Defamation / Reputation
Afanasyev v. Zlotnikov
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The Manila Regional Trial Court Branch 46 in the Philippines found Maria Ressa, the executive editor of the online news website Rappler, and the journalist Reynalodo Santos Jr guilty of “cyberlibel”. The case was brought following a 2012 Rappler story concerning the businessman Wilfredo King’s alleged involvement in “human trafficking and drug smuggling,” as well as his links to then-Supreme Court chief justice Renato Corona. The Court convicted Ressa and Santos pursuant to Section 4(c)(4) of the 2012 Cybercrime Prevention Act (CPA), and sentenced them to imprisonment of up to six years and a fine of PhP 200,000 (approximately USD 4,000). Although the original article was published before the law was passed and four years prior to the charges bring brought, the Court reasoned that the article was “republished” on 19 February 2014 when Rappler updated their article to fix a typographical error. Further, as the CPA does not expressly include a prescriptive period to bring charges, the Court found that Republic Act No. 3326 applies, which provides a 12-year prescriptive period. Finally, the Court recognized the importance of the right to freedom of speech under the Philippines Constitution, but found that the defendants failed in their journalistic responsibilities to verify the facts and to publish the requested clarifications or corrections. Considering the influence of online news organizations, the Judge noted that the “keyboard is now mightier than the pen,” making cyberlibel far more serious than traditional libel.
On May 29, 2012, Rappler reporter Reynaold Sants, Jr. published an article titled “CJ using SUVs of ‘controversial’ businessmen”. Among those named in the article was Wilfredo Keng, one of the richest businessmen in the Philippines. The article details Keng’s involvement in a controversy surrounding former Chief Justice Renato Corona, who was later impeached. Allegedly, a car belonging to Wilfredo Keng had been used by the Supreme Court Justice. The article further claims that Keng was under investigation by the National Security Council for involvement in “human trafficking and drug smuggling,” an unsolved “murder case,” “smuggling fake cigarettes” and illegal immigration practices.
On September 12, 2012, the Cybercrime Prevention Act of 2012 (CPA) was signed into law by President Beningno Aquino II and went into force on October 3. Among the actions criminalized by the law is “cyberlibel.” On October 8, 2012, the Supreme Court issued a temporary restraining order, pausing implementation of the law for 120 days. On February 18, 2014, in a Supreme Court ruling Disini v. Secretary of Justice (G.R. Nos. 203335, et al.), the restraining order was lifted. The Court declared that most of the law, including the “cyberlibel” provision, was constitutional.
On February 9, 2014, a typographical error was amended in the Rappler article: “evation” was corrected to “evasion.” The article is still available on the Rappler website.
On January 10, 2017, Keng filed a complaint-affidavit before the National Bureau of Investigation (NBI) to charge Santos, Jr. and Ressa, along with Rappler’s treasurer James Bitanga and six others, with cyberlibel. Keng requested that the article be removed from the Rappler website and for his side to be published. Keng claimed that he and his family members had “felt humiliated and deeply bothered by the false image that Rappler and the accused painted of him.” [p. 9] Concerning his business, Keng testified that the article “has had a negative impact on his occupation.” [p. 10] The Cybercrime Department of the NBI was initially sympathetic, despite the fact that the CPA was passed after the supposed crime, as their legal department believed that a theory of “continuous publication” made the offense chargeable. Essentially, as the article remained online, the server “published” it whenever it was accessed. On February 22, 2018, however, the NBI dismissed the complaint as the one-year prescription for the filing of libel had long since passed.
On January 10, 2019, The Department of Justice (DOJ) subsequently recommended the filing in Court of “cyberlibel” charges against Rappler, Maria Ressa, and Reynaoldo Santos, Jr. The DOJ reasoned that on February 19, 2014, the editorial change amounted to a re-publication, so charges could proceed. The DOJ further argued that, while regular libel has a prescriptive period of one year in the Philippines, the CPA does not define a prescriptive period for cyberlibel. Therefore, the DOJ reasoned that it must be 12 years, as Act No. 3326 defines.
On February 13, 2019, Maria Ressa was arrested and later bailed. On May 14, 2019, Ressa and Santos, Jr. were arraigned and both refused to enter a plea. The Court entered separate pleas of not guilty for each of the accused. On July 23, 2019, their trial began.
Manila Regional Trial Court Judge Rainelda Estacio-Montesa delivered the opinion of the Court.
The central issue before the Court was whether or not to charge the accused Reynaldo Santos, Jr. and Maria Rssa with “cyberlibel,” contrary to section 4(c)(4) of the 2012 Cybercrime Prevention Act (CPA). Libel is defined under the statute as: “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”. [p. 14] The elements of libel are made out in Article 355 of the Revised Penal Code: “(a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.” [p. 14] The act must also be committed through the “use of a computer system” to constitute “cyberlibel.” The Court addressed each element separately.
First Element: Discreditable act or condition concerning another
The first element requires “the allegation of a discreditable act or condition concerning another.” [p. 14] The Court set out that an allegation is defamatory if it “ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt or which tends to blacken the memory of one who is dead.” [p. 14] An analysis as to whether a statement is defamatory requires a consideration of the words “in their entirety… in their plain, natural and ordinary meaning.” [p. 14]
The Court found that the subject article published by Rappler on May 29, 2012 was defamatory. Several crimes were imputed upon Keng, including human trafficking, drug smuggling, involvement in a murder case, the smuggling of fake cigarettes and the involvement of Keng in illegally granting special investors residence visas. The prosecution refuted these imputations by presenting the Court with two letters from Philippine Drug Enforcement Agency and a clearance from the National Bureau of Investigation.
Second Element: Publication of the charge
The second element requires “the publication of the charge.” [p. 14] Publication in libel cases refers to “making the defamatory matter, after it is written, known to someone other than the person against whom it has been written.” [p. 16]
The Court found that the second element was likewise established. The subject article had been published on the Rappler website on 29 May, 2012 and was edited on 19 February, 2014. The Court held that the typography correction in 20114 was “actually a republication.” The Court applied the doctrine of republication, citing Brillante v. CA G.R. Nos. 118757 & 121571 to note that: “a single defamatory statement, if published several times, gives rise to as many offenses as there are publications.” [p. 16] As the original article published on 29 May, 2012, is no longer available online, only the 19 February, 2014 edit, the Court determined that the subject article was republished.
The defense argued that the edit on 19 February, 2014 was merely a correction of a typographical error. The Court, however, found that the defense failed to “adduce evidence indicating the error” or “substantiate her testimony with documentary evidence, making it self-serving and deserving of scant consideration from this Court.” [p. 17]
Third Element: Identity of the person defamed
The third element requires there to be a reference to “the identity of the person defamed.” [p. 14] Keng was referenced both by name and by the corporations through which he is president. As such, the Court held that the third element was made up.
Fourth Element: Existence of malice
The fourth element requires “the existence of malice.” [p. 14] According to the Court, malice “connotes ill will or spite and speak[ing] not in response to duty but merely to injure the reputation of the person defamed” and implies “an intention to do ulterior and unjustifiable harm”. [p. 18] It can be shown if the author “made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.” [p .18]
The Court distinguished “malice in law” and “malice in fact”. Malice in law can be presumed from the “defamatory character” of the subject statement where the offended party is a private individual. (Disini, Jr. v. The Secretary of Justice, G.R. Nos. 203335 et al.) [p. 18] As the prosecution had shown that the complainant was a “private person being a businessman”, it had discharged its burden to prove malice. As Keng was not considered to be a public figure, the law “presumes the existence of malice from the defamatory character of the assailed statement.” [p. 18] The Court found that the defense “miserably failed” to rebut this presumption, which would require a “justifiable reason” for the impugned statements even if they were true.
The Court also found that actual malice, or malice in fact, was made out in this case. Actual malice arises when the offender makes the defamatory statement knowing that it is false or with “reckless disregard” as to whether it is false. Reckless disregard refers to a “high degree of awareness of probable falsity.” [p. 19] First, the Court noted the accused’s “utter lack of verification” of the article, contrary to the journalistic standards of “accuracy, truth telling, fairness and balance.” [p. 19] Secondly, the Court noted the failure of the accused to post any “clarificatory” statements despite the complainant’s lawyer’s frequent requests and submission of the complainant’s PDEA certification. The Court rejected the accused’s submission that there was more urgent news to post at the time.
Fifth Element: Committed through a computer system
The fifth element requires the publication of the defamatory statement via a “computer system.” [p. 14] A computer system is defined under Section 3(g) of the CPA as “any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones.” [p. 21]
The Court found that the libelous act was committed through a computer system, as admitted by both the prosecution and the defense.
Prescription of the Offence
The Court held that the offense had not yet been prescribed. Judge Estacio-Montesa repeated that the subject article was republished on 19 February, 2014. Since the CPA 2012 does not specifically refer to a penalty for cyberlibel, the Court referred to Article 355 of the Revised Penal Code. The Implementing Rules and Regulation of RA No. 10175 clarify that the penalty for cyberlibel is: “prison correccional in its maximum period to prison mayor in its minimum period.” [p. 23] Accordingly, the Court held that the offense shall prescribe after 12 years. As the case was filed on 5 February, 2019, it was within the 12 year period of the republication of the article and prescription was not found to have set in.
The Court further noted that Cyberlibel under section 4(c)(4) CPA is a separate and distinct offence from ordinary libel punished under Article 355 of the Revised Penal Code. The CPA provides for a “higher and distinct penalty” as cyberlibel is considered “a more serious offense than ordinary libel.” [p. 23] Thus, the Court held that the ordinary prescriptive period for libel of one year does not apply.
Freedom of Expression
As a final note, the Court considered the importance of the right to freedom of speech under the Philippines Constitution. The Court acknowledged the right to “speak freely without fear of retribution or retaliation” and the right of the press to “freely report news and opinion without undue restraint.” [p. 32] However, the Court noted that the freedom of the press is not unlimited, citing the opinion of the Philippines Supreme Court in Tulfo v. People, G.R. Nos. 161032 and 161176, September 16, 2008: “This Court does not turn a blind eye to some of them who twist the news to give an ambiguous interpretation that is in reckless disregard of the truth.” [p. 33]
The Court quoted the Journalists’ Code of Ethics exhorting journalists to “recognize the duty to air the other side and the duty to correct substantive errors promptly”. [p. 34] Judge Estacio-Montesa remarked that the accused did not “offer a scintilla of proof that they verified the imputations of various crimes in the disputed Article.” [p. 34] Nor did they publish a clarificatory article, despite the pleading of Keng over seven months.
Accordingly, the Court warned that the “right to free speech and freedom of the press cannot and should not be sued as a shield against accountability.” Considering the influence of internet media, Judge Estacio-Montesa noted that the “keyboard is now mightier than the pen,” particularly for online news organizations. As such, the Court did not recognise any curtailment of the right to freedom of speech and of the press. In support of this conclusion, the Court quoted Nelson Mandela: “to be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others.” [p. 36]
Therefore, the Court found the prosecution’s evidence sufficient in establishing the guilt of both Accused Reynaldo Santos, Jr. and Maria Ressa beyond reasonable doubt for Violation of Section 4(c)(4) of 2012 Cybercrime Prevention Act. They were each ordered to pay Wilfredo Keng two hundred thousand pesos in moral damages and two hundred thousand pesos in exemplary damages. Rappler, Inc. was found to have no corporate liability under Section 9 of the CPE.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression as it risks imposing a chilling effect on press freedom and the right to freedom of expression in the Philippines, particularly for all those operating in the digital space. The decision adopts a wide definition of the elements of the cyberlibel offence, such that it would be fairly easily established by the prosecution. For example, malice can be presumed from the defamatory character of the subject article, and “re-publications” by minor edits can give rise to multiple libel offences in respect of the same article. The judge also accepted the prosecution’s theory of “continuous publication”, as the statute of limitations on libel in the Philippines is just one year, greatly expanding the number of cases that could arise under the “cyberlibel” statute.
The decision is particularly concerning in the context of recent attacks on press freedom, including the shutdown of broadcast network ABS-CBN, the Anti-Terrorism Act of 2020, and the threats and attacks against news organisationsboth online and offline. The UN High Commissioner for Human Rights has described as “a pattern of intimidation” on media outlets investigating or criticizing the authorities (Press briefing note on Philippines and South Sudan, 15 February 2019). This case is one of eleven court cases filed against Rappler in recent years, as one of the staunchest critics of the Philippine President Rodrigo Duterte for their coverage of his war on drugs and government leadership.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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