Cyberlibel and Maria Ressa

To be fair, the 37-page decision (fortified by 170 footnotes) of Judge Rainelda H. Estacio-Montesa convicting celebrated journalist Maria Ressa (and Reynaldo Santos Jr.) is not baseless or capricious. Nonetheless, it deserves to be appealed to the Supreme Court for reasons I will explain.

Like most trial court judgments, it began with the Information alleging that “on or about 19 February 2014” the accused “re-publish[ed] an article…” in the website of Rappler that “maliciously and publicly branded” Wilfredo Keng, a private citizen, “as a human trafficker, a drug and contraband smuggler, and worst, a murderer.” (Pages 1, 35)

Then, it detailed the arraignment, the unsuccessful mediation, the pretrial, the stipulations, and the testimony of the six prosecution witnesses (including Keng) and of the two for the accused.

Finally, it carefully explained its ruling by (1) reproducing the law on cyberlibel, (2) discussing the “elements” of such law, and (3) explaining how the application of the law to the proven facts inexorably led to the guilty verdict; in short, it applied the formula “law times facts equals decision.” Obviously, Montesa adhered to John Austin’s legal philosophy upholding “dura lex sed lex.” All these deserve discussion, but I have space for only three crucial items.

First, libel — understood simply as the public and malicious imputation of a crime, vice, or defect tending to cause dishonor via the print media — is penalized by the old Penal Code. However, the new Cybercrime Prevention Act of 2012 (Cybercrime Law) extended its reach to imputations “committed through a computer system or any other similar means…” and increased the penalty therefor.

Unquestionably, the article publicly imputed despicable crimes tending to dishonor Keng. The prosecution proved that Keng was never charged with, much less convicted of, the crimes imputed to him. But was the imputation “malicious”? Answer: When the offended party is not a public officer or a public figure, MALICE IS PRESUMED BY THE LAW; it need not be proven by the prosecution.

Given that Keng is a private citizen, the judge correctly stressed that the burden of proof to show lack of malice was shifted by the law to the accused. “Lamentably, the defense miserably failed in this regard” (Page 18). Oddly also, both accused opted not to testify to show that the article was “a fair comment on a matter of public interest,” as advised in my 2/24/19 column.

Second, the accused theorized they could not be retroactively punished by the Cybercrime Law because it was passed only in September 2012 after the original article had been posted. Montesa, however, held that the Information clearly charged them for the article “republished” on Feb. 19, 2014, adding that every republication is a separate crime per existing jurisprudence.

Third, under the Penal Code, libel prescribes in one year. Since the article was “originally published” by Rappler on May 29, 2012 and “updated” on Feb. 19, 2014, the accused argue that the crime had prescribed because the Information was filed in court only on Feb. 5, 2019, beyond the one-year period.

However, Montesa held that the one-year prescriptive period applies only to ordinary libel, not to cyberlibel, because the Cybercrime Law prescribes a heavier penalty for cyberlibel (six months and one day to six years) without providing a new prescriptive period.

So, the judge applied Act No. 3326 which states that violations of special laws which do not expressly state their prescriptive periods, “shall prescribe…after twelve years” for offenses punishable by “imprisonment for six years or more…”

Again, using John Austin’s robotic syllogism, the judge concluded that “clearly, prescription has not yet set in” (Page 23).

In sum, I think the article is indeed libelous. However, the accused can still be acquitted based on prescription if they appeal and the Supreme Court sidesteps John Austin’s strict syllogism and embraces Roscoe Pound’s more liberal sociological school of jurisprudence that regards law merely as a brick — an important one — in the building of a just and humane society.

Tomorrow, June 22, is the 100th birthday of the late Dr. Jovito R. Salonga, my esteemed guru, a respected scholar, low-profile educator, brilliant lawyer, outstanding lawmaker, acclaimed patriot, and statesman par excellence.

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