FAQs: What you need to know about Rappler’s cyber libel case

MANILA, Philippines – On Wednesday, February 13, Rappler CEO Maria Ressa was arrested in connection with a cyber libel case filed by the Department of Justice (DOJ). The case stemmed from an investigative report published by Rappler in May 2012.

Here are frequently asked questions and answers regarding the case. Also read the timeline of events relevant to this case here: TIMELINE: Rappler's cyber libel case.

Q: What are the facts of the case?

In May 2012, Rappler published a story titled, "CJ using SUVs of 'controversial' businessmen," which raised questions about the propriety of former chief justice Renato Corona, who was undergoing an impeachment trial at the time, using luxury vehicles owned by businessmen when he had been issued by the Supreme Court his own vehicle. 

The story mentioned businessman Wilfredo Keng, who was found to have been the owner of a black Suburban that was used then by Corona in 2011. Court sources had said the former chief justice had been using that vehicle traced to Keng. This triggered a background check on Keng which yielded information that was added to the story. He was traced in China, his side was sought and included in the story.

More than 5 years later, in October 2017, Keng filed a case with the National Bureau of Investigation (NBI) cybercrime division, claiming that the 2012 investigative report linking him with illegal drugs and trafficking did not observe “the ethical standards of journalism.” The allegations were based on an intelligence report and previously published stories.

On January 18, 2018, the NBI issued subpoenas to Maria Ressa and Reynaldo Santos Jr over the complaint. On January 22, Ressa appeared before the NBI for an initial hearing. She and Santos filed counter affidavits the next month, arguing that cyber libel, like libel from the Revised Penal Code, could only apply within a year after a story’s publication.

Later, on February 22, 2018, the NBI junked Keng's complaint, affirming that the one-year prescriptive period for libel had already lapsed.

But on March 2, 2018, the NBI recommended to the justice department that Rappler be prosecuted for cyber libel. NBI cybercrime division chief Manuel Antonio Eduarte said that the theory of continuing crime or "continuous publication" applied.

On February 12, 2019, Presiding Judge Rainelda Estacio Montesa of the Manila Regional Trial Court Branch 46 issued the arrest warrant against Ressa and Santos in connection with the complaint.

The NBI waited until around 5 pm on February 13 to serve the warrant. By that time, regular courts had closed. This is an age-old tactic used to get the accused to spend time in detention. The media arrived in the Rappler office after hearing of news that NBI agents were there to arrest Ressa.

We asked the NBI agents to allow her to stay in the office while lawyers apply for bail before a night court. But the NBI insisted on bringing her to their headquarters in Manila, saying they were acting on orders of their director. Ressa complied as soon as her lawyers arrived.

Ressa's lawyers attempted to post bail, as is her right, but the judge of the Pasay night court refused to accept or process it. The warrant served by the NBI even did not contain the bail amount, which also posed another obstacle for any judge mandated to accept bail.

Ressa was arrested at the Rappler headquarters, and detained at the NBI for the night. Ressa posted bail worth P100,000 the next morning.

Q: Why did Keng file the case and is there basis?

Keng said the story was updated in 2014, by which time, the cybercrime law had taken effect.

The update to the story in February 2014 only covered a correction of a misspelled word, "evation," to "evasion," and changes in the universal resource locator of images. No substantial changes were made to the previously published story. Existing jurisprudence says that "republication," which can "create a new cause of action for defamation," happens only when a website is "substantially modified."

Q: Why should the law not apply to the story?

Republic Act (RA) No. 10175 or the Cybercrime Prevention Act of 2012 was passed in September 2012, or 4 months after the investigative report was published in May. No penal law is retroactive.

Keng’s lawyers have argued that "the article written was committed by means of publication in the online platform and website of Rappler, which is open and available for public consumption since the date it was posted, which was on May 29, 2012 and updated on February 19, 2014."

In the DOJ resolution indicting Ressa, the principle of "multiple publication rule" was cited. According to the DOJ, though written in 2012, it was revised in February 2014, thus bearing a timestamp after the enactment of RA 10175.

As indicated above, no substantial changes were made in the February 2014 update of the story. Thus there is no basis for a "new cause of action for defamation."

Q: Why was the article not taken down as demanded by the Keng camp?

Rappler vets and corroborates all information before any takedowns or apologies for errors are made. Otherwise anyone who has been the subject of a critical story can come forward and just present such demands. Authenticating any document or email is part of the vetting process.

Q: When was the demand made? And in what form?

There was no formal communication received by Rappler editors about a request or a demand for a takedown of the story. The initial informal communication was between Keng's former lawyer Leonard de Vera and editor-at-large Marites Vitug sometime in 2016 (4 years after the story was published) when he requested clarification about the story. 

He sent a letter dated August 15, 2016, from the Philippine Drug Enforcement Agency (PDEA). Randy Pedroso of PDEA's Intelligence and Investigation Service said that Keng "has no derogatory record on file at this agency for violation of RA 9165 or the Dangerous Drugs Act of 2002 as amended." The certification needed corroboration.

Q: What was Rappler's response?

A researcher-writer interviewed Atty De Vera and drafted a story in October 2016. Coming 4 years after the story was published and given the contents of the intelligence report, however, editors decided to hold publication pending corroboration and a more current news peg. At around this time, the drug war killings had become relentless and they took center stage. 

Q: Why is this a press freedom issue?

The question remains: what prompted Keng to very belatedly seek "clarification" about the story and file a case? Way past the one-year prescriptive period for libel, if there is doubt that cyber libel is a "similar offense" as ordinary libel, as provided in Revised Penal Code Article 90, "that doubt must be resolved in favor of the accused – [that] it is a similar offense that prescribes in a year," lawyer Marnie Tonson of the Philippine Internet Freedom Alliance has said.

In a statement sent to Rappler via email, Keng said, “If left unaccountable, Rappler, Ressa and Santos’ example of impunity will be emulated and replicated, and will destroy not just individual lives but our entire country.” 

But multiple groups, both local and foreign, have slammed Ressa’s arrest and called it an attack on press freedom. (READ: 'Persecution by a bully government': Journalists, advocates slam arrest of Maria Ressa)

Rappler maintains that the case sets a "dangerous precedent that puts anyone – not just the media – who publishes anything online perennially in danger of being charged with libel. It can be an effective tool of harassment and intimidation to silence critical reporting on the part of the media. No one is safe."

This cyber libel case is not the only case against Rappler. Starting January 2018, various government agencies have filed at least 8 cases against Rappler and Ressa, including alleged foreign ownership, violation of the anti-dummy law, and tax evasion. In less than 2 months, Ressa was forced to post bail 6 times, in what she claims are politically motivated charges. – Rappler.com

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