While the Cybercrime Prevention Act of 2012 has added online media as a new medium for committing libel, the bedrock constitutional principles on freedom of speech and of the press remain unchanged and must continue to guide courts in determining liability for libel.
The recent conviction of Rappler’s Maria Ressa and Reynaldo Santos, Jr. for cyberlibel is seen as the looming specter of authoritarianism and a serious blow to press freedom in the Philippines, both locally and internationally. Looking at it from a purely legal standpoint, in my humble opinion, the conviction is equally questionable for its failure to apply important constitutional principles and misapplication of the law.
Ressa and Santos were convicted of cyberlibel for publishing on Rappler’s online platform an article about the use of luxury vehicles by former Supreme Court Chief Justice Renato Corona during his impeachment trial. The article mentioned that the registered owner, Filipino-Chinese businessman Wilfredo Keng, of one of the luxury vehicles was being investigated for alleged involvement in human trafficking, drug smuggling and murder of a councilor based on a report allegedly obtained by Rappler and an article on the newspaper Philippine Star.
In the decision penned by Manila Regional Trial Court Judge Estacio-Montessa, she said that the article ascribed to Keng the commission of crimes which tended “to dishonor, discredit or put him in ridicule” and “created in the minds of ordinary readers that [he] has a disgraceful reputation.”
Libel is the public and malicious imputation of a crime or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. These imputations are considered defamatory and punishable as criminal libel; if the defamatory statements are made online, they are punishable as cyberlibel.
In determining the defamatory character of speech, whether made online or not, courts should take into consideration the constitutional protections on freedom of speech. According to the landmark U.S. Supreme Court case of New York Times v. Sullivan, which has been adopted by the Philippine Supreme Court, if the defamatory statements are made against public officials the speaker will only be liable for libel if there is malice, which is defined as personal ill will or spite or when a person speaks not in response to duty but merely to besmirch the reputation of another.
It is present when the writer knew of the falsity of the statements made or was guilty of reckless disregard as to the truth or falsity of such statements. An example of the latter would be a journalist receiving a tip that a judge was removed from his position because of corruption; if the journalist also received information that the judge merely retired, but nevertheless wrote an article saying that the judge was removed for corruption without verifying what was really the truth, the journalist would be guilty of reckless disregard as to the truth or falsity of the article.
Even if the statements made against a public official turn out to be false, as long as the one who made them did not act with malice – no knowledge of the falsity of the statements or reckless disregard as to their truth or falsity – the speaker or writer will not be guilty of libel. Liability attaches only when there is malice. This is known as constitutional defamation or political libel as opposed to private libel.
In private libel, which occurs when defamatory statements are made against a private individual who is neither a public figure nor involved in a public matter, malice is presumed. In other words, there is no need to prove the existence of malice. It will be up to the speaker or writer to prove that there was no malice in making the defamatory statements to escape from liability.
In political libel the complainant must prove malice. The reason for the difference in treatment is the constitutional protection on freedom of speech and of the press. When an issue involves public officials or matters of public concern courts should not limit themselves within the confines of the libel statute and must examine the case guided by the constitutional principles on freedom of speech and of the press; the people and the press should be given more leeway in speaking their minds, especially in criticizing the action and conduct of public officials. As the Supreme Court eloquently said in one case:
“The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. . .”
In the Ressa and Santos case, Judge Estacio-Montessa was mistaken in finding that the rules of political libel does not apply by limiting her determination that Keng was neither a public official nor a public figure. There is, however, another basis which the judge failed to apply, that is if a private individual is involved in a public matter or issue. In the 2009 case of Villanueva v. Philippine Daily Inquirer, Inc. the Supreme Court ruled that even if the complainant is not a public official or figure, the alleged defamatory statements will still be considered privileged and therefore will not be presumed malicious if he or she is involved in a public issue.
The article of Santos concerns CJ Corona during his impeachment trial which is clearly a matter of public concern. Keng was involved in a public issue, namely the use of his SUV by CJ Corona instead of his official vehicle which can be a legitimate line of inquiry: why would the chief justice use Keng’s luxury vehicle instead of his assigned car? As explained by the Supreme Court in Villanueva “[t]he public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant’s prior anonymity or notoriety.” Such being the case, the statements of Santos should be considered privileged where malice cannot be presumed.
A finding that the case of Ressa and Santos falls under the principles of political libel and therefore privileged is extremely important because in such case, malice cannot be presumed against them in publishing the alleged defamatory article. Furthermore, even if the information in the article is proven false the prosecution must still prove that Ressa and Santos acted with malice.
As previously mentioned, malice can only be proven by showing that defendant either knew that the statement was false or had reckless disregard as to the truth or falsity of the statement. Judge Estacio-Montessa said that Ressa and Santos published the article with reckless disregard as to whether it was false or not because they were aware of the probable falsity of the article when Keng’s attorney, Leonard De Vera, called their attention and pointed inaccuracies in the article and submitted to Rappler a PDEA certification that Keng had no derogatory records.
However, the decision itself mentions that De Vera only contacted Rappler sometime in 2016 – after the article was published in 2014. In other words, prior to or at the time the article was first published in 2012 and subsequently updated in 2014, there was no evidence presented that Santos or Ressa were aware of the probable falsity of the statements concerning Keng. So, if defendants’ attention was called regarding the probable falsity of the information it was after the article was published or “republished” already, and not before. The judge cannot, therefore, ascribe malice after the fact; the presence of malice cannot retroact as it must be present prior to or simultaneously with the writing and publication of the alleged defamatory article.
Reckless disregard as to whether the statements are true or false means more than mere negligence. It requires a high degree of awareness of the probable falsity of the statements. In the 2005 case of Flor v. People of the Philippines, the Supreme Court discussed the meaning of reckless disregard by citing the following declarations of the U.S. Supreme Court in the case of St. Amant v. Vincent:
[R]eckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
The fact that Santos failed to verify with the appropriate government agencies if Keng was indeed being investigated for serious crimes before publishing the story is not sufficient to show malice. There must be evidence that prior to the 2012 publication of the article or prior to its “republication” in 2014, he received information that the report about Keng was false or fabricated. The decision mentioned no such evidence. In fact on page nine of the decision, paragraph three, it says that Keng remained silent after becoming aware of the 2012 article because of the advise of his lawyer not to make an enemy of the media and “he did not want to be exposed to more bad publicity, so he decided to just endure it, thinking it will eventually fade.” Clearly, neither Keng nor anyone acting on his behalf notified Santos or Rappler that the article contained false information about Keng before it was published.
The prosecution failed to present proof beyond reasonable doubt that Santos and Ressa had high degree of awareness that the report about Keng were probably false. In the Flor case, the failure of the defendant to confirm the information supplied by his unidentified source which became the basis for the news article that allegedly defamed then Camarines Sur Governor Luis Villafuerte and to give Villafuerte the chance to air his side were relied upon by the prosecution to establish the element of reckless disregard for truth. Judge Estacio-Montessa was of the same erroneous view.
In not giving credence to this argument, the Supreme Court said “[w]hile substantiation of the facts supplied is an important reporting standard, still, a reporter may rely on information given by a lone source although it reflects only one side of the story provided the reporter does not entertain a “high degree of awareness of [its] probable falsity.”
In a criminal case the accused enjoys the constitutional presumption of innocence. The burden to prove the charges rests on the prosecution. A reading of Judge Estacio-Montessa’s decision does not show that the prosecution discharged its burden that Ressa and Santos had malice when they published the report about Keng’s alleged involvement in criminal activities.