Fresh cybercrime ruling highlights old problem of criminal libel
In this June 15, 2020 photo, Rappler CEO Maria Ressa, former Rappler researcher Reynaldo Santos Jr, and lawyer Theodore Te hold a press briefing at the Manila Regional Trial Court.
Courtesy of Kodao Productions/Raymund Villanueva

Fresh cybercrime ruling highlights old problem of criminal libel

Kristine Joy Patag (Philstar.com) - June 15, 2020 - 3:31pm

MANILA, Philippines — When the Supreme Court reviewed the constitutionality of the Cybercrime Prevention Act of 2012, striking down some provisions but leaving the cyber libel untouched, journalists and media advocates warned that this casts a wider net to penalize opinions posted online.

Although "updated" to take the internet to account, media watchdog Center for Media Freedom and Responsibility said in 2014 that, "libel as provided for in the [Revised Penal Code] ... remains today as problematic as it has been for over 80 years to press freedom and free expression, and in addition has become an even bigger constraint on free expression when committed online."

Five years later, state prosecutors cited the very same provision of the law to haul veteran journalist Maria Ressa and Rappler’s former researcher Reyanldo Santos Jr. to court.

It only took eight months for Manila Regional Court Branch 46 to rule on the government’s case: On June 15, 2020, the court held Ressa and Santos guilty beyond reasonable doubt of cyber libel, or defamation done online.

They may still appeal the conviction, but if the Supreme Court upholds it, they face jail time, for a minimum of six months. They too must pay a cumulative amount  of P400,000 for damages to private complainant Wilfredo Keng.

'Confusion bound to happen'

Central to the case against Rappler is an article first published on May 2012, roughly four months before the Cybercrime Prevention Act of 2012 was instituted. Laws like this cannot be applied retroactively.

The assailed article was updated — to correct a typographical error, Rappler said — on February 2014. The court held that this update was a "republication," no matter how allegedly insubstantial the update was. It also said that the defense failed to prove the news site merely corrected the spelling of "evasion" in its 2014 update.

"In other words, the original article published on 29 May 2012 can no longer be found. Only the 19 February 2014 version presently exists and accessible on the internet. Clearly, there was republication of the update version of the subject article," the ruling read.

Internet freedom advocacy group Democracy.Net.PH said the court misapplied the provision of the anti-cybercrime law, but that it was a “confusion [that] was bound to happen.”

Engineer Pierre Tito Galla, among the convenors of the group, was one of the resources speakers at a Senate hearing into the Cybercrime Prevention Act, as reported by the Philippine Center for Investigative Journalism in 2014.

"Deciding that editing for typographical errors is a ‘republication,’ which made the subject article in question covered by RA 10175 (The Cybercrime Prevention Act), violates the spirit of the law and the spirit of due process, and exposes any expression made online to be in danger of being attacked by malicious litigation beyond the limits set by prescriptive periods," the group said on Monday.

A prescriptive period is the maximum period set by law that legal action, like filing a complaint, can be brought.

Prescription on libelous posts made online

The prescription for libel is only one year, meaning one can only be charged within a year since publication. But it took five years from when the first story first came out—three if counting from when it was updated—for Keng to sue Rappler before the National Bureau of Investigation in 2017.

In convicting Ressa and Santos, the court explained that since the anti-cybercrime law does not provide its own prescriptive period, then the provision of the law on prescriptions for violations penalized by special acts would apply.

The court said that this means that the penalty of cyber libel is “one degree higher” than that of ordinary libel. It also looked at the penal provision of cyber libel.

"Considering that prision correccional in its maximum period and prision mayor in its minimum period is four years, two months and one day, to eight years, the offense shall prescribe after 12 years," the ruling read.

The court adopted the Department of Justice’s position and essentially held that an accuser can go after a social media user or a journalist even up to 12 years after an article or post was published.

Montesa’s ruling, however, is non-binding on other courts.

The case as a 'test' of institutions

The National Union of Journalists of the Philippines called Ressa’s case a "test run for the latest weapon the State can now wield to intimidate and silence not only the media but all citizens who call our government abuse."

Australian journalist Peter Greste, in an online forum on Rappler's case and organized by the Consortium on Democracy and Disinformation, said the ruling on the case against Ressa "tests the rule of law or the independence of the Judiciary in the Philippines."

The case is "very much about the system, the system is on trial." It is a "test of the ability for journalists to work without legal constraints," said Greste.

“If we see a conviction on this case, it will have very serious legal implications on anybody who goes online—journalists or people who comment online,” he added.

This is not the first case citing a violation of the fairly young Cybercrime Prevention Act. Social media users have been brought to court, and continue to be charged, for prosecution for cyber libel in the past.

While it is yet unclear if the case against Ressa and Santos was the first over a published article — and not a comment on social media or a blog post — that a court has ruled on, it is certainly the first high-profile cyber libel case to reach promulgation.

Beyond legalities, the verdict carries additional weight for journalists, media workers and civil society groups have warned.

Greste, jailed in Egypt for more than a year over his work as a journalist, said: "Conviction would send a message to every journalist operating in the Philippines that if you push the government, they’ll use every tool to come after you, and the courts can’t or won’t defend you."

'Chilling effect' on media     

For international human rights and media lawyer Caoilfhionn Gallagher, the case against Ressa was a deliberate warning to other media outlets and workers in the Philippines.

Speaking at the same online forum as Greste, she said that this is a "deliberate strategy that the authorities want journalists to be afraid in the Philippines."

"They want the comparison to be drawn and the threat, part of the pattern of silencing independent voices, [a] chilling effect," she said.

The Palace has denied that the cyber libel case is a press freedom issue and has said President Rodrigo Duterte — who has hit Rappler, as well as network giant ABS-CBN and the Philippine Daily Inquirer, in his addresses and speeches — is not involved in the cases against Ressa and the news site she heads.

In a webinar hosted by the NUJP on May 15, veteran journalist Ed Lingao, making clear that he was only making an observation and not speaking on behalf of any media company, said that Philippine media has generally shied away from confrontations with a sitting administration.

This has also proven true in recent years, when media outifts that have been critical of, or perceived to be "biased" against, the government have been singled out in speeches, and later, in court cases.

"Let me tell you, from what I've been hearing and what I've been seeing the last four years, the chilling effect has been there for the last four years. It's not so much a chilling effect on reporters on the ground. It's more of a chilling effect on managers and the higher ups," he said.

"You would probably notice that many of those expressing support for fighting back for media freedom are individual reporters. News outfits that do that are few, and usually, the news outfits that do that are those news outfits that are already under fire," Lingao said, referring to what he has seen in decades of working as a journalist.

Media watchdog shared the same observation in a piece written in 2018 saying that "the chilling effect has been obvious."

"Never has an administration been given such broad latitude by the press, with reports that merely record the statements of government officials, without correction as needed, without question or analysis," CMFR, which also regularly reviews Philippine news reports, said.

"This president has succeeded into bullying a press that had in the past proven its courage and capacity to speak truth to power, exposing with world-class investigative reports corruption and other wrongdoing in high places. The president has succeeded to instill fear in the press community," it added.

Human Rights Watch meanwhile noted that the "campaign against Rappler occurs in the context of worsening media freedom of expression in the Philippines...Journalists from other media groups have suffered intimidation and attacks online and offline."

The Philippines fell two places in the World Press Freedom index in its 2020 rankings.

Paris-based media watchdog Reporters Without Borders (Reporters Sans Frontières, RSF), referring to the Philippines, noted the “grotesque judicial harassment campaign” against Rappler and the threats against media giant ABS-CBN, which was ordered shut barely a month since the rankings were released.

On Monday, the Bishop-Businessmen's Conference for Human Development, Judicial Reform Initiative, Filipina CEO Circle, and the Makati Business Club, in a joint statement, stressed that the conviction of Ressa, taken with other developments such as ABS-CBN closure and a looming new terror law, “has a chilling effect on journalism at a time when we need it the most: to get reliable information as we all fight the pandemic, especially when wrong information and international misinformation abound."

New law and ruling, old problem of libel

The alleged campaign to stifle journalism in the Philippines is happening in a context that predates even the Republic of the Philippines: the criminalization of libel, and its continued use as a tool to keep journalists in line.

Democracy.Net.PH was not alone in pointing out on Monday that "criminal libel is commonly used as a tool for the powerful to use government resources in the oppression of the weak."

It called libel "an affront to the right to freedom of expression" that it said "ensures that the full power and the might of state is brought to bear on a matter that should only be between two private parties."

"It is time to decriminalize libel, whether online or offline, and take away the participation of the state in disagreements on speech. The state has no business aiding and abetting a private person's demand for restitution for hurt feelings from another person's expression, whether made offline or online," it added.

RELATED: Journalists reiterate call to decriminalize libel

Days before the ruling on Ressa’s case was promulgated, UN Rapporteur on the Right to Freedom of Opinion and Expression David Kaye sought to explain to the court the importance of the role of journalists and the special protection countries must accord them..

In a brief of amici curiae (friend of the court), Kaye noted that the Human Rights Committee “urges States to consider the decriminalization of defamation.”

"The Committee recommends that in dealing with defamation cases, 'a public interest in the subject matter of the criticism should be recognized as a defense,'" he added.

Montesa, in her ruling, said the court only “noted” Kaye’s brief on journalism and Ressa’s case.  — with Jonathan de Santos

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