Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

Maria Victoria G. Belo-Henares, A.C. No. 11394

Complainant,

-versus-

Atty. Roberto Argee C. Guevarra,

Respondent,
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

POSITION PAPER

RESPONDENT, by the undersigned counsel and unto this

Honorable Supreme Court, most respectfully submits this position
paper and avers the following to wit:

PREFATORY STATEMENT

The Complainant in this case is MARIA VICTORIA G. BELO-

HENARES, of legal age, married, with post office address at 305
Tomas Morato Ave., cor. Scout Madrian St, South Triangle, Quezon
City, where she could be served with summons and other legal
processes of this Honorable Office.

The Respondent is ATTY. ROBERTO ARGEE C. GUEVARRA,

of legal age, single, with post office address at 98 Hampton Gardens,
Dr. Sixto Antonio Avenue, Pasig City, where he could be served with
summons and other legal processes of this Honorable Office.

STATEMENT OF FACTS

Complainant is the Medical Director and principal stockholder of

the Belo Medical Group, Inc. (BMGI), a corporation duly organized and
existing under Philippine laws and engaged in the specialized field of
cosmetic surgery. On the other hand, respondent is the lawyer of a
certain Ms. Josefina "Josie" Norcio (Norcio), who filed criminal cases
against complainant for an allegedly botched surgical procedure on her
buttocks in 2002 and 2005, purportedly causing infection and making
her ill in 2009. In 2009, respondent wrote a series of posts on his
Facebook account, a popular online social networking site, allegedly
insulting and verbally abusing complainant.

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 The complaint further alleged that respondent posted remarks on
his Facebook account that were intended to destroy and ruin BMGI's
medical personnel, as well as the entire medical practice of around 300
employees for no fair or justifiable cause. Moreover, complainant avers
that respondent, through his Facebook account, posted remarks that
allegedly threatened complainant with criminal conviction, without
factual basis and without proof. Complainant likewise averred that
some of respondent's Facebook posts were sexist, vulgar, and
disrespectful of women. Finally, complainant averred that the attacks
against her were made with the object to extort money from her, as
apparent from the following reply made by respondent on a comment
on his Facebook post.

ISSUES

WHETHER OR NOT THE RESPONDENTS RIGHT TO PRIVACY

WAS VIOLATED WHEN THE COMPLAINANT ACCESSED THE
FORMERS PRIVATE FACEBOOK ACCOUNT.

WHETHER OR NOT THE RESPONDENTS FACEBOOK REMARKS

WERE INTENDED TO DESTROY AND RUIN BMGIs MEDICAL
PERSONNEL AS WELL AS THE ENTIRE MEDICAL PRACTICE OF
AROUND 300 EMPLOYEES.

WHETHER OR NOT SOME OF THE RESPONDENTS FACEBOOK

POSTS WERE SEXIST, VULGAR AND DISRESPECTFUL TO
WOMEN.

WHETHER OR NOT THE RESPONDENTS FACEBOOK REMARKS

THREATENED THE COMPLAINANT OF CRIMINAL CONVICTION
WITHOUT FACTUAL BASIS AND WITHOUT PROOF.

WHETHER OR NOT AN ATTEMPT OF EXTORTION WAS MADE

BASED ON THE COMMENT POSTED BY THE RESPONDENT ON
HIS FACEBOOK POST.

WHETHER OR NOT THE RESPONDENT SHOULD BE DISBARRED

BASED ON THE ALLEGATIONS ON THE COMPLAINT.

DISCUSSIONS

RESPONDENTS RIGHT TO
PRIVACY WAS VIOLATED.
-------------------------------------------

The right to privacy, or the right to be let alone, was

institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and
seizures. But the Court acknowledged its existence as early as 1968

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in Morfe v. Mutuc, it ruled that the right to privacy exists independently
of its identification with liberty; it is in itself fully deserving of
constitutional protection (Disini v. The Secretary of Justice, G.R. No.
203335, 11 February 2014).
The complainant avers that before one can have an expectation
of privacy in his online social networking activity, it is first necessary
that said user manifests the intention to keep certain posts private,
through the employment of measures to prevent access thereto or to
limit its visibility. This intention can materialize in cyberspace through
the utilization of Facebook's privacy tools. In other words, utilization of
these privacy tools is the manifestation, in the cyber world, of the user's
invocation of his or her right to informational privacy.

The respondent, by his counsel, begs to differ. While it may be

true that before one can have an expectation of privacy in his online
social networking activity, it is first necessary that said user manifests
the intention to keep certain posts private, through the employment of
measures to prevent access thereto or to limit its visibility, such
manifestation of intention is not to be understood only within the
bounds of utilizing the privacy tools available on Facebook. It is bears
noting that before one can even have access to personal posts made
by someone on Facebook, it is imperative that one should send a friend
request first to the other person and that the other person to whom
such request was sent must confirm such friend request (and vice
versa), thereby constructively giving the requester (or both, on each
others account) the authority to view posts etc. Otherwise, Facebook
sets the privacy settings by default so that those who are not friends
on Facebook would only be limited to viewing a persons profile picture
and cover photo.

The complainant and the respondent are NOT Facebook

Friends. Therefore it could not be possible that the respondent wanted
nor intended that the complainant be allowed access to herein
respondents personal posts, let alone, the same posts be used against
the respondent. Granting arguendo, as herein complainant claims, that
respondent did not employ measures to keep the respondents post
private such as setting his profile from public to private setting or any
other restrictive setting, such claim must be supported by an evidence
rather than mere screenshots of the respondents post which,
apparently, may have been maliciously obtained from any of the 2,000
facebook friends of the respondent as the complainant claims, and that
which she is not even a part of. Substantial evidence is required in
administrative proceedings. Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. (Appalachian Electric
Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989)

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 THERE WAS NO INTENT TO
DESTROY NOR RUIN BMGIs
MEDICAL PERSONNEL
------------------------------------------

It is established that freedom of the press is crucial and so

inextricably woven into the right to free speech and free expression,
that any attempt to restrict it must be met with an examination so critical
that only a danger that is clear and present would be allowed to curtail
it. (Chavez vs. Gonzales, GR 168338, 2/15/08)

At the very least, free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public
interest without censorship and punishment. There is to be no previous
restraint on the communication of views or subsequent liability whether
in libel suits, prosecution for sedition, or action for damages, or
contempt proceedings unless there be a clear and present danger of
substantive evil that Congress has a right to prevent. (Gonzales vs.
Comelec, 137 Phil. 471, 492 1969)

The complainant is a public figure therefore matters concerning

her are of public interest, let alone, the alleged failed medical
procedure which involves public health. The complainants allegation
that the respondents remarks on facebook was an attempt to destroy
BMGI is no more than a witty and capricious attempt to curtail the very
freedom of expression that the Constitution has sought to uphold, there
being no showing of a clear and present danger that the court may
allow such curtailment.

THERE WAS NO INTENT FOR THE

POSTS TO BE SEXIST, VULGAR AND
BE DISRESPECTFUL TO WOMEN.
------------------------------------------------------
The nature of the conversation as shown in the complainants
evidence was nothing but a mere playful exchanges between friends
which should have maintained its privacy had the complainant not
brought the same to the attention of the public without the consent of
the respondent.
The mere mention of Maricar Reyes cannot be made to mean as
already sexist, vulgar and disrespectful. Furthermore, nothing in the
comments which the complainant asserts as sexist, vulgar and
disrespectful, is aimed to insult the complainant herself.

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 To allow such malicious prosecution would be to set precedence
that anyone may commence a suit for offenses against chastity despite
not being the offended party. This would defeat the words of the law.

RESPONDENT DID NOT THREATEN

THE COMPLAINANT OF CRIMINAL
CONVICTION WITHOUT FACTUAL
BASIS AND WITHOUT PROOF
------------------------------------------------------
A remark, especially if made by a lawyer stating that one can be
convicted of an offense or face criminal prosecution for criminal
negligence does not constitute a threat of conviction without factual
basis and proof in the light of what the law contemplates. It is even
more absurd to construe that the degree of proof required must
conviction itself, in order to justify such alleged threat. Furthermore, the
complaint filed by Ms. Josefina "Josie" Norcio (Norcio), against the
complainant for an allegedly botched surgical procedure on her
buttocks in 2002 and 2005, purportedly causing infection and making
her ill in 2009, was already a factual basis.

THERE WAS NO ATTEMPT

OF EXTORTION
-------------------------------------------
Extortion is defined as the practice of obtaining something,
especially money, through force or threats. The resolution of this case
hinges on whether the complainant was indeed threatened and/or
intimidated by the respondent into giving him money. A careful
examination of the statement proves otherwise, to wit:
Argee Guevarra kellyn, sisingilin ko muna si belo... at saka sabi
mo naman, maibagsak ko lang ang kaplastikan ni belo, quits na
tayo ...(July 11 at 2:38am)

Based on the aforementioned remarks, there is not even a hint

of the use of force to obtain anything from the complainant. The word
sisingilin could be construed in many ways, it could be used to mean
to collect money or it could mean to get even. Granting that it was
made to mean to collect money, still it cannot be considered an
attempt to extort because the nature of the complaint filed by the
respondents client against the complainant in this case involves
pecuniary damages. Furthermore, the statement was not made in a
way that the charges made against the complainant will be dropped
upon payment of money to the respondent, so as to warrant extortion.

RESPONDENT SHOULD NOT BE

DISBARRED
------------------------------------------------------

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 Twenty one (21) years ago, then House Representative Imelda
Marcos filed 3 criminal libel cases against respondent in the amount of
Php 300 million in 1996. This came after the latter wrote a series of
articles in his newspaper column in BusinessWorld critical of the
Marcos dictatorship and essentially branding Imelda Marcos a
kleptocrat. Respondent even called her a vampire. The 3 libel cases
were dismissed after Preliminary Investigation.
Presently, another case of the same nature is set before the
honourable court against the same respondent. If the 1997 Supreme
Court standards for dismissing a disciplinary case against respondent
filed by Imelda Marcos for calling her a kleptocrat and a vampire in
a newspaper column is to be applied, then the 2017 Supreme Court
must similarly weigh such considerations in applying the appropriate
penalty, if at all respondent should be penalized.

WHEREFORE, premises considered, it is most respectfully

moved that this case be dismissed and to render judgment in favor of
the respondent.

Naga City, Philippines, February 18, 2017.

Atty. MARK PAME A. VALENCIA

Counsel for Respondent
Room 105 Science Building
University of Nueva Caceres
4400 Naga City, Philippines
Roll No. 14344

EXPLANATION

A copy of this position paper is being furnished to complainants

counsel not by personal service but by registered mail due to time
constraint.

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 VERIFICATION

I, Roberto Argee C. Guevarra Jr., after having been sworn

to, in accordance with law hereby depose and state, that:
1. I am the respondent in this administrative case.
2. I have read the foregoing instrument.
3. The allegations and defences contained therein are true and
correct to the best of my knowledge and/or based on authentic
record
4. I further attest to the authenticity of the annex thereof.

Roberto C. Guevarra Jr.

Affiant

SUBSCRIBED and SWORN to before me this 18th of February

2017 in the City of Naga, affiant exhibiting to me his Community Tax
Certificate No. 1234567890 issued on February 1, 2017 in the City of
Naga.

Mark Pame Valencia

Notary Public
Roll No. 14344
IBP No. 5024, 12/1/20
PTR No. 1445, 1/8/21

Doc. No. _________

Page No._________
Book No._________
Series of 2017

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