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 __________________, and filed by complainant
__________________;

2. I vehemently deny the allegations raised by the complainant in 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 that that 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, quasi-
judicial, 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 trustworthiness was
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, and that 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
__________________ to voice 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 whole and 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 merit and 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.