Ressa, Santos seek reversal of cyber libel conviction, cite 13 errors

(UPDATED) – Rappler CEO Maria Ressa and former researcher-writer Reynaldo Santos Jr filed on Monday, June 29, a motion for partial reconsideration, appealing to Manila Judge Rainelda Estacio-Montesa to reconsider her decision that convicted the journalists of cyber libel. 

Ressa and Santos' lawyers from the Free Legal Assistance Group (FLAG) submitted their 132-page motion to the Manila Regional Trial Court (RTC) Branch 46 via email Monday afternoon. Copies were also mailed to the court and the prosecutors. The Manila RTC is still on lockdown due to possible exposure to personnel who were in contact with coronavirus-positive relatives.

The motion cited at least 13 errors committed by Judge Montesa in her June 15 verdict and accused her of malice.

In the motion, FLAG argued several key points and raised issues still largely unexplored with the very young, and still very contested, Philippine Cybercrime Law. Among these are the following:

  • Complainant Wilfredo Keng as public figure
  • Malice
  • Republication
  • Prescription period of libel
  • Intervention of the UN Special Rapporteur for Freedom of Expression, Professor David Kaye
  • Imposition of fines instead of imprisonment for libel

The motion for reconsideration (MR) did not mince words in criticizing Judge Montesa's decision, saying "the court has resorted to language that borders on the sarcastic and, at times, crosses over to the partial."

FLAG asked the court to consider Philippine jurisprudence that fiercely protects free speech and apply them to the cybercrime law. (PODCAST: Law of Duterte Land: The problems with the Cybercrime Law)

"The self-distancing by the court of this case from the issue of press freedom is so pronounced as to be unmistakable. In the process of that self-distancing, however, the fundamental principles of constitutional law on 'content-based restrictions' that have become hornbook law have been ignored," said the MR.

Is Keng a private person or a public figure?

Libel in the Revised Penal Code presumes malice in defamatory imputations even if they are true. Over the years, Philippine jurisprudence has made a distinction between a public figure and a private person, applying an actual malice rule for public figures.

It means that for a public official, malice on the part of the accused must be proven and not presumed. Because the bar for determining malice is so high, even erroneous statements are not considered malicious – as long as there is failure to prove a "high degree of awareness of probable falsity."

Judge Montesa ruled that because Keng was a private person, then malice was presumed.

FLAG said Keng is considered a public figure, citing the case Ayer vs Capulong which said a public figure is "anyone who has arrived at a position where public attention is focused upon him as a person."

"Its definition of a public figure is important to this case, as it clearly establishes that even non-governmental officials are considered public figures," said FLAG, arguing that the rule on actual malice must be applied in the case.

Keng's complaint was based on a 2012 story linking him to the late chief justice Renato Corona, who faced an impeachment trial.

Judge Montesa lectured the journalists on the supposed failure to verify information in an intelligence document that linked Keng to illicit activities in that story, saying that they were being reckless.

FLAG reiterated that reporting on the document falls under Article 354 (2) of the Revised Penal Code, which says malice is not presumed if it is a "fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature ... or of any other act performed by public officers in the exercise of their functions.” 

"Santos with his collaborator, the late Aries Rufo, relied on and referenced two documents – the first an intelligence report and the second a news item published in a newspaper; neither added color or commentary but simply referenced the two documents, which were both hyperlinked to the basis for the report," said the motion.

Republication and why Santos and Ressa were not put on the stand

In her decision, Judge Montesa faulted the Rappler camp for not putting either Santos and Ressa on the witness stand. Because of this, the judge said that the testimony of Rappler's investigative desk head Chay Hofileña was hearsay.

In the MR, FLAG stressed that the charge sheet accuses Ressa and Santos of cyber libel – not for writing or publishing the article in 2012, but for "willfully, unlawfully and knowingly republishing" it in 2014. (READ: 'I'm scared to go to jail, I'm not as fearless as Maria')

This is important because the Cybercrime Law was enacted only in September 2012, and could not have applied to Santos' May 2012 article had it not been updated to correct a typo in February 2014.

Judge Montesa ruled that the update constituted republication and a separate offense for libel.

FLAG said neither Santos nor Ressa had any personal knowledge of the alleged "republication." Santos did not know because he didn't spot the typo, nor correct it; and Ressa did not know because she is not involved in Rappler's daily editorial activities.

On the other hand, Hofileña as the investigative desk head, had personal knowledge of the incident in 2014 when another Rappler reporter spotted the typo and asked to correct it. (The article misspelled the word "evasion" as "evation.")

"Clearly, the testimony of Ms. Hofileña on the process, protocols, and the procedures followed in relation to the update were based on her personal knowledge as Senior Editor of Rappler, for the in-depth and investigative section or Newsbreak, which she heads. By every definition of personal knowledge, Ms. Hofileña’s testimony qualifies," said the motion.

Judge Montesa said that calling Ressa an executive editor and not editor-in-chief was a "clever ruse" to evade accountability.

FLAG said even The New York TimesThe Washington Post, the Huffington Post, and the Philippine Daily Inquirer use the same title for their executives.

FLAG said Judge Montesa's characterization of Ressa and her being an executive editor showed "hostility and animosity."

"The court’s role in the trial is to determine malice, not make malicious statements. Ascribing an underhanded and even unlawful motive – without assertion or proof – is malicious. It is utterly contemptuous and unbecoming of a judge," said FLAG.

What is republication?

FLAG said that when Judge Montesa ruled that the update constituted a republication, she "did not even bother to cite any shred of support for its unilateral statement."

"Of the 170 footnotes in the 36-page Decision, not a single reference is made to support this assertion...The absence of any such reference cannot be trivialized or shrugged off because of the constitutional command that '(n)o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based,'" said the motion.

"The pronouncement amounts to a 'judicial ambush' that so offends every notion of judicial propriety and basic fairness as to lend itself to nullity," said FLAG.

The prosecution, as upheld by Judge Montesa, relied on the 1988 Supreme Court case Soriano vs Intermediate Appellate Court where the Court said, "We follow the multiple publication rule."

FLAG pointed out that the 1988 case's main concern is jurisdiction, and that the Philippine Supreme Court has not authoritatively made a ruling on republication as applied to online media.

Critics of the cybercrime law have been saying for years that the fluid nature of the internet makes the cybercrime law "draconian."

The MR said that in a United States case, content is only considered republished if there was substantial modification.

"In the absence of controlling Philippine jurisprudence on 'multiple republication to online media,' American case law is persuasive and provides guidance for this court in addressing this specific issue of first impression," said FLAG.

FLAG also said that because the charge sheet accuses Ressa and Santos of "willfully, unlawfully and knowingly" republishing the allegedly libelous content, the prosecution must have proven beyond reasonable doubt that the journalists in fact committed those specific crimes.

"Notably, this is what the prosecution attempted to do, belatedly, in its Motion to present rebuttal evidence which the court correctly denied," said the MR.

"The belated filing of that Motion, after the defense had rested, is an admission by the prosecution that its evidence was clearly insufficient to prove: a) republication, as an element of Cyberlibel, and b) republication, as an act 'knowingly, unlawfully, and willfully' done by the two accused," FLAG added.

When does cyber libel prescribe?

Judge Montesa upheld the Department of Justice (DOJ) theory that cyber libel prescribes in 12 years, as opposed to the one-year prescription period in the Revised Penal Code.

The DOJ based its interpretation on the pre-war Act 3326*, which lays down prescription periods for special laws. (An earlier version of this story said it was Act 4661; this has been corrected.)

This is the "overriding issue" in the case, said retired supreme court senior associate justice Antonio Carpio, who wrote in his column in the Inquirer that cyber libel must prescribe in the same period as ordinary libel, which is one year.

Keng filed his complaint only in October 2017, 5 years after the publication in 2012, or 3 years after the alleged "republication" in 2014.

FLAG said that during oral arguments in the Supreme Court in 2013, then solicitor general Francis Jardeleza, in defending RA 10175 or the cybercrime law, categorically stated that "the prescriptive period for the crime of libel remains to be 1 year under Republic Act 4661 despite 10175."

The National Bureau of Investigation (NBI) legal division also believed that the prescription period is one year, which is why it dismissed the case against Ressa and Santos, only to be overturned by the bureau's leaders and indicted later by the DOJ.

"It cannot be clearer than that. Assuming without conceding that the court’s dismissive stance towards the Chief of the NBI Legal Division is warranted and corrected, the same certainly cannot be said of the-then Solicitor General Francis H. Jardeleza, who would later become Associate Justice of the Supreme Court," said FLAG.

The motion also pointed out that due to the many petitions against it, the Supreme Court issued a temporary restraining order (TRO) against the cybercrime law on October 9, 2012.

FLAG said the Supreme Court lifted the TRO only on April 22, 2014, when it had resolved all petitions and appeals.

"During the duration of the TRO, RA 10175 [was] inoperative. That was the legal, practical, and actual effect of the Supreme Court’s TRO. The update, which the court now characterizes as a republication was done on February 19, 2014, when the TRO was still in effect," said the motion.

"With due respect, the court’s Decision is not only wrong, it is also void; unless reconsidered, it will continue to stain the accused’s reputations and result in greater injustice to accused as well as expose this court to the necessary consequences of its error," said the motion.

UN Special Rapporteur

Before the verdict, United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression David Kaye submitted an unsolicited expert's brief, making a case for how libel should be decriminalized, and how the court must prudently apply the cybercrime law while libel remains a criminal offense. 

Judge Montesa merely "noted" Kaye's brief, which, in the judiciary, means it was just acknowledged for the record.

"With due respect, considering the opinion of Professor Kaye in his Brief would allow the court to arrive at a judgment that is more in accord not only with the facts and evidence presented during the trial but also with international law principles that govern the country’s commitments under the International Covenant on Civil and Political Rights (ICCPR)," said the motion.

As a final argument, FLAG said Judge Montesa should have been guided by jurisprudence, and by the Supreme Court's own circular, that if it can, courts must impose only fines rather than imprisonment on libel cases.

Ressa and Santos were sentenced to a maximum of 6 years in jail.

"The court has chosen to disregard SC Administrative Circular No. 08-08. With due respect, the penalty of imprisonment must be set aside and reconsidered," said FLAG.

If Judge Montesa denies the motion, Ressa and Santos could elevate it to the Court of Appeals, and if need be, go all the way to the Supreme Court. 

In the Supreme Court, it will open up the opportunity to revisit constitutional issues of the cybercrime law. – 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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