Counter Affidavit For Libel 2.docx

COUNTER AFFIDAVIT REPUBLIC OF THE PHILIPPINES ) PROVINCE OF __________________ ) S.S. __________________ ) x-----------------------------------x I, __________________, of legal age, married, and a resident of ______________________, after having been sworn to in accordance with law hereby depose and state: 1. That I am the respondent in the criminal complaint for Libel, docketed as __________________, andfiled by complainant__________________; 2. I vehemently deny the allegations raised by the complainantin his complaint-affidavit that I committed the crime he is now imputing against me. No proof was ever presented by the complainant that I wrote and distributed a publication called the __________________ and the __________________. As a matter of fact, if we are to examine their attached Annexes “D” and “E”,nowhere does it state in these publication thatthat I am the author, editor or publisher of the __________________. 3. The only evidence of the complainant in linking me to the statements complained of were the alleged admission before __________________, and the CCTV footage purportedly showing that I distributed copies of the __________________. A copy of an audio recording of the alleged admission was submitted by the complainant to the Honorable Prosecutor as his Annex “F” whereas, in lieu of the said CCTV footage, only screenshots thereof were presented by the complainant as his Annex “G”. 4. It must be pointed out that the said recording, which consisted of a mere thirteen (13) seconds, did not establish the identities of the persons speaking, the date and time it was taken and where the conversation or recording took place. Most importantly, there was no proper authentication by the person who actually made the recording and neither was there a declaration that the sound recording represents a true portrayal of the voices contained therein. 5. As held by the Honorable Supreme Court in the case of Torralba v. People, G. R. No. 153699, August 22, 2005: “It is generally held that sound recording is not inadmissible because of its form where a proper foundation has been laid to guarantee the genuineness of the recording.In our jurisdiction, it is a rudimentary rule of evidence that before a tape recording is admissible in

evidence and given probative value, the following requisites must first be established, to wit: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions, or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.”(Emphasis and underscoring supplied) 6. For in truth and in fact, the said recorded conversation, which the complainant submitted as evidence in the instant proceedings, was obtained illegally, in violation of R.A. 4200 or the Anti-Wire Tapping Act, considering that it was made without the knowledge and consent of any or all of the parties to that conversation. 7. As held by the Honorable Supreme Court in the case of Ramirez v. Court of Appeals and Garcia, G.R. No. 93833 September 28, 1995: “Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. The afore-stated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is

underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" under this provision of R.A. 4200.” (Emphasis and underscoring supplied) 8. Section 4 of R.A. 4200 declares that any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the Anti-Wire Tapping Act shall not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or investigation. This includes, with all due respect, the instant proceedings or investigation being conducted by the Honorable Prosecutor. 9. Similarly, the Honorable Prosecutor should not give weight to the complainant’s allegation of a CCTV footage which was never presented in evidence. It must be stressed that only screenshots coming from the alleged CCTV footage were submitted and yet, the same were not properly authenticated by the person who actually made the CCTV recording and its subsequent conversion to photographic images. Neither was it established that the video recording or the photos produced therefrom were accurate reproductions of the CCTV footage. 10. Complainant’s Annex “G” failed to satisfy the requirements for authentication set by the Honorable Supreme Court, in light of its foregoing pronouncement, and pursuant to the Rules on Electronic Evidence. Simply put, the said evidence cannot be relied upon, absent their requisite authentication, in view of the fact that: (i) the manner of preservation of the recording that could ensure their trustworthinesswas not properly observed, and (ii)there is no guarantee that the CCTV footage and the resultant photos were not manipulated, altered, or otherwise falsified after their creation, andthat the subject photos are faithful excerpts of the CCTV footage which fairly and accurately represent the event in question. 11. Be that as it may, an examination of the __________________ would show that the statements found therein were reasonably worded— without the use of unnecessary, discrediting, or defamatory remarks. There was never an instance that the aforesaid publication cast aspersion on the character, integrity and reputation of the complainant thereby exposing him to public ridicule. In fact, the tenor of the __________________was to basically encourage homeowners of __________________tovoice their questions and concerns so that they can be properly addressed and resolved. These statements are not malicious in nature for the purpose of discrediting the complainant, but were done for the purpose of protecting the interests

of the homeowners as a wholeand are thus, in the nature of a privileged communication and not libelous. 12. To qualify as privileged communication under Article 354 of the Revised Penal Code the following elements must be present: (1) 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; (2) 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; and (3) the statements in the communication are made in good faith and without malice (as discussed in Binay v. Secretary of Justice, G.R. No. 170643 September 8, 2006). 13. In the case at bar, the publication of the __________________ was made under a legal, moral, or social duty to protect the interest of the homeowners, particularly, to ensure that their funds are properly managed. 14. Secondly, the statements made in the __________________ are fair comments directed to the Board of Directors of __________________, in reminding them that they occupy a position of responsibility and that they have a fiduciary duty to the homeowners—in short, they are required to be accountable, transparent and fair in all their dealings, and to act in the best interests of the homeowners. 15. Thirdly, the statements in the subject publication were made in good faith and without malice. In order to constitute malice, ill will must be personal. So if the ill will is engendered by one's sense of justice or other legitimate or plausible motive, such feeling negates actual malice (as discussed in Mendez v. CA and People, G.R. No. 124491. June 1, 1999). 16. An essential element in Libel is the existence of malice when the public and malicious imputation was made. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed(Ledesma vs. Court of Appeals, 278 SCRA 656). 17. This notwithstanding the fact that the complainant did not even make a categorical denial of the truth of the allegations stated in the subject publication. Thus, the burden of proving the truth of the alleged imputations did not shift to the party publishing the __________________. 18. Clearly, the presumption of malice is done away with when the alleged defamatory imputation is a qualified privileged communication.

19. Lastly, it must be emphasized that “While probable cause should be determined in a summary manner, there is a need to examine the evidence with care to prevent material damage to a potential accused’s constitutional right to liberty and the guarantees of freedom and fair play, and to protect the State from the burden of unnecessary expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges.” (Tan vs. Matsuura et. al., G.R. Nos. 179003 and G.R. No. 195816, January 9, 2013). WHEREFORE, premises considered, it is most respectfully prayed that the instant complaint for Libel, be DISMISSED for utter lack of meritand the absence of probable cause. IN TRUTH OF THE FOREGOING, I have hereunto set my hand this _____________ at _____________________, Philippines.

__________________ Affiant SUBSCRIBED AND SWORN TO BEFORE ME, this ______________ at ______________, Philippines. I hereby certify that I personally examined the affiant and that I am fully convinced that he executed this Counter-Affidavit freely and voluntarily and that he fully understood what were stated herein.