Rappler case: Where’s the malice?

Having gone through a P10-million suit for “scurrilous libel” during the martial law regime under the Marcos dictatorship when press freedom was under siege, I awaited with bated breath and a prayer the verdict last Monday on the so-called cyberlibel case against online news website Rappler, its CEO and executive editor Maria Ressa, and writer-researcher Reynaldo Santos Jr. The complainant was businessman Wilfredo Keng.Judge Rainelda Estacio-Montesa’s verdict: guilty for Ressa and Santos. My heart sank to my feet. Questions began crowding my mind, foremost among them: Was malice on the part of Ressa and Santos proven?

A mere technicality sealed the case when the date of posting of the offensive 2012 article was “errantly extended” (to quote Albay Rep. Edcel Lagman) or questionably moved to 2014 because a misspelling was corrected in 2014, or two years after the Cybercrime Prevention Act of 2012 was passed. This put the article within the prescription period of 12 years after publication or posting.

Keng filed the libel complaint only in 2017 or five years after he probably first read his name in the article that was not about him, but mainly about then Chief Justice Renato Corona who was being impeached. Mentioned was Keng’s alleged connection to him. Rappler brought out some goods on Keng based on a raw intelligence report. Keng’s lawyer said they sought redress from the court because of Rappler’s failure to publish Keng’s side. But why the delayed reaction?

What I know about libel is that (1) truth is the accused’s best defense, and (2) the burden of proof of malice is on the accuser or the prosecution. Is there enough proof of it?

The cybercrime law does not define cyberlibel and has only a mere one sentence on it. “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.”

In the RPC, libel falls under Crimes Against Honor. Article 353 defines libel 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.” But because it is “cyber,” it imposes a penalty higher than that for regular libel.

Article 362 on malice: “Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.” Article 354: “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown…”

Libel lawyers and judges know that the burden of proof on malice lies on the accuser. Is the accused harboring grudges or has scores to settle? Was there really a desire to malign? Was there a malicious reason for Rappler to write ill of Keng? Did the prosecution prove there was? We’ll see how this goes in the Court of Appeals.

Lapses on the part of overworked, deadline-beating journalists do not always mean malice. Leniency on the part of the judge could be expected. This is not to say that there are no miscreants in media who strut about like the world owes them.

As I said earlier, truth is its own defense. I was ready to go to battle in court but my lawyers, Joker Arroyo and Rene Saguisag among them, thought it best to bring the case to the Department of Justice. I had an armful of evidence to prove the truth of my story, photographs and statements from victims of military abuses. I was there.

And my accuser? Not a hint of his identity in my article and I did not know him from Adam. The general simply emerged from the woodwork, trotted out by his superiors to be my tormentor. What malicious motive would I have to tarnish the poor soul? I could have turned the tables against him, but the 1986 People Power happened. The case was dropped. But it is in the books for journalists to study.

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