Maria Ressa’s case and an antiquated rule
Libel laws, which abridge the freedom of expression, have invariably passed constitutional muster because of policy concerns to protect reputations.
An essential element of libel is publication, which occurs when the libelous statement is communicated by the offending party to a third party. Without publication, there is no reputation harmed; hence, no libel is committed.
An old English case law states that each communication of a libelous statement to a third party constitutes a new publication, which in turn gives rise to a new cause of action. This is called the multiple publication rule, which American courts have followed through the 19th century.
The adoption of the multiple publication rule suited small communities when the distribution of printed materials was minimal, thus limiting the exposure of publishers to libel suits.
The logic of the multiple rule has begun to be challenged with the breakthroughs in modern mass publication, which has allowed a single defamatory statement to reach an audience in millions, consequently exposing writers and publishers to countless lawsuits, while also rendering the limitation period to file lawsuits almost nugatory.
The rule was first adopted in the Philippines in Montinola v. Montalvo (1916), based on this American doctrine: “Every separate and distinct publication of a libel is a distinct offense, for which a separate action will lie, and a recovery of damages for the first publication is no bar to an action based upon its repetition or republication.”
The case of Soriano v. IAC (1988) has been cited by Judge Rainelda Montesa in finding journalist Maria Ressa guilty of “cyberlibel,” to highlight her point that the multiple publication rule since Montinola has remained the doctrine in the Philippines.
The Supreme Court in Soriano, holding that “We follow the ‘multiple publication’ rule,” has elucidated that: “The common law as to causes of action for tort arising out of a single publication was to the effect that each communication of a written or printed matter was a distinct and separate publication of a libel contained therein, giving rise to a separate cause of action. This rule (‘multiple publication’ rule) is still followed in several American jurisdictions, and seems to be favored by the American Law Institute. Other jurisdictions have adopted the ‘single publication’ rule which originated in New York, under which any single integrated publication, such as one edition of a newspaper, book, or magazine, or one broadcast, is treated as a unit, giving rise to only one cause of action, regardless of the number of times it is exposed to different people…”
Under the latter rule, a mass publication, such as an edition of a newspaper or a television broadcast, is considered to be a single publication regardless of the number of people to whom, or the number of jurisdictions in which, it is communicated. The new rule was considerably developed in the United States in the 1950s to prevent multiple suits, unburden judicial resources, and preserve defendants’ as well as plaintiffs’ rights. Pursuant to it, a cause of action arises when the publication is first made, and the prescriptive period commences to run from such a date. With the explosion of the Web, courts have approvingly taken stock of its application to online defamation.
Contrary to the aforesaid Philippine rulings, the multiple publication rule has long fallen into disfavor in majority of American courts, which now follow the single publication rule. Rightly so, especially with online publication, since it is essentially a mass publication on steroids that demands simplification.
The multiple publication rule has passed its logic and can only be retained in the Philippines at the risk of petrifying well-meaning communicators into self-censorship while disproportionately protecting the reputational concern of potential plaintiffs. The Supreme Court, at the appropriate time, should spare no effort abandoning this rule for being an unconstitutional abridgment of free expression.
Abe N. Margallo is a published author and a former Constitutional Law professor.
