[Related Media’s Public articles: June 22, June 20, June 17, June 16, June 15]
THERE are a few journalists who believe the cyber-libel complaint filed against Rappler executive editor and CEO Maria Ressa and former researcher-writer Reynaldo Santos Jr. is not, by itself, an assault on press freedom. They contend that being sued for libel is part of the risks of working with a newspaper or broadcast station.
“We can face libel, why can’t they,” sums up the attitude of skeptics, who think, within the narrow strait of one libel suit, that those who whine over litigation shouldn’t be in media.
Manila Regional Trial Court Judge Rainelda Estacio-Montessa last June 15 convicted Ressa and Santos, sentencing them to prison terms of six years and one day to 12 years, and ordering them to pay damages of P400,000 each. Last Monday, June 29, they submitted a motion for reconsideration (MR) of the judge’s decision.
Rappler lawyers’ 132-page MR cited 13 errors but at least three of them would interest practitioners in media and even those who use the internet by reporting or commenting as plain citizens.
Working media, more intensely, would be affected by how the courts -- from the RTC where the MR is filed, to the Court of Appeals and ultimately the Supreme Court -- would rule.
It would surely affect their work and their lives as journalists. Social media users might think they can’t be the target of offended public officials. They can and they are, as shown by recent lawsuits and public shaming against non-journalists over comments in Facebook and Twitter.
The three issues
There are three core issues in the Rappler cyber-libel case:
[1] REPUBLICATION. Ressa and Santos were charged and found guilty not for publishing the offensive story against businessman Wilfredo Keng in 2012 but for “willfully, unlawfully and knowingly” re-publishing it in
2014. What constitutes re-publication?
[2] PRESCRIPTION. The crime of libel under the Revised Penal Code prescribes in one year. The judge says cyber-libel -- being punishable under a special law, the Cybercrime Prevention Act, which does not provide a period of prescription – has a prescriptive period of 12 years.
[3] KENG AS PUBLIC FIGURE. The judge considers businessman King as a private figure. Being a private figure, proof of actual malice is not required to convict as malice by law is presumed. Ressa and Santos didn’t offer evidence to refute the presumption, the judge said.
Tied to one another
Ressa and Santos argue that changing in 2014 the spelling of one word in the news story was not re-publication. The Supreme Court decision cited by the judge involved jurisdiction, not the meaning of re-publication in the internet, they argued.
If it was not deemed re-published, then the period of prescription should be counted from 2012, not from 2014. Keng should have the right to sue only until May 2013 or, at most, if counted from “re-publication.” Until February 2015. (King filed the complaint in October 2017.)
Re-publication is thus linked to the issue of whether the prescriptive period for cyber-libel is that provided by the Revised Penal Code, one year, or by prewar Act #3326, 12 years. Former Supreme Court chief justice Antonio T. Carpio, in a June 24 Inquirer column, said Act #3326 specifies that it applies only to violations not included in the Penal Code.” Libel is not a new crime, the cyber law merely raising its penalty by one degree higher. Art. 90 of the Revised Penal Code expressly provides that the crime of libel or other similar offensese shall prescribe in one year.”
Applying an ex-post facto law (which punishes a crime before it was committed) is also unconstitutional.
Public figure, malice
The issue of whether Keng is a public figure or a private person is also linked to the issue of malice, which is one of the five elements of cyber-libel. Knock down one and you knock down the charge.
Judge Montessa in her ruling heavily relied on Ressa and Santos having allegedly failed to overcome presumption of malice in law, which the judge said Keng enjoyed as a private person.
The journalists disagree, citing the Supreme Court ruling (Ayer vs Capulong, GR #82398, 1988) that even non-government officials are considered public figures when they are involved in a public issue. Keng reportedly lent the use of his car to then Supreme Court chief justice Renato Corona who was being tried for impeachment by the Senate in 2012.
Judge Montessa blamed Ressa and Santos for not testifying. But then, the MR said, they were not accused of libel but re-publishing an old article, which the defense proved by the testimony of an editor who discussed the newsroom procedure. Ressa and Santos didn’t have anything to do with the change of the word and therefore couldn’t have been guilty of ill-will or spite.
Implications for cyber users
Consider the implications for cyber users, journalists or not if Montessa’s ruling would be upheld by the higher courts:
• The threat of a libel suit could hang over the writer/poster for 12 years, counted from each time the article is updated or reposted, even on a minor change in spelling or grammar;
• A public figure, involved in or linked to a public issue, cannot be mentioned or reported about, thus excluding him and his ties from public scrutiny. Even faithful news reports, without comment, could come within the meaning of criminal libel.
Alleged breach of standards
Previous “Media’s Public” articles on the Montessa decision dwelt on the judge using the alleged failure of Ressa and Santos to follow journalism standards, most notably the breach on the right of reply. Keng’s side was not published, despite his lawyer’s efforts. Judge Montessa took that as a serious offense, which convinced her that the Rapplers were guilty of ill-will or spite.
In their MR, Ressa and Santos tossed back the charge of malice to the judge, saying the court has “resorted to language that borders on the sarcastic and at times crosses over to the partial.”
The defense said the “self-distancing” by the judge from the issue of press freedom” is “so pronounced as to be unmistakable.”
She was not just keeping away from the issue. Her “one final note” was a long discourse on why Ressa and Santos could not raise the issue of free speech as they violated journalism standards. She was not staying away from the issue, she tangled with it, in effect saying that journalists who break the rules on good journalism don’t deserve the protection of press freedom.
Faulting the judge
She is being faulted by independent lawyers and freedom advocates alike from being selective in her citation of facts and ignoring a long line of Supreme Court decisions giving journalists a lot of room even for mistakes of fact or logic.
It’s highly unlikely the judge would change her mind and reconsider the decision, not after they call her malicious.
But the defense has cited enough possible errors to make the segment of the public that supports the RTC decision re-think their view of the case -- and of how Ressa and Santos were depicted by the judge in their practice of journalism.