Is Maria Ressa liable for libel?

To set the record straight at the outset, Maria Ressa was indicted by the Department of Justice (DOJ) for the “republication” by Rappler of an allegedly libelous online article on Feb. 19, 2014, not for its original posting on May 29, 2012.

In fact, the DOJ’s Resolution, dated Jan. 10, 2019, exonerated Ressa from libel arising from the original posting. In unmistakable language, it ruled that the “first publication of the article on 29 May 2012 is not covered by the Cybercrime Act of 2012, considering that the law was promulgated only in September 2012…”

However, the DOJ charged her (and article writer Reynaldo Santos Jr.) only “with respect to the 19 February 2014 publication,” holding that “[u]nder the ‘multiple publication rule,’ a single defamatory statement, if published several times, gives rise to as many offenses as there are publications.”

To buttress its ruling, it cited Soriano vs IAC (Nov. 9, 1988) which decreed, “We follow the ‘multiple publication rule’ in the Philippines… every time the same written matter is communicated such communication is considered a distinct and separate publication of the libel.”

Moreover, the DOJ added that “the offense charged has not prescribed. Under RA 10175 (Cybercrime Act of 2012), if libel is committed by, through and with the use of information and communications technologies, the nature of the crime changes… to cyber libel” which, it said, prescribes in 12 years.

Clearly then, Ressa was not charged with ordinary libel under the Revised Penal Code (RPC) which prescribes in one year. Therefore, in my humble view, her defense of prescription is wobbly since, to repeat, she was indicted under the Cybercrime Law, not under the RPC.

Neither is her defense of ex post facto law viable, because she was charged with a “republication” that happened when the Cybercrime Law was already in effect. She was not accused of ordinary libel that happened in 2012, which the DOJ itself conceded had already prescribed.

Simply stated, an ex post facto law punishes an act done on an earlier date when it was not punishable. Example: A pedestrian crossed a street on Jan. 1, 2019. A month later, a new law was passed punishing that very act of jaywalking on Jan. 1. This would be an ex post facto law that the Constitution expressly prohibits.

Because the DOJ did not invoke an ex post facto application of the Cybercrime Law, Justice Secretary Menardo Guevarra insisted he broke no law in filing the criminal charge and dared Ressa to sue him if she thought he violated her rights.

Nonetheless, I think Ressa has viable defenses in her favor. For example, she can argue that no libel, whether ordinary or cyber, was committed. She can show that the Rappler article was “privileged” in the sense that it was “a fair commentary on a matter of public interest.”

Borjal vs CA (Jan. 14, 1999) and similar cases held that “honest criticisms on the conduct of public officials and public figures are insulated from libel judgments.” And “public figure” refers to “anyone who has arrived at a position where the public attention is focused upon him as a person.” Of course, Ressa has to prove that complainant Wilfredo Keng, a private individual, has attained the level of a “public figure.”

That the warrant of arrest was served after office hours, leading to her inability to post bail and to her vexatious overnight detention, is deplorable but will not, unfortunately for her, have much legal effect on her alleged culpability for cyber libel. But it can be a cause for administrative sanctions against the offending public officials. Already, the National Bureau of Investigation is looking into the liability of its agents.

Other possible defenses, which I have no more space to discuss, are whether “republication,” an old RPC jurisprudence, applies to the new cyber libel, whether Ressa’s constitutional rights to equal protection have been violated due to “selective justice,” and whether probable cause, in the first place, exists.

As always, the caveat in all litigations is that perceived facts must be converted to legal facts by the lawyers of both sides via the rules of evidence; otherwise, courts cannot use them in their judgments.

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