“LIBEL is not protected speech. There is no freedom to unjustly destroy the reputation of a woman by publicly claiming that she is a paid prostitute. -- Court of Appeals Associate Justice Roberto P. Quiroz who wrote the decision

WHAT JUST HAPPENED. The Court of Appeals (CA) last Monday (October 10, 2022) rejected the motion for reconsideration of two journalists of the digital news outlet Rappler, which assailed its ruling that affirmed the Manila Regional Trial Court conviction for cyber-libel of Rappler's Reynaldo Santos and Maria Ressa.

On top of the rebuff, the CA added eight months and 20 days each to the jail term of Santos and Ressa, which was originally set for six months and one day to six years. They will appeal the CA decision to the Supreme Court.

The CA fourth division ruling, not unexpected, said the motion for recon merely "rehashed" arguments of the journalists in their appeal. The court said "the matters raised by the accused-appellants" were already "exhaustively resolved and discussed."

Yet the appellate court took the issues up anew, reinforcing its July 7, 2022 decision, which affirmed the June 15, 2020 conviction of Santos and Ressa by the Manila Regional Trial Court (Branch 15). More than ever, implications of the ruling on media practice appear to be more scary.

11 'ERRORS.' Santos and Ressa, through their lawyers, cited 11 "errors" of the CA, which the court turned down. Topping that list, for media practitioners, are the issues on prescription and re-publication.

Those are not just interesting questions of law; they directly affect the practice of journalism.

The Anti-cybercrime Law's constitutionality may be the root issue but it would take deeper probing by the SC as it already ruled on it in 2014, in Jose Jesus M. Disini vs Secretary of Justice, which the CA waved in the face of Santos and Ressa as a doctrine adopted by the high court "with finality."

FIRST, WHO CAN FIX IT. The new CA ruling repeats what the court said before about the authority that can fix the dispute on penalties and prescription of the crime.

"As the (appealed) decision stressed, the power to fix the penalties for violations of penal laws, like the cyber-crime law, exclusively belongs to Congress." "Prescription," the CA said, "is not a matter of procedure over which the Court has something to say... it is substantive law since it assumes the existence of an authority to punish a wrong, which authority the Constitution vests in Congress alone."

Courts interpret the law as they see it. If Congress bungles by omission or unclear language, courts settle the dispute over interpretation, as what happens to journalists are haled to court for cyber-libel.

Congress can fix the problem of vagueness or lack of clarity of the law while even the Supreme Court can only ascertain the intent of Congress and uphold or reject the interpretation of lower courts RTC and CA.

PENALTY, 15-YEAR PRESCRIPTION. Santos and Ressa didn't question the law on penalty but the court's meting out of the penalty. In error #9, they said the court "erred in modifying the penalty of imprisonment by increasing it."

Under the Anti-cybercrime Law (Republic Act 20175) -- which took effect on October 9, 2012 but was ruled by the SC as valid and constitutional only on February 11, 2014 -- the Rappler journalists could be sued for their acts committed when the SC's TRO or temporary restraining order was in effect. What was suspended by the TRO was only the implementation, not its effectivity, said the CA.

Some people may scoff at it as hair-splitting but that's what most lawyers, including judges, do with the law.

Similarly, the CA ruling also views prescription of cyber-libel thus: The reason for the 15-year prescriptive period, the CA said, is the increase of the penalty for libel -- one degree higher than that for ordinary libel. The "use of information and technologies" qualifies libel to cyber-libel, from 4 years, 2 months and 1 day to from 6 years and 1 day to 8 years, which the CA said classifies the penalty as afflictive, which under the Revised Penal Code prescribes in 15 years.

MEANING OF RE-PUBLICATION. In reckoning the prescriptive period, the CA insisted that the Rappler article of May 29, 2012 was re-published even though only one letter was corrected in its update of the same article on February 19, 2014. Rappler argues that the correction is too "un-substantial" and cannot be deemed a republication. Does not matter, the CA said, "what matters is that the very exact libelous article was again published on a later date." The re-publication is what Santos and

Ressa are sought to be punished for, not the original article.

Had Rappler people left the article alone, would it have been considered re-published?

The implication of the CA pronouncement is that the journalist and his news outlet keep the prescriptive period running forever by the simple act of updating stories in the website. It would be interesting to see if the SC would allow the prescriptive period to swing like a sword over the head of journalists "in perpetuity." And what of the writer who may have nothing to do with the updating?

NOT AN ARBITRARY DISTINCTION? The CA's holding on to the 15-year prescriptive period for cyber-libel, as compared to the one year in ordinary libel, must be explained by the court's belief that there's a whole lot of difference between the two crimes, specifically in the manner each is committed, between traditional publication and online publication.

The libelous article under traditional publication, the CA said, is only released and circulated once, on the day it is published, while the release of the defamatory article on cyberspace makes "commission of the offense continuous" because the article "remains there in perpetuity."

Specifying the "offensive" article in Rappler about businessman Wilfredo Keng, who filed the complaint against Santos and Ressa, the CA said, "is continuously published and can still readily be consumed by anyone who has access to cyberspace."

"CHILLING EFFECT," the near-cliché used in the media industry on government measure or action that tends to repress free press and free speech, was picked up by the CA in its argument for rejecting Santos's and Ressa's motion.

The court said the cyber-libel law "does not remotely and could not have chilling effect on the right of the people to disagree, a most protected right, the exercise of which does not constitute libel."

No trampling on the right to free expression, the CA said. "Libel is not protected speech." Constitutional guarantees against prior restraint, subsequent punishment, the requirement of actual malice, and the protection given by privileged communication, "ensure that protected speech remains to be protected and guarded."

WHAT THE CA FAILED to mention is the intent to harass and oppress the journalist, often concealed behind, or coated with, the color of legality, when aggrieved complainant gets the support of government forces to go after and avenge critical reporting against those in power. Apparently because it is not seen in the welter of arguments on the meaning of the law.

Debate over penalties and prescriptive period has crowded out the pattern of assault against a "hostile" sector of media. For the plain reason that it's not the issue litigated, even it is what has set the forces in motion.