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AT A GLANCE, PLAINLY: The article was posted on a day when the cybercrime law was not yet in force. But the news story was "re-published" on a day when the law already took effect.
For that, Rappler's CEO and executive editor Maria Ressa and former researcher-writer Reynaldo Santos Jr. last June 15 were convicted of cyber-libel and sentenced to imprisonment of six months and one day to six years and to pay P400,000 moral and exemplary damages each.
Two things: (1) Prosecution raised and the court applied a Supreme Court ruling on "re-publication" that defense contends works only for newspapers. (2) Besides, only one misspelled word was changed, Rappler said. A correction of a "typo," not a new publication.
But the defense lawyers "didn't present" evidence of its argument, the ruling said.
WHAT HAPPENED. On May 29, 2012: the article businessman Wilfredo Keng found offensive was published. On September 12, 2012: the Cybercrime Prevention Act (CPA) was signed. Then on February 19, 2014, the news story was "re-published."
If applied to the original article, the CPA would've been an "ex post facto law," a law that makes illegal an act that was legal when committed or increases the penalties of an infraction after it has been committed.
The cybercrime law raises the penalty of libel one degree higher than that imposed by the Revised Penal Code. The increased penalty, and the corresponding lengthened prescriptive period (12 years, from one year on ordinary libel), could not have been used on Ressa and Santos. "Re-publication" was the trigger.
EARLIER MOVES. The defense earlier raised the issue of "re-publication" in its motion to quash (junked by the court April 12, 2019) and its demurrer to evidence or motion to dismiss due to insufficient evidence (denied November 15, 2019).
The court then supported the DOJ position that the "multiple republication" rule applies to both print and online media. The two rulings were red flags, which must have told defense to do better in the main trial.
Apparently, the court wasn't convinced, and no evidence was presented, that the change was merely on the spelling of one word. The "re-publication" theory might have been rejected.
In its ruling, RTC Judge Rainelda Estacio-Montesa said the defense in the testimony of Rappler senior editor Ma. Rosario Hofilena didn't present evidence of her participation in the writing or updating the article, making her testimony about it "hearsay" and inadmissible. Defense also didn't present the reporter who corrected the error, the judge said.
Two days before the ruling, Ressa reportedly said in jest, "Essentially, if we do lose the case, it would be because someone in Rappler is fixing a typo." But it wasn't the minor correction that brought the loss of the case, it was the fact that no evidence of it was presented.
SCARY IMPACT ON ONLINE MEDIA. The court cited Brilliante vs Court of Appeals to invoke the principle of "multiple publication": each publication "constitutes one offense of libel without qualification as to whether it was modified or not." Applying the said ruling, Judge Montesa said, "as long as the defamatory story is published several times, it gives rise to as many offenses as there are publications." Montesa said, "Whatever, the defamatory statements can still be found in the February 19, 2014, giving rise to the indictment."
The implication is scary for journalists of news web sites, on the matter of criminal and civil liability. Any change of the article, by Judge Montesa's ruling, creates a new potential liability and stretches the prescriptive period for it.
In a newspaper, meaning of "re-publication" is clear and specific: the story or article is re-published if printed again in another issue of the paper. To Judge Montesa, in a news web site, the story or article must be taken down or left to lie there untouched; any change is considered a new publication and a new libel.
Apparently, that was lost on the judge who, by her ruling, didn't know, and was not told how evidence-wise, things worked in media. Editors have the compulsion to correct any sighted error and update because of the ease with which it can be done. Unlike in print publication, where the error is printed there forever in the newspaper hard copy, an error in the internet can be handily corrected by anyone with access to the news site's files.
GAPS IN THE LAW. Obviously, there are gaps or ambiguities in the ruling that the Supreme Court -- or even better, Congress -- can fill in and clarify: particularly, the issue of prescription and the matter of "multiple publication."
Cyber-libel is not ordinary libel but, surely, it cannot be more monstrous than ordinary libel.
[DISCLOSURE: Seares is also executive director of Cebu Citizens-Press Council (CCPC), whose advocacy includes seeking an express prescriptive period in the anti-cybercrime law and the removal of jail penalty in libel. He taught journalism law and ethics at UP Cebu.]