcoalition website is likewise
accessed or capable o,f being accessed. 30 (Emphasis supplied)

Thus, the Court in Bonifacio had no choice but to dismiss the

informations for insufficiency of their allegations as to the venue. The
ponencia correctly noted that Bonifacio was promulgated before the
enactment ofRepublic Act No. 10175, 31 which now provides the penalties for
cyber libel. Recognizing A1iicle 360's inadequacy in dealing with cyber libel,
the ponencia directed issues of venue in cyber libel to Section 2.1 of the Rule
on Cybercrime Warrants. 32

However, I opine that the problem of locating the situs of printing and
first publication remains a persistent problem when filing charges for cyber
libel.

IV

Section 2.1 of the Rule on Cybercrime Warrants provides the venue of

actions for crimes covered by Chapter II, Sections 4 and 5 of Republic Act
No. 10175, including cyber libel:

Section 2.1 Venue of Criminal Actions. - The criminal actions for

violation of Section 4 (Cybercrime offenses) and/or Section 5 (Other
offenses), Chapter II of RA 1175, shall be filed before the designated
cybercrime court of the province or city where the offense or any of its
elements is committed, or where any part of the computer system used is
situated, or where any ofthe damage caused to a natural or juridical person
took place: Provided, that the court where the criminal action is first filed
shall acquire jurisdiction to the exclusion of the other courts.

All other crimes defined or penalized by the Revised Penal Code, as

amended, and other special laws, committed by, through, and with the use
ofICT, as provided under Section 6, Chapter II or RA10175, shall be filed
before the regular or other specialized regional trial courts, as the case may
be. (Emphasis supplied) //
30
Id. at 362-363.
31
Ponencia, pp 21-22.
32
RULE ON CYBERCRIME WARRANTS (A.M. No. 17-11-03-SC), Section 2.1.
',

Separate Concurring Opinion 8 G.R. Nos. 164845,181732 and 185315

While Section 2.1 attempts to lay a venue for libel committed through
the internet, the nature of cyberspace and of the content that may possibly be
published on it, poses problems distinct to cyber libel.

The peculiarities of social interactions on online platforms are

discussed in a previous separate opinion. 33 .

Social media allows users to create various groups of various sizes.

Some of these sites are for specific purposes. Others are only open to a
select group of "friends" or "followers". The ponencia's distinction
between the author and those who share (or simply express their approval)
ofthe posted message oversimplifies the phenomenon ofexchanges through
these sites.

These platforms in social media allow users to establish their own

social network. It enables instantaneous online interaction, with each social
networking platform thrlving on its ability to engage more and more users.
In order to acquire more users, the owners and developers of these social
media sites constantly provide their users with more features, and with more
opportunities to interact. The number of networks grows as each participant
is invited to bring in more of their friends and acquaintances to use the
platforms. Social media platforms, thus, continue to expand in terms of its
influence and its ability to serve as a medium for human interaction. These
also en.courage se(fexpression through words, pictures, videos, and a
combination c~f these ge,1'1:res.

A post, comment or status message regarding government or a

public figure has the tendency to be shared. It easily becomes "viral. "
After all, there will be rnore interest among those who use the internet with
messages that involve issues that are common to them or are about people
that are known to ther:r1 - usually public officers and public figures. 34
(Citations omitted, emphasis supplied)

Internet content can take many forms, be posted or published

instantaneously from anywhere, and spread exponentially without action from
the original author or publisher. Problems of extraterritoriality also arise
when seeking to file libel charges for online content:

Then, there is the problem of extraterritoriality and the evils that it

spawns on speech. En.fhrcement of the crime of libel will be viable only if
the speaker is within our national territory. Those residing in other
countries are beyond our jurisdiction. To be extradited, they will have to
have laws similar to ours. If they reside in a state different from our 1930

33
J. Leonen, Separate Concun-ing and Dissenting Opinion in Disini v. Secretary of Justice, 727 Phil. 28
&
(2014) [Per J. Abad, En Banc].
34
Id.at377-381.
\

Separate Concurring Opinion 9 G.R. Nos. 164845,181732 and 185315

version of libel, then we will have the phenomenon of foreigners or

expatriates having more leeway to criticize and contribute to democratic
exchanges than those who have stayed within our borders. 35 (Emphasis
supplied)

These aspects of the internet, and of content published thereon, fall

beyond Article 360's ability to address. In my opinion, the ponencia was
correct to refer issues of venue to the Rule on Cybercrime Warrants but was
also prudent in withholding a statement of categorical solutions to the problem
of laying the venue for cyber libel prosecution.

Under Section 2.1 of the Rule on Cybercrime Warrants, the complaint

for cyber libel shall be filed with the designated cybercrime court of the city
or province: 1) Where the offense or any of its elements is committed; 2)
where any part of the computer system used is situated; or 3) where any of the
damage caused to a natural or juridical person took place.

Content on the inten1et, once published, is published everywhere it may

be accessed, and all at once. Publication on the internet is also facilitated by
an array of interconnected systems and equipment that may be hosted
anywhere within the Philippines' territorial jurisdiction, or even beyond it.
Recourse to internet protocol addresses may also be circumvented by proxy
address services and vi1iual private networks. Thus, the first and second rules
for determining venue of cyber libel charges are hardly specific when dealing
with the nature of online content. This lack of specific standards in
determining venue may result in giving unreasonable discretion to the
offended party when determining the venue of an action for cyber libel.

The third rule, which looks at where damage was incurred, is essentially
the place where the offended pa1iy may have first accessed the allegedly
libelous online content. The argument that the place of first access is the place
of first publication was already rejected in Bonifacio:

For the Court to hold that the Amended Information sufficiently

vested jurisdiction in the courts of Makati simply because the defamatory
article was accessed therein would open the floodgates to the libel suit being
filed in all other locations where the pepcoalition website is likewise
accessed or capable of being accessed. 36

Laying venue under the third rule would, therefore, give rise to the very
same problems sought to be prevented by the amendments to A1iicle 360 of /J
the Revised Penal Code. ):

35
Id. at 381-382.
36
Bonifacio v. Regional Trial Court of Makati, 634 Phil. 348, 363 (20 I 0) [Per J. Carpio-Morales, First
Division].
Separate Concurring Opinion 10 G.R. Nos. 164845,181732 and 185315

The foregoing discussion highlights the insufficiency of our prevailing

rules on the prosecution of cyber libel. These discrepancies point to the need
for this Court to take every opportunity to either re-examine existing rules, or
seriously consider the decriminalization of libel.

I maintain my posrt10n in a prior op1mon that libel, as currently

provided for in the Revised Penal Code, and as re-enacted in Chapter II,
Section 4(c)(4) of Rept:Lblic Act No. 10175, should be declared
unconstitutional:

The crime of libel in its 1930 version in the Revised Penal Code was
again reenacted through the Cybercrime Prevention Act of 2012. It simply
added the use of the internet as one of the means to commit the criminal
acts. The reenactment (?l these archaic provisions is unconstitutional for
many reasons. At minilnum, it.failed to take into consideration refinements
in the interpretation of the old law through decades of jurisprudence. It
now stands starkly in contrast with the required constitutional protection of
freedom of expression.

It is difficult to accept the majority's view that present jurisprudence

is read into the present version of the law. This is troubling as it is
perplexing. The majorrt:y of the 200 plus members of the House of
Representatives and the 24 Senators chose the old text defining the crime of
libel. The old text does not coriform to the delicate balance carved out by
jurisprudence. Just the sheer number of distinguished and learned lawyers
in both chambers would rule out oversight and negligence. As
representatives of our people, they would have wanted the crime to be
clearly and plainly spelk:d out so that the public will be properly informed.
They could not have wanted the ordinary Filipino to consult the volumes of
the Philippine Reports in order to find out that the text did not mean plainly
what it contained before they exercised their right to express.

With the definite evolution of juri:-,prudence to accommodate free

speech values, it is clear that the reenactment of the old text of libel is now
unconstitutional. Articles 353, 354, and 355 of the Revised Penal Code -
and by reference, Section 4( c)4 of the law in question - are now overbroad
as it prescribed a definition and presumption that have been repeatedly
struck down by this court for several decades.

A statute falls under the overbreadth doctrine when "a governmental

purpose may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms." Section 4( c)4 of Rep.
Act No. 10175 and Artic:le 252, 254, and 255 produce a chilling effect on
speech by being fatally inconsistent with Ayer Productions as well as by
imposing criminal liability in addition to civil ones. Not only once, but
several times, did this court uphold the freedom of speech and expression
under Article III, Section 4 of the 1987 Constitution over an alleged
infringement of privacy or defamation. This trend implies an evolving
y
rejection ofthe criminal nature of libel and must be expressly recognized in
C:

Separate Concurring Opinion 11 G.R. Nos. 164845,181732 and 185315

view of this court's duty to uphold the guarantees under the Constitution. 37
(Emphasis supplied, citations omitted)

Alternatively, a civil action for damages provides adequate protection

against one who allegedly defames another, while continuing to uphold the
primacy of Constitutionally protected free speech:

Libel law now is used not so much to prosecute but to deter speech.
What is charged as criminal libel may contain precious protected speech.
There is very little to support the view of the majority that the law will not
continue to have this effect on speech.

This does not mean that abuse and unwarranted attacks on the
reputation or credibility of a private person will not be legally addressed.
The legal remedy is civil in nature and granted in provisions such as the
Chapter on Human Relations in the Civil Code, particularly Articles 19, 20,
and 21[]

The state's interest to protect private defamation is better served

with laws providing for civil remedies for the affected pmiy. It is entirely
within the control of the offended party. The facts that will constitute the
cause of action will be narrowly tailored to address the perceived wrong.
The relief, whether injunctive or in damages, will be appropriate to the
wrong.

Declaring criminal libel as unconstitutional, therefore, does not

mean that the state countenances private defamation. It is just consistent
with our democratic values. 38 (Emphasis supplied, citations omitted)

Until such a time that the rules for prosecuting cyber libel are clearly
and specifically threshed out, or until criminal libel is declared
unconstitutional, the courts will have to make do with the ponencia 's
discussion of Article 360's extended applicability only to radio and television
broadcasts.

IN VIEW OF THE FOREGOING, I concur in the result.

Associate Justice

37
J. Leanen, Separate Concurring and Dissenting Opinion in Disini v. Secretary of Justice, 727 Phil. 28,
366-375 (2014) [Per .J. Abad, En Banc].
38
Id. at 388-392.