VERDICT PRIMER: Legal and factual issues in Rappler, Maria Ressa cyber libel case

(UPDATED) Cyber libel is punishable by jail time of 6 months and 1 day to up to 7 years. If acquitted, Maria Ressa faces 7 other criminal charges.

Lian Buan

Published: 9:32 PM June 13, 2020

Updated: 4:54 PM June 14, 2020

Rappler CEO Maria Ressa was arrested Wednesday, February 13, for a cyber libel charge

MANILA, Philippines (UPDATED) – The Manila court's verdict on Monday, June 15, on the high-profile cyber libel case of Rappler, its CEO Maria Ressa, and former researcher-writer Reynaldo Santos Jr, will have big implications on the young Philippine cybercrime law and the freedom to publish online.

For starters, if Ressa or Santos, or both, are convicted of the crime, they are not expected to go to jail because the Rules of Court allow post-conviction bail for bailable offenses. Cyber libel is punishable by jail time of 6 months and 1 day to up to 7 years.

A conviction is appealable, first to the Court of Appeals, then the Supreme Court, and only until there is a final affirmation will jail time start for a bailable offense like cyber libel.

But as a worst case scenario, the prosecution can move for the cancellation of post-conviction bail on these grounds under Section 5, Rule 114 of the Rules of Court:

the accused being a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

the accused had previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

the accused committed the offense while under probation, parole, or conditional pardon;

the circumstances of the case indicating the probability of flight if accused is released on bail;

when there is undue risk that he may commit another crime during the pendency of the appeal.

Rappler counsels are confident that neither Ressa nor Santos fall under any of those conditions.

It is also possible that the journalists are convicted but the judge will not impose jail time, only fines. 

This happened to Raffy Tulfo who was convicted of libel by a lower court in 2010 but it imposed only a reduced "subsidiary imprisonment in case of insolvency." As Tulfo appealed, the Supreme Court altogether removed prison time but doubled the fines to P1.71 million.

If Ressa and Santos are acquitted, the complainant Wilfredo Keng can't appeal as it would be tantamount to double jeopardy.

Rappler asked Keng's lawyer Melissa Andaya on Saturday, June 13, if they are going to pursue a separate civil suit for the P50 million in damages they have demanded, but the lawyer referred to their prepared statement.

"We have faith that justice will be served. The reputation of our client Wilfredo Keng will be vindicated," the statement reads.

Judge Rainelda Estacio-Montesa will call the court to order at 8:30 am on Monday.

The reading of the verdict will go by usual procedure – meaning in person – except the number of people allowed inside the courtroom will be limited to observe physical distancing.  

Only the complainant, the accused, their lawyers, and 3 reporters are allowed inside.

Rappler will be represented by former Supreme Court spokesperson Ted Te.

Keng can have 3 lawyers, one each from the 3 firms he hired for the case, and one prosecutor from the Department of Justice (DOJ).

On draw lots, the court has allowed Rappler, CNN Philippines, and one member from the foreign press to be inside the courtroom for the verdict. Following usual practice, no phones or any form of recording device are allowed inside the court.

Legal issue 1: Prescription period

The Rappler cyber libel case can be looked at from two points – the legal issues and the factual issues.

The legal issues have implications on how the cybercrime law may be used in the future against anyone who publishes anything online.

First is the prescription period. Under the Revised Penal Code, as revised by Republic Act 4661, libel prescribes in one year, meaning you can only be sued for libel within a year of publication.

Keng filed his complaint in 2017, or 5 years after the article was published in 2012.

The cybercrime law is silent on the prescription period of cyber libel. So the Department of Justice (DOJ) used an obscure law – Republic Act 3326 – as basis to extend libel's prescription period from one year to 12 years.

RA No. 3326 says that for special laws, such as the cybercrime law, if the offense is punishable by jail time of 6 years or more, like cyber libel, the prescription period becomes 12 years. 

If this is upheld, online publishers can be sued within 12 years of publication. 

The National Bureau of Investigation (NBI) legal department dismissed Keng's complaint on the basis of a lapsed prescription period, but they were eventually overruled by the bureau's higher officials, who transmitted the complaint to the DOJ.

The DOJ then charged the journalists.

Justice Secretary Menardo Guevarra had said this was not an attack on press freedom because "the law on libel applies to everyone, not only to journalists.”

Asked on the impact of a 12-year prescription period on the freedom of speech, DOJ Spokesperson Undersecretary Markk Perete had said, “The decision to prescribe a longer prescriptive period for the offense of cyber libel is within the province of the legislature.”

Legal issue 2: Republication

The other legal issue is the theory of republication. 

The disputed article, written by Santos, was published on May 29, 2012. The cybercrime law was only enacted months later on September 12, 2012.

Penal laws cannot be applied retroactively.

However, Rappler corrected a typographical error on February 19, 2014, belatedly spotting the misspelled "evation" and changing it to "evasion." No other changes were made.

In charging Rappler, Ressa and Santos, the DOJ used the theory of republication and said that the cybercrime law now covers the article because it was "republished" in 2014.

In justifying that, the DOJ used the 1988 case Soriano vs Intermediate Appellate Court where the Court said "we follow the multiple publication rule."

In that case that concerns jurisdiction, the Supreme Court said "that each and every publication of the same libel constitutes a distinct offense," and that "every time the same written matter is communicated such communication is considered a distinct and separate publication of the libel."

The Free Legal Assistance Group (FLAG), Rappler's counsels, said the Soriano case is not authoritative because it was a decision of a division and not the en banc, and that only jurisdictional issue was settled there.

Jurisdictional issues are crucial for libel cases because complainants have used libel as harassment suits, by filing cases in faraway places, or by filing in more than one place.

FLAG said multiple republication does not apply to online media, and, citing American jurisprudence, does not apply if there is no substantial change to the article.

"Even assuming only for the sake of argument that 'republication' applies, it can only apply if there was a substantial change," said Rappler in the memorandum submitted to the court, and prepared by FLAG.

"Not a single sentence or word was altered, with the only change being a spelling correction," FLAG added.

FLAG also said the theory of republication would violate an earlier ruling from the Supreme Court with regard to the cybercrime law.

The Supreme Court struck out as unconstitutional the part of the cybercrime law that punishes “aiding and abetting” in a case of cyber libel. The en banc struck it out for infringing too much on the freedom of speech.

FLAG said that the act of sharing on the internet and the act of republishing are similar in some ways.

Factual issue 1: Malice 

The main factual question is: was Santos' article libelous?

It was an article about the late former chief justice Renato Corona, and his alleged use of vehicles from businessmen, including Keng.

Keng disputed the part of the article where he was linked to drugs and trafficking. Santos, with inputs from the late veteran investigative journalist Aries Rufo, sourced that information from an intelligence report.

In a libel case, the judge must decide if there was malice and defamation.

Article 361 of the Revised Penal Code (RPC) says that if it is proven that the matter charged as libelous is true, the defendants shall be acquitted.

Keng swears it's not true, and has put on the stand a representative from the Philippine Drug Enforcement Agency (PDEA) to say that the businessman has no derogatory record in the agency.

Keng's lawyers wanted to know who Rappler's source was for the intel report it based its information on, but Judge Montesa agreed that the Sotto law allows journalists to keep their sources confidential.

On the issue of whether there was malice, Article 354 of the RPC says "every defamatory imputation is presumed to be malicious even if it be true," except if it is:

1) a private communication
2) a fair and true report, made in good faith of official proceedings which are not confidential.

Santos' article falls under the 2nd exception, says FLAG.

"It was not accused Santos who named Mr. Keng as being involved in illegal activities, it was the report that named him. Accused Santos simply wrote about the report," said FLAG's memorandum.

"The prosecution cannot simply rely on the presumption of malice. Its burden is to prove actual malice or malice in fact," FLAG added.

In a statement on Sunday, June 14, Keng's lawyers reiterated that his "side was never taken before they published the article."

Santos’ report in May 2012 included Keng’s side taken from a phone interview with the businessman.

"Thereafter our client presented to Rappler all the pertinent evidence including certifications from PDEA and NBI that he was never involved in any crime in the 37 years of doing business in the Philippines, so they can amend the article or add his side. But Rappler unmindful of the damaging effect of their defamatory article, turned a blind eye and deaf ear," said Keng's legal team.

During trial, Rappler's Investigative Head Chay Hofileña explained that Keng's lawyer Leonard De Vera got in touch in 2016, or 4 years since the story was published, to give a copy of PDEA's certification clearing the businessman of derogatory records.

A Rappler researcher interviewed De Vera afterwards.

But Hofileña said they needed to countercheck the PDEA certification – a process that they didn't get to finish as Rappler became busy with its coverage of the drug war. It is also SOP for any claim to be verified with other sources before it is published.

"The present case is simple. Is Ressa and Rappler guilty of Cyberlibel by publishing an online article accusing a private individual Mr. Keng of involvement in illegal drugs and murder without any proper research and factual basis?" said Keng's legal team.

Santos' article mentioned Keng being linked to the 2002 murder of Manila councilor Chika Go. The intelligence report mentioned it, and Santos cited a 2002 Philstar.com report quoting Go's relatives on suspicions over Keng. 

Philstar.com removed the article from the website in February 2019 after Keng "raised the possibility of legal action."

"Where is  the violation of press freedom there? They have totally forgotten their duty to uphold the truth. With the power they wield, they have forgotten their accountability," Keng said.

Factual issue 2: Defamation

An element of defamation is injury to reputation.

"Rappler tarnished my good reputation despite all the evidence and certifications I gave them clearing my name of any criminal case," said Keng in a statement on Saturday.

In Rappler's memorandum, FLAG said the prosecution was not able to prove damage to reputation beyond a reasonable doubt.

To prove this, prosecution presented a witness named Marcelino Malonzo and Keng himself.

Malonzo said on the stand that after reading Santos' article, he "immediately made prejudices against this man."

"Mr. Malonzo is not an impartial witness. On cross examination, he admitted that he even contacted the daughter of Mr. Keng, someone he had supposedly not had contact with for many years, after reading the article; he also admitted that his testimony was due to Ms. Keng’s initiative," FLAG said in the memorandum.

FLAG pointed out that Malonzo was not subpoenaed, but instead was asked by Keng's camp to offer a testimony.

"Mr. Malonzo’s testimony cannot be given full probative weight as it is clearly biased in favor of the private complainant," said FLAG.

Keng said on Saturday that the filing of the case was not influenced by anyone, more especially not President Rodrigo Duterte, "dahil hindi naman niya ako kilala (he does not know me)." (READ: Duterte gives Wilfredo Keng's daughter a government post)

Ressa was not at all involved in the writing, nor the editing, of Santos' story, but during trial, Keng's lawyers tried to tell the judge that the "buck stops with her." Rappler's Investigative Head Chay Hofileña took the witness stand to say that even Ressa gets vetoed on some stories, as "we are a democratic organization."

Ressa: 'I embrace the fear'

Ressa faces 7 other criminal charges in different courts, all related to Rappler's Philippine Depositary Receipts (PDRs), over which the news company was ordered shut in 2018. The Court of Appeals said the PDR problem has been cured.

The cyber libel case is Ressa's 8th criminal charge; there was a 9th libel case over an article by Rappler reporter Rambo Talabong, but this was already dismissed at the prosecutor level.

The 10th case is the PDR case – the mother case – which has been remanded to the Securities and Exchange Commission. The 11th case is an administrative proceeding at the Bureau of Internal Revenue (BIR). (LIST: Cases vs Maria Ressa, Rappler directors, staff since 2018)

"Eleven times in a little more than a year, cases have been filed against Rappler, so yes, absolutely they're trying to pin me down and Rappler down," said Ressa.

United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression David Kaye has written Judge Montesa an amicus brief to urge the judge to protect the freedom of the press.

"I strongly support press freedom that is why I want to vindicate my name in court and allow Ressa and Rappler to show the truth or basis of their defamatory report," said Keng.

Days before the verdict, Ressa said she is "embracing the fear."

"I've been the cautionary tale: be quiet or you're next. It's a chilling effect not just to me and to Rappler, but to journalists and to anyone who asks critical questions," said Ressa. – Rappler.com