EXPLAINER: Why Tomas Osmeña's cyber-libel lawsuit vs Jun Alcover failed. Mayor in 2019 sued councilor, when (1) the FB post wasn't libelous per se and (2) correction or clarification would've worked too. But then Alcover, in 2016, also sued Tomas.

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KEY POINTS. [1] There was no defamation, Ombudsman says, in Councilor Pastor Alcover Jr.'s 2019 post. The anti-graft office chose not to look at the other elements of libel. And no libel, no misconduct.

[2] As a public official, Tomas Osmeña as mayor could've just corrected and criticized Alcover, another public official. But then Alcover earlier, in 2016, sued Osmeña too on four counts.

[3] Had Alcover's comment been published in daily news media, the news outlet might have been included in the mayor's lawsuit, as they were in previous libel complaints.

WHAT JUST HAPPENED. The Ombudsman dismissed twin complaints filed with Ombudsman in 2019, during the political season, by then mayor Tomas Osmeña against then city councilor Pastor Alcover Jr. for something that Alcover said, which Osmeña alleged he didn't say, and "maligned his reputation."

The Ombudsman resolution was dated February 11, 2022 but released only last Friday, July 8. The resolution signed by Ombudsman Samuel Martires ruled (1) there was no defamation and the complaint of cyber-libel had no legal basis, and (2) the councilor didn't commit grave misconduct or violate code of conduct for government officials and employees.

'OFFENSIVE' POST ABOUT ATENEO BULLY. More than three years ago, on February 15, 2019 -- just before the May elections -- Osmeña alleged that Alcover posted on Facebook the mayor's photo with a statement purportedly defending the act of bullying against an Ateneo high school junior student in December 2018. The supposed Tomas quote: "This boy was not really bullying, he was just teaching a lesson. Ateneo and the Jesuits are close to my heart. I know they will get through with this." Also in the post were the heading "Anong say nyo???" and a still photo from the video -- showing the classmate bully and the victim in the school's bathroom -- with the logo of Osmena's party BOPK.

Osmeña said Alcover made it appear that the mayor condoned bullying. "The quote was fake, (the post) is a work of fiction and thus devoid of any truth." Alcover as a councilor shouldn't have circulated fake news, Tomas said.

NO DEFAMATION: 'MERE CONJECTURE.' The Ombudsman ruling said that Osmeña "failed to persuade their office that the post made by the respondent is defamatory."

Alcover, the ruling said, never made "any defamatory imputation of a crime allegedly committed by the complainant" or, per the Revised Penal Code list, of "any vice or defect, real or imaginary..." or "any act, omission, condition, status of, or circumstances" about Osmeña. The mayor's claim -- that the councilor made it appear that Tomas condoned bullying -- was "just a mere conjecture." "Just na, mere pa," the Ombudsman's way of emphasis.

NOT DEFAMATORY PER SE. To the Ombudsman, the Alcover post was not libelous per se. It was not defamatory on sight. Maybe an implied criticism of Osmeña's supposed view on bullying and the Ateneo incident but not an outright and direct assault on the mayor's character.

Courts give a lot of leeway on public discourse. Complaints of libel preferably shall be about clear, explicit, direct, blunt act of damaging reputation or character, not just implied or inferred from a statement or image. It has to be injurious from the viewpoint of persons other than the complainant.

Osmeña, one may recall, sued in 2015 the late broadcaster-newspaper columnist Bobby Nalzaro over the phrase "manufactured charges." Osmeña, Nalzaro then wrote, "manufactured" some of the charges against a city treasurer. The court found no defamation there and thus no libel. I commented then that Nalzaro said worse, even patently harsher slander, on radio but not in that newspaper column Tomas griped about.

RULING DIDN'T TAKE UP RELATED ISSUES. Other questions the case could've taken up and clarified for media and non-media users of the internet:

[1] MALICE. It was most likely, if not obvious, Alcover had some ill-will in connecting the "fake" Osmeña quote to the Ateneo bullying incident. The two rival politicos had been trading accusations in public, especially in that election year (2019), and even filed complaints before the Ombudsman against each other. Earlier, in 2016, Alcover -- tagged in some news reports as Tomas's "arch critic" -- filed four complaints against the mayor, from allegedly putting up cash reward for police who killed criminals to holding flag ceremonies only once a month. (It's not known how those cases ended up.)

In the Ateneo bullying case, since defamation was absent or not proved, the Ombudsman saw no need to look at the element of malice. But those two public officials clearly hated each other and used the courts to express their anger. Still, well-meaning constituents would rather have Tomas and Jun air their views, even unleash figurative punches, on media platforms without resorting to litigation.

[2] CONDUCT AS COUNCILOR. Was Alcover's comment on social media part of his conduct as councilor, which must conform to the prescribed code for government officials and employees?

The councilor said his FB post had nothing to do with his being a city legislator (aside from claiming, rather lamely, that he wasn't the one who posted it and quickly taking it down). The mayor must have thought the FB comment reflected on Alcover's behavior as councilor; that's why he also charged him with grave misconduct.

The Ombudsman ruling didn't tackle that issue anymore. Without the offensive post, there was no assailable behavior. It would've been interesting though to know if Alcover sanctioned for what he posted, if it were proved that it was libel.

ALSO NOT YET KNOWN was where Alcover got the supposed Osmeña quote or whether he just made it up. The Ombudsman ruling didn't think that was relevant anymore.

Jun, a former national legislator as party-list congressman, is back in the City Council as Cebu City north councilor, #8. He lost his bid for a Sanggunian seat in 2019 (#13), the same year Osmeña sued him for cyber-libel, but so did Tomas, in his race for mayor against Edgardo Labella.

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