NBI dismisses, then recommends cyber libel case vs Rappler

MANILA, Philippines – A little over a week after it dismissed a libel case against Rappler, the National Bureau of Investigation (NBI) on Friday, March 2, recommended to the Department of Justice (DOJ) that the social news network be prosecuted for cyber libel over the same story published 5 years ago. 

Justice Undersecretary Erickson Balmes confirmed on Friday, March 9, that the transmittal letter from the NBI was received by Prosecutor General Jorge Catalan.

NBI Cybercrime Division Chief Manuel Antonio Eduarte, who declared the case closed on February 22, refused to entertain questions from Rappler on Thursday, March 8, on why the complaint was revived. He said we should talk to the NBI director.

Director Dante Gierran has not responded to our requests for comment as of posting time.

Rappler, in a statement on Friday, questioned why the NBI would revive the complaint, which it earlier found to have "no basis."

"Why would the NBI risk its credibility and reputation, and reverse its earlier ruling? Are there instructions from higher-ups whom NBI officials could not say no to?" Rappler said. 

What the case is about: In May 2012, Rappler published a report that Chief Justice Renato Corona, who was undergoing impeachment trial, had used an SUV owned by businessman Wilfredo Keng.

More than 5 years after the publication of the report, in October 2017, Keng filed a libel complaint with the NBI Cybercrime Division. 

Rappler CEO Maria Ressa said in her counter-affidavit that the cybercrime law, which was enacted 4 months after the publication of the article, did not differentiate cyber libel from the ordinary crime of libel penalized under Article 355 of the Revised Penal Code (RPC). Article 90 of the RPC extinguishes criminal liability within one year, Ressa pointed out.

Why the investigation was revived: On February 22 this year, Eduarte announced the closing of the investigation since the NBI’s legal and evaluation service found no basis to proceed with the complaint. He said then that the prescriptive period of one year had lapsed.

"Even if itinaas ang penalty, ang prescriptive period hindi tataas, one year pa rin (though the penalty was raised [under the cybercrime law], the prescriptive period remains one year)," Eduarte told Rappler in a phone interview on February 22.

report by Inquirer.net on Thursday, March 8, said Keng filed a supplemental affidavit on February 28,  saying that “the prescriptive period for crimes falling under Section 4(c) (4) (of the Cybercrime Prevention Act of 2012) is 15 years.”

In just two days, on March 2, the NBI transmitted to the DOJ a recommendation to file a cyberlibel case against Rappler. 

While Eduarte earlier announced that the theory of continuing crime – because the news report can always be readily accessed on the internet – did not stand, the March 2 transmittal letter backtracks on that.

“Unlike published materials on print, defamatory statements online, such as those contained in the libelous article written and published by the subjects, is indubitably considered as a continuing crime until and unless the libelous article is removed or taken down,” according to the letter, as quoted by the Inquirer.

What the laws and lawyers say: The article that Keng is complaining about was published in May 2012, while the cybercrime law was enacted only in September 2012. All criminal laws are not retroactive.

Article 90 of the Revised Penal Code also clearly states that the “crime of libel or other similar offenses shall prescribe in one year.”

It also says: “Crimes punishable by other afflictive penalties shall prescribe in fifteen years.”

Lawyer Marnie Tonson of the Philippine Internet Freedom Alliance points out that the prescriptive period of one year that applies to "ordinary libel" also applies to cyber libel, citing Article 90.

Why? Because the definition of online libel under the Cybercrime Prevention Act is “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.”

“The one-year prescription that the Revised Penal Code put was not just for ‘ordinary’ libel but also for ‘other similar offenses,’” Tonson noted.

“Is cyber libel not a ‘similar offense’ considering that it essentially has the same elements as ordinary libel? In that case, cyber libel prescribes in one year just like ‘ordinary’ libel,” Tonson said.

Tonson added, “The general rule in the interpretation of any criminal law is that any doubt must be resolved in favor of the accused.”

“If there is doubt that cyber libel is a ‘similar offense’ to libel, as provided in RPC Article 90, then that doubt must be resolved in favor of the accused – which is, it is a similar offense that prescribes in a year,” Tonson said.

Sol Mawis, Dean of the Lyceum University of the Philippines Law School, rebuffs the theory of continuing crime in the case of the news report staying online. 

“It cannot be a continuing crime because there’s only one criminal intent. If you published today, your criminal intent today would be different from your criminal intent tomorrow,” she said.

Other cases against Rappler: The filing of the cyber libel complaint with the DOJ is part of the string of cases against Rappler.

On Thursday, March 9, the Bureau of Internal Revenue announced the filing of a tax evasion complaint against Rappler Holdings Corporation, accusing the media startup of non-payment of P133 million worth of taxes. Ressa called it "ludicrous" and urged the BIR to check its records, which shows Rappler among the top corporate taxpayers. 

The NBI is conducting a separate case buildup on other criminal liabilities of Rappler arising from the nullification of a Philippine Depositary Receipt (PDR) that the company sold to foreign investor Omidyar Network in 2015.

The Securities and Exchange Commission (SEC) has revoked Rappler’s license to operate, but Rappler is contesting with before the Court of Appeals. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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