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Lawyers question republication, prescription aspects of cyber libel

This June 15, 2020 photo shows the outside of Manila Regional Trial Court Branch 46.

MANILA, Philippines — The government’s cyber libel case against Rappler CEO Maria Ressa was largely perceived in the legal community as a test case on the libel provision in Republic Act 10175, or the Cybercrime Prevention Act of 2012, that had been upheld as constitutional in 2014.

Manila Regional Trial Court Branch 46 on Monday said it found Ressa and the company’s former researcher Reynaldo Santos Jr. guilty of cyber libel.

Ressa’s conviction was not the first on a cyber libel charge nor was it the first against a journalist.

Data from the Department of Justice Office of the Cybercrime showed that Ressa’s was not the first cyber libel conviction either. "There are 13 cyber libel convictions, three of which involve journalists," DOJ Undersecretary Markk Perete said.

When Presiding Judge Rainelda Estacio-Montesa convicted them of violation Section 4(c)(4), she adopted two legal theories from state prosecutors: That even though the original article was published before the RA 10175 was enacted, an update of it would put it under the scope of the law; and that the prescription of cyber libel is up to 12 years, as opposed to one year for regular libel.

READ: DOCUMENT: Decision on cyber libel case vs Rappler CEO Ressa, former researcher Santos

On republication

The article central to the case is a May 2012 story and was updated on February 2014. DOJ prosecutors said this counted as multiple publication, and the court held that this update—Rappler said it was just to correct the “evation” to “evasion”—a “republication.”

With an updated story published on the site, the May 2012 article “can no longer be found” and “only the 19 February 2014 version presently exists,” the court said.

The National Union of Peoples’ Lawyers said Montesa’s reliance on Brillante vs CA and Soriano vs IAC on the multiple publication rule is a misapplication due to the doctrine of stare decisis or the principle in determining litigation according to precedent.

"The cited cases are not applicable because the subject article in Rappler was not reissued or edited in a new form. So if same form of article, there is only one aggregate publication and that is the original one, even if ‘updated,’" NUPL president Edre Olalia explained.

He pointed out that courts outside the Philippines the "‘single publication rule’ in response to the challenge that widespread distribution of written material has proliferated especially with the recent technological advances," meaning an updated version of an article is considered the same article and not one that was published again.

The Supreme Court, in Disini et al vs Secretary of Justice, held that "unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression."

On prescription

After holding that “republication is present in the case,” the court went on to determine whether the offense was already prescribed.

A prescriptive period is the maximum period set by law that legal action, like filing a complaint, can be brought forward.

The court said a review of the Cybercrime Prevention Act showed “it does not provide its own prescriptive period,” thus the law on provision of the law on prescriptions for violations penalized by special acts or Act No. 3326, or the act that sets "periods of prescription for violations by special acts and municipal ordinances…and provide when prescription shall begin to run", would apply.

FEU Law Dean Mel Sta Maria disagreed with Montesa.

In a Facebook post, Sta Maria pointed out that when the SC reviewed the constitutionality of the cybercrime law, it held that cyber libel “is not a new crime but merely provides a manner of committing an already existing offense.”

This is libel, under Article 355 in relation to Article 355 Revised Penal Code, committed online. Quoting the landmark Disini et al vs Secretary of Justice, he stressed: “In effect, Section 4(c)(4)… merely affirms that online defamation constitutes ‘similar means’ for committing libel.”

Since this is not a new crime, the one year prescriptive period of the RPC applies, Sta. Maria said.“The RPC specifically provides that libel should be filed within one year from its commission,” he added.

Imprisonment as punishment

Integrated Bar of the Philippines president Domingo Egon Cayosa meanwhile raised the imposition of jail time on Ressa and Santos.

The judge sentenced them to suffer the indeterminate penalty of imprisonment ranging from six months and one day of prision correctional as minimum to six years of prision correccional as maximum. The court however allowed them post-conviction bail pending appeal.

In a statement Tuesday, Cayosa raised a question on the application of Supreme Court Circular 08-2008 with respect to the penalties imposed.

The IBP president pertains to the guidelines of a rule of preference in the imposition of penalties in libel cases.

In the circular, then-Chief Justice Reynato Puno said judges may, “in exercise of sound discretion,” determine whether an imposition of fine “would serve the interest of justice or whether forbearing to impose imprisonment.”

As Puno put it, the circular only asked judges to “take note” of the preference on imposition of imprisonment.

In September 2008, the SC Second Division ruled on a libel case against Erwin Tulfo and other media personnel of Manila-based daily Remate. In a separate Facebook post, Sta. Maria cited this ruling penned by then-Associate Justice Presbitero Velasco Jr:

Freedom of expression as well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of a free press balanced with the necessity of a responsible press, the penalty of a fine… with subsidiary imprisonment in case of insolvency, should suffice.Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter in their line of work must also be taken into consideration.

Credit belongs to : www.philstar.ca

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