Q&A on cyberlibel

My email inbox was peppered with questions regarding last Sunday’s column titled “Cyberlibel and Maria Ressa.” I will answer some within my limited space.

Q1: Citing a Supreme Court decision in 2014, some critics claim that libel and cyberlibel are really one and the same crime committed via different means. If so, should they not have the same penalty and prescriptive period of only one year?

A: Disini v. SOJ (Feb. 11, 2014) held that “cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the [P]enal [C]ode already punishes it. In effect, [the Cybercrime Law] merely affirms that online defamation constitutes ‘similar means’ for committing libel.” It did not say they are “really one and the same crime.” Also, the quoted statements were made to justify the constitutionality of cyberlibel, not to rule it should have the same penalty and prescription as ordinary libel.

While they may belong to the same genre of crimes penalizing defamation, they are different and distinct offenses. To understand the distinction, think of this: Homicide is the killing of a person. Murder is also the killing of a person, but is a separate crime that carries a heavier penalty.

Q2: Why? A: Because murder is killing qualified by evident premeditation, or treachery, etc., which makes it more obnoxious. Similarly, cyberlibel is defamation qualified by the use of “a computer system or similar means,” which makes it more obnoxious.

Q3: Why more obnoxious? A: Because the use of computers and other new technologies can circulate the defamation much easier and faster than printed media “to unjustly ruin the reputation of [and/or to bully] another.”

Q4: Is cyberlibel constitutional? A: The same case of Disini v. SOJ ruled that online libel and its heavier penalty are “VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it.” (Caps in original)

Q5: Do our laws on libel and cyberlibel violate the International Covenant on Civil and Political Rights? A: Disini v. SOJ answered “No” because our Penal Code recognizes truth as a defense as provided in the Covenant “under the condition that the accused has been prompted in making the statement by good motives and for justifiable ends… Besides, the [UN Human Rights Committee] did not actually enjoin the Philippines… to decriminalize libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression…[which] carries with it special duties and responsibilities.”

Q6: Has Wilfredo Keng attained the status of a “public figure” given his testimony that “Forbes ranked him as one of the Philippines’ Top 40 Richest individuals,” that he was described as “a low-key figure in business with a massive fortune,” and that “he has also been commended… for his donations for scholarships and sports [of] about [P2m] each year?”

A: Assuming Keng had indeed attained the status of a public figure, still Judge Rainelda Montesa held that there was ACTUAL, in addition to PRESUMED, MALICE because the accused composed the “defamatory statement with the knowledge that it [was] false or with reckless disregard of whether it was false or not” as shown by: (1) “Santos wrote the subject article sans verification [of its] veracity…,” (2) “contrary to the standard maintained by Rappler, as testified to by [defense witness] Hofileña stressing… accuracy, truth telling, fairness and balance… [and] that fairness and balance is all about getting the other side of the story.” And yet, (3) for about seven months, Rappler adamantly refused “despite numerous follow-ups…” to publish Keng’s side “on the ground that there [was] more urgent news at the time” (Pages 19-20).

To rebut these and secure their outright acquittal, Ressa and Reynaldo Santos Jr., to repeat last Sunday’s column, should have taken the witness stand to magnify Keng’s status as a public figure and to prove their lack of actual malice. Sadly for them, they did not. Thus, the judge convicted them.

Q7: Your column said the Rappler article is libelous yet the accused can be acquitted on appeal based on prescription. How? A: Prescription simply means that the accused (even if guilty) can no longer be penalized due to the passing of time. I have no more space now. I will explain “how” next Sunday.

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