I reread the decision convicting Maria Ressa and Reynaldo Santos Jr. of cyberlibel. I wanted to find legal and honorable ways showing that they were innocent of defamation, or at least, that they had just and valid reasons for the controversial article. Regrettably, I did not find any.
The only viable defenses, I think, are (1) the “republication” of the article (with a typo correction) on Feb. 19, 2014 was no longer criminal and (2) the crime has prescribed. These defenses, like the movie “Saving Private Ryan,” can be risky and costly but could result in a barren, not triumphant, acquittal.
Having said that, I still reiterate that Ressa and Santos should have testified to defend themselves and to widen the crack in the prosecution’s armor: Wilfredo Keng’s status as a “public figure.”
Also, by testifying, the accused could have shown that Keng was TRUTHFULLY charged with, or at least investigated for, the offenses imputed to him; or they had justifiable motives for the reposting; or they were protecting public interest in good faith; or they had good reasons for not posting a Rappler staffer’s report explaining Keng’s side. In short, if they had testified, they could have been acquitted on the merits because they committed no crime. A complete and honorable victory!
Moreover, if they thought the Duterte administration was out to stifle media’s freedom of expression, they should have testified so. As I have always said, judges decide cases only from the evidence vetted in court, not from street parliaments and media utterances. It is unfair to accuse the judiciary of bias, incompetence, subservience, or corruption for ignoring out-of-court tirades.
The defense of republication runs like this: The accused cannot be punished for publishing the offending article on May 29, 2012 because the Information did not allege and the prosecution did not prove it. Its republication on Feb. 19, 2014 (with a typo correction), though alleged in the Information and proven by the prosecution, can no longer be a source of conviction.
This defense is barely viable, because it does not deny the crime; only that it was committed on an earlier date. Think of this parallel: If a defamation printed on the earlier date is printed again or republished (with a typo correction) on the later date, wasn’t there a new libel via “republication”?
Similarly, if a defamation posted on a website on the earlier date is reposted on the later date, wasn’t there a new cyberlibel committed via republication? Also, if a girl is raped on the earlier date and raped again on the later date, wasn’t there a new commission of rape?
The second defense is based on the theory that cyberlibel is merely a new form of libel committed through computer technologies and, therefore, should have the same prescription as ordinary libel of one year. And, in case of doubt, penal laws should be interpreted to favor the accused. The one-year period is favorable to the accused; ergo, it should be used to acquit them.
However, this defense goes squarely against a resolution of the Supreme Court in Tolentino v. People (Aug. 6, 2018) ruling that cyberlibel “prescribes in 15 years,” and holding in no uncertain terms that a cyberlibel complaint filed beyond one year “was well within the prescriptive period.”
In my June 14 column, I humbly suggested an appeal direct to the Supreme Court, not to any lower tribunal, because only the Supreme Court en banc can reverse or modify a Court resolution or decision.
If that appeal happens, I hope the justices would, like me, veer to the sociological school of jurisprudence in resolving public interest cases. I adhere to the one-year rule because, philosophically, I believe that society is better served when cases are filed and prosecuted speedily.
Also, as I have written in many books, I further believe that independent judiciaries and independent media are natural partners in safeguarding truth, fairness, and accountability, one from the silence of the peaks and the other from the blare of the valley.
I end with the caveat that acquittal via republication and/or prescription does not mean absence of defamation; only that the accused, even if guilty, cannot or can no longer be punished. They are legal but less than victorious ways to acquittal. They do not serve truth, only legal hermeneutics. The best acquittal is a judgment that the accused did not commit any crime.
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