[Related: Media’s Public, October 12, 2022: [] Court of Appeals rejects second plea of Rappler journalists [] Under CA standard in Santos-Ressa ruling, would Tomas and Miguel Osmena qualify as public figures?]

TOLERANCE FOR MEDIA ERRORS. The Supreme Court (SC) in past rulings has shown tolerance for mistakes, even excesses of media in reporting and commenting on the news. More notably, Arturo Borjal and Max Soliven vs. Court of Appeals (CA), a January 14, 1999 libel case (GR #126466) involving a private businessman, affirmed that doctrine.

“There must be room for misstatement of fact as well as misjudgment,” the SC said, citing the earlier case of Bulletin Publishing Corp. vs. Noel, “Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.” “Even assuming the contents of the article are false, mere error, accuracy, or falsity alone does not prove actual malice.”

The CA resolution promulgated last Monday, October 10 rejected the motion for reconsideration of its earlier decision affirming the June 15, 2020 conviction of Rappler’s Reynaldo Santos Jr. and Maria Ressa by the Manila Regional Trial Court. The CA again took up alleged lapses of the two journalists, which led to the complaint filed by businessman Wilfredo Keng.

Would those lapses fall within the level of tolerance for media mistakes and absolve the accused of libel? The CA didn’t think so.

Would the SC agree with the lower appellate court’s assessment? Wait for the high court ruling.

RIGHT OF REPLY, VERIFICATION. The CA in its resolution said it “remained undisputed” that businessman Keng, the complainant, “was never asked of his side of the story” about the “criminal activities imputed against him” in the Rappler story prior to publishing.

News outlets try to do that but don’t always succeed. The standard practice is to run it in the next news cycle. Was it done by Rappler? A “clarificatory article,” said to be prepared by a Rappler reporter, “was never published despite several follow-up requests by Wilfredo Keng.”

Rappler said it was not they who named Keng, having based it solely on a National Security Council intelligence report and a Philippine Star news report. Santos and Ressa “failed to substantiate that they verified the story before publication,” said the CA.

Right of reply is not required by law, not yet anyway, as there were attempts in Congress to legislate it, repulsed partly by media insistence that media can regulate itself. Verification is another standard of journalism that is enforced by newsrooms but is at times not done or is inadequate.

INDICATORS OF MALICE. Do these journalistic lapses or sins make the news report libelous? Not by themselves but they can help the court in determining malice or its absence. Violation of journalism standards taught in journalism or masscom classes and enforced by editors is not criminal but they help determine whether the crime of libel is committed.

The CA not only ruled that Santos and Ressa weren’t entitled to qualified privileged communication, which would’ve removed the presumption of malice. The court also said the journalistic failures indicated that “good faith” was “wanting.” The CA repeated what it said in the decision appealed from: there was actual malice, based on “facts of the case and evidence on record.”

It is for the SC, to which the case will go since Rappler has announced an appeal, to determine whether the CA was correct in judging that the accused published the news about Keng “knowing that it was false” or “with reckless disregard of whether it was false or not.”

COURTS’ ATTITUDE. Has the attitude of courts on free speech and libel been changed by the new technologies? They seem to see cybercrimes as “more perverse” with cybercriminals “enjoying the advantage of anonymity” and the internet as a place with benefits and great danger. “There’s a need to regulate certain aspects of the use of the media to protect the most vulnerable,” the CA said in the Rappler ruling.

The reaction to the changes in technology may be misplaced. Those abusing free speech and free speech, committing the “more perverse acts” are mostly those hiding their identity, trolls and other peddlers of propaganda and falsehood -- surely not most of traditional media. Legitimate media outlets put their names up front and observe journalism standards in publishing news or comment. And they hold themselves accountable for any violation of those standards.

Regular media could be taking the heat for the online violations. The CA, which drew the distinction between traditional media and digital media, should know better which is flouting the law on libel on both platforms.