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The new libel

"Libel, after all, is basic to the exercise of press freedom and freedom of expression. What is expression without curses, expletives, and malicious allegations?"

If there is any reason why Filipino journalists should hate or be thankful to Maria Ressa, the dimunitive American girl masquerading as a crusading Filipino journalist in the Philippines, through her upstart media company, Rappler, Inc., it is her conviction on June 15, 2020 for libel under the Cybercrime Prevention Act of 2012 (Republic Act 10175).

The conviction exposed two things: one, Maria Angelita Ressa is a negligent, incompetent, overrated, and malicious journalist, and two, the libel provision of the Cybercrime Prevention Act is an insidious attack on press freedom and sends a chilling effect on all journalists, legitimate and bogus, especially the bogus kind.

Under the Revised Penal Code, libel has a prescriptive period of only one year. Under RA 10175, libel, with the use of a computer or any future technology, has a prescriptive period of 12 years. Other lawyers say the prescriptive period could be longer, 15 years. Also, when the complainant is a private person, malice, a basic element of libel, is presumed. The writer is presumed to have malice. The prosecution does not have to prove it.

Write an article that somebody doesn’t like today, online, and for the next 12 to 15 years, you will be constantly under threat of libel.

Cyberlibel is punishable under Section 4 (c)(4) of Republic Act No. 10175, otherwise known as Cybercrime Prevention Act of 2012, which provides:

Section 4. Cybercrime Offenses.—The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

xxx xxx xxx

(4) Libel.—The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Libel is defined as “a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

In her decision convicting Ressa and Rappler writer Reynaldo Santos of six months up to six years imprisonment, Manila Regional Trial Court Judge Branch 46 Presiding Judge Rainelda H. Estacio-Montesa said: “By adopting the definition of libel as embodied in the Revised Penal Code, Section 4 (c)(4) also adopts the elements of libel as defined in Article 353 in relation to Article 355 of the Code. Thus, the elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice. In addition to the aforementioned four (4) elements, the act must be committed through the use of a computer system or any similar means which may be devised in the future, so that said act may constitute cyberlibel.”

Section 4 (c) (4) establishes the computer system as another means of publication. Computer system, as defined under Section 3 (g) of RA 10175, refers to: “any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media.”

Malice, the judge said, “does not necessarily have to be proven. There are two types of malice—malice in law and malice in fact. Malice in law is a presumption of law. The Supreme Court, in the case of Disini, Jr. v. The Secretary of Justice, already settled that there is malice in law in case the offended party is a private individual, thus:

“But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.”

In the Implementing Rules and Regulation of RA No. 10175, the penalty for cyberlibel is prision correccional in its maximum period to prision mayor in its minimum period.

“Libel—The unlawful or prohibited acts of libel, as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future shall be punished with prision correccional in its maximum period to prision mayor in its minimum period or a fine ranging from Six Thousand Pesos (P6,000.00) up to the maximum amount determined by Court, or both, in addition to the civil action which may be brought by the offended party.”

Considering that prision correccional in its maximum period and prision mayor in its minimum period is 4 years, 2 months and 1 day to 8 years, the offense shall prescribe after TWELVE (12) YEARS following the provision of Section 1 of Article 3326.

The Keng case was filed in Court on 5 February 2019, well within the period of twelve (12) years and clearly, prescription has not yet set in.

Montessa said “the prosecution sufficiently established that Keng is a private person being a businessman, with interests in several companies based in the Philippines and China. Thus, the prosecution is discharged of its burden in proving actual malice. Considering that Keng is neither a public official nor a public figure, the law explicitly presumes the existence of malice from the defamatory character of the assailed statement. For their defense, the accused must show that they have a justifiable reason for the defamatory statements even if it were in fact true. Lamentably, the defense miserably failed in this regard.”

At the same time, there is “actual malice” or malice in fact” when the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not. The reckless disregard standard used here requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published.”

Rappler did not verify the accuracy of the derogatory article on Keng linking him to crimes like murder, illegal drugs, human trafficking, and smuggling, and implying the businessman had a shady past. Keng requested Rappler to publish his side of the story. Rappler refused.

Moving forward, the libel provision of the Cybercrime Prevention Act must be repealed. The prescriptive period for filing a libel case should only be one year, as provided under the Revised Penal Code. And the penalty must be lighter.

Libel, after all, is basic to the exercise of press freedom and freedom of expression. What is expression without curses, expletives, and malicious allegations? President Duterte knows that.

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Topics: Tony Lopez , The new libel , Maria Ressa , Rappler , Cyberlibel , Cybercrime Prevention Act of 2012 , Republic Act 10175
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