MARIA RESSA’S CYBER LIBEL: EVIDENCE SUGGESTS CONVICTION IS HIGHLY LIKELY

I earlier wondered why Maria Ressa and her media allies never mentioned anything about the truthfulness of the report upon which Wilfredo Keng's libel suit was based.

I got the answer a day later, when I got hold of a letter [PDEA] dated 15 August 2016 from the Philippine Drug Enforcement Agency, addressed to what I presume to be Keng's lawyer. The letter stated that Keng, at least as of the letter's writing, had NO DEROGATORY RECORD in PDEA's database.

Rappler never took down the assailed news article, despite knowing full well that all it has is merely an intelligence report while Keng has an official document proving the contrary.

Rappler, in short, published a VERIFIABLE FALSEHOOD.

MAINSTREAM MEDIA DEFENDING FAKE NEWS

Infallibility in reporting is impossible, but when faced with more reliable controverting information post-publication, responsible journalists are supposed to issue errata. The insistence of a publisher on the initial claim, despite more convincing evidence to the contrary, is what can be considered to be FAKE NEWS.

In short, all media men defending Maria Ressa vis-a-vis this libel case are essentially defending not the Right to Free Speech, but the non-existent Right to Publish Verifiably False Information.

I find this utterly hypocritical, as these are the same media men who have been decrying the supposed proliferation of Fake News, as they defend Maria Ressa as she lies through her teeth.

If an article verifiably misinforms, what exactly is the point of defending it in the Court of Public Opinion? Have the members of mainstream media started to look up to Joseph Goebbels?

Philippine Star columnist Carmen Pedrosa hit the nail on the head when she said:

“Maria Ressa's story is not about about "Freedom of the Press" but her Freedom to Lie.”

And Ressa’s mainstream media sympathizers are part of that fight.

DEFENSE BASED ON TECHNICALITIES

Ressa, through various media outlets, raised three defenses:

FIRST, that the act was committed in early 2012, i.e. prior to the cyber libel law’s enactment in late 2012, thereby allowing Ressa to enjoy constitutional protection against ex post facto laws.

However, as the Justice Department correctly pointed out in its resolution on Keng v Ressa [DoJ], that the 2014 update of the Keng-Corona article makes the case fall under the “Multiple Publication” rule, where each and every publication of the same libel constitutes a distinct offense.

SECOND, that there was a Temporary Restraining Order on the Cyber Libel Law when the article was updated in 2014, so that the Cyber Libel Law cannot be invoked.

The Supreme Court indeed issued a TRO pending a decision on the constitutionality of several provisions, including Cyber Libel, of the Cybercrime Prevention Act of 2012 [GMANews].

Unfortunately for Ressa, The TRO was lifted on 11 February 2014 when the High Court ruled on Disini v Secretary of Justice [G.R. No. 203335], while the Rappler updated the Keng-Corona article 19 February 2014.

Rappler committed the act EIGHT DAYS after the Cyber Libel Law became fully active.

THIRD, that the prescriptive period for filing a case has lapsed. Ressa argues that Keng can’t sue her anymore because libel can be filed only up to a year after Keng found out about it.

Acts punishable under the Revised Penal Code, which includes libel, have a prescriptive period of one year as explained in People v Gines [G.R. No. 83463].

Some camps argue, however, that Cyber Libel is covered under a special law (Cybercrime Prevention Act of 2012), so that the prescriptive period, given that the it’s punishable by a minimum of 4 years imprisonment, should be eight years per CA 3326, which states [ChanRobles]:

“Violations penalized by special acts shall… prescribe… after eight years for those punished by imprisonment for two years or more...”

However, other camps argue that RA 4661 trumps CA 3326 as it states:

“"The crime of libel or other similar offenses shall prescribe in one year.”

The one-year prescription period theory is problematic.RA 4661 Sec. 1 clearly states that it amends only Article 90 of the Revised Penal Code.

RA 4661 says nothing about prescriptive period of criminal complaints arising from special laws, and the case filed against Ressa is based on the Cybercrime Prevention Act, a special law.

Moreover, Keng filed the complaint in 2012 or shortly after the initial publication of the Rappler article, or well within a year after the discovery of the libelous statement.

So no, a defense based on prescriptive period likely won’t hold water.

Moreover, state prosecutors can even explore the Search Engine Optimization angle.

Search Engine Optimization (SEO) is the process of maximizing the number of visitors to a particular website by ensuring that the site appears high on the list of results returned by a search engine like Google.

Whenever Rappler engages in SEO, it promotes ALL CONTENTS of the Rappler website, including the Keng-Corona article. That is, Ressa reiterates the defamatory statement everytime her company does SEO.

And how often does Rappler do SEO? ALL THE TIME.

Defenses relying on prescriptive periods and ex post facto laws should not hold by virtue of the multiple publication rule and Rappler’s continual SEO practices.

Now that we’ve gotten the technicalities out of the way, it’s time to discuss the merits of the case, i.e. whether all the elements constituting online libel are present in Keng’s complaint.

LIBEL CONVICTIONS AND MARIA’S LEGAL DEFENSE

TRUTH IS NOT A DEFENSE in libel cases with private complainants such as the one Keng filed against Ressa et Al. However, the point in my wonderment over Ressa’s reluctance to use truth as a defense is my curiosity as to what defenses Ressa’s legal team will employ.

But before I elaborate on that, let me first explain how a libel conviction can be had.

Like any other criminal case, the prosecution must convince the court of the presence of the elements of the crime of libel.

Here are the elements of libel [BatasNatin]:

[1] The defamatory imputation which, in this case, is tagging Keng as a drug smuggler and human trafficker, as it clearly lowers the respect in which Keng is regarded. 

[2] The publication of libelous matter which, in this case, is the 2014 update of the Keng-Corona article. Ressa argues that the article was published in 2012 before the Cyber Libel Law. The article's 2014 update, as the Justice Department correctly argues, was done AFTER the law's enactment.

[3] The complainant was identified and he sure was, as the article clearly stated the name “Wilfredo Keng”.

[4] There must be malice, as is the case. Citing Ateneo’s Dean Tony La Viña in his 2014 [Manila Standard] column, “Philippine libel law creates the presumption that malice is present in every defamatory imputation.”

Since Ressa’s is a cyber libel case, then a fifth element is required:

[5] Online publication, and this is pretty obvious, with Rappler being an online-only media organization.

The first three elements, along with the fifth, are hardly contestable, and any defense counsel worth his salt will focus his energies in debunking the supposed presence of the fourth element: malice.

More specifically, Ressa must show, for starters, that the Presumption of Malice does not hold in this case.

OVERCOMING THE PRESUMPTION OF MALICE

I am a long-time political blogger, a radio commentator, a newspaper columnist and a subject of a pending and relatively high-profile libel case filed by Antonio Trillanes, a sitting senator of the Philippines. I have carefully studied and took to heart libel laws not only because I find them interesting, but because I have to, for my own good.

After all, as the veteran journalist Ninez Cacho-Olivares in her 15 February 2019 [Daily Tribune] column aptly puts, journalists should know that libel “is part of the territory”.

By the way, Cacho-Olivares has successfully defended herself against at least two libel cases: one filed by former Ilocos Sur Governor Chavit Singson in 2001, and another by President Gloria Macapagal-Arroyo’s then personal lawyer Pancho Villaraza in 2002.

Going back to topic and after consulting several lawyer-friends, four out of the five elements of libel (imputation, publication, identification, and online nature) are hardly disputable, so that her legal team should focus on debunking the last one, which is Presumption of Malice, as described in Yuchengco v Manila Chronicle [G.R. No. 184315]:

“There is… a presumption of malice in the case of every defamatory imputation, where there is no showing of a good intention or justifiable motive for making such imputation.”

Most journalists debunk this presumption via the oft-used “Public Figure Doctrine”, part of which was expounded in the landmark Guingging v CA [G.R. No. 128959], which states:

“If the statements made against the public figure are essentially true, then no conviction for libel can be had.”

That is, Ressa must show that Keng:

[1] is a public figure, and  

[2] that the “drug trafficker” claim is essentially true.

“ESSENTIAL TRUTHFULNESS” OF INTELLIGENCE REPORTS

Unfortunately for Ressa and as shown in previous sections, Rappler’s demonstrably reckless disregard for the veracity of the Keng-Corona article prevents Ressa from taking refuge in this doctrine.

Keng is a private businessman so he may not be considered a public figure at first glance. However, with a few legal acrobatic maneuvers, Ressa’s legal team may argue that he is a limited-purpose public figure, in light of the Rappler Keng-Corona article’s claim that Keng granted then Chief Justice Corona favors.

Supposing that Keng is a public figure for the sake of argument, Ressa then needs to show that it’s essentially true that Keng is a drug trafficker.

Let’s go back to the basics by quoting Rappler’s Keng-Corona article:

“…we got hold of an intelligence report that detailed Keng's past. Prepared in 2002… The report stated that Keng had been under surveillance by the National Security Council for alleged involvement in… ‘human trafficking and drug smuggling.’”

In fairness to Ressa, the drug trafficker tag in Keng-Corona article in 2012 is essentially true as Rappler cited intelligence reports apparently sourced from the National Security Council. The problem, however, is that intelligence reports do not bear the same weight as official documents from law enforcement agencies.

Borrowing the Prussian war general and military theorist Carl von Clausewitz words:

“Many intelligence reports in war are contradictory; even more are false, and most are uncertain. In short, most intelligence is false.[George and Kline 2006]”

While intelligence reports are highly fallible, it can still be argued that, in the absence of weightier evidence to the contrary and considering that the Corona Impeachment Trial is a Public Interest issue, information cited from such documents are essentially true.

In short, if Keng sued Ressa for the 2012 article and that article alone, an acquittal is not unlikely.

But Ressa isn’t out of the woods just yet.

MARIA RESSA'S RECKLESS DISREGARD FOR TRUTH OR FALSITY

Aside from the Rappler’s source being an “intelligence report”, the claim becomes even more problematic as Rappler did not even cite who prepared it. While Rappler mentioned the National Security Council, it didn’t say it was from the same agency. After all, an intelligence report can be based upon another intelligence report.

Regardless, with the assumption that Keng is a public figure, Ressa can argue that the 2012 Rappler article forwarded an essentially truthful claim, so that no libel conviction can be had in as far as the 2012 article is concerned.

In libel cases involving public figures, the complainant has must prove that Actual Malice is present, as explained in Borjal v CA [G.R. No. 126466]:

“The guarantees of freedom of speech and press prohibit a… public figure from recovering damages… unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.”

That is, complainant Keng must prove that there was Actual Malice. That is, he must be able to convince the court that Ressa demonstrated a reckless disregard of whether the “drug trafficker” claim was false or not.

And here’s where it gets SUPER interesting.

PUBLIC FIGURES AND ACTUAL MALICE

The series of events that followed the article’s 2012 publication suggest that there indeed was Actual Malice on Ressa’s part.

In a 14 Feb 2019 official statement, Keng said [MindaNews]:

“I tried to… communicate with Rappler in order to have the said article taken down, clear my name and restore my reputation…”

Keng added:

“In turn, Rappler… repeatedly promised me that they will take down the subject article, but never did. The libelous attacks remain posted on their website until now.”

Assuming that Keng can provide evidence (emails, SMS messages or whatnot) that Rappler indeed promised to take down the article, then Rappler’s continual failure to take the article down (it’s still up as I write this piece) screams Actual Malice.

Moreover, the 2016 PDEA letter reinforces Keng’s case as it stated:

“Record check shows… Keng… has no derogatory record on file.”

It has been over two years since that letter’s writing, and it would safe to assume that Keng has notified Rappler about it.

The 2016 PDEA Letter 

Despite all of these, the Rappler's Keng-Corona article is still up.

This bears repeating:

Even with the assumption that Ressa published the 2012 article in good faith, subsequent events showed that Ressa insisted on keeping the article online and for everyone to see even after having been provided weightier controverting evidence, and even after her organization itself acknowledged the gross inaccuracy of the report when it promised Keng to take the article down.

Ressa showed reckless disregard of whether the “drug trafficker” claim was false or not.

Actual Malice is present.

Ressa even hurt her prospects for acquittal when she went on a global media blitz after DOJ served the arrest warrant, as her recent actions just point towards the fact that Ressa doesn't care if she's publishing what is VERIFIABLY FAKE NEWS.

Ressa’s insistence on publishing defamatory statements with reckless disregard for their truthfulness, making a conviction for Cyber Libel highly likely. Hence, it appears that Ressa may be the first person in Philippine History to be convicted for such an offense.

As far as I can see, Ressa will go to jail. [ThinkingPinoy]

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