RAPPLER’S RIPPLE EFFECT IN THE LEGAL FRONT
The case of
Rappler’s Maria Ressa could be the first test case and one of first
impression in the legal interpretation of the offense of Libel now
made punishable under the Cyber Crime Law, RA 10175.
Since what I know
of the case are only drawn from news reports and commentaries, I would
limit my analysis, on the facts drawn out from these reports.
The
case seemed to have arose from a complaint brought against Rappler and
Company, by a businessman and a private citizen, who claimed that
Rappler published a report in their online media, containing defamatory
statements which maligned his reputation, imputing to him a wrongful act
or committing a crime.
The businessman described this report
as reckless, and inaccurate and was carried by other news outfits. This
article or report in question was published in May 2012.
As of
May 2012, there was no such thing as Cyber Crime Law, or more
particularly Cyber Libel. But then came the passage of RA 10175 the
Cyber Crime Law which took effect September 2012 or barely four months
after the questioned publication by Rappler.
From the side of
Rappler, Maria Ressa claimed that the Libel complaint of the Businessman
was “dismissed” by the NBI which was the investigating agency, since
the Cybercrime Law only took effect in September 2012 and at the time of
the online publication of the report in May 2012, there was no law yet
penalizing Libel as a Cyber crime.
The claim of Rappler that
the libel case was dropped by the NBI, is disputed by the aggrieved
Businessman who countered that it is another inaccurate and fake
reporting by the online news outfit. He pointed out that it was in fact
the NBI which filed the Cyber libel case against Rappler and company,
with the DOJ, which found probable cause to indict the respondents.
Lately a warrant for arrest was issued against Maria Ressa and so the
media had a field day trying to interview one of their own in this very
controversial case.
To get a clear picture of what is going on
here from the legal standpoint we have to look what Cyber
Libel is, as
prescribed in the law. Our law on libel is found in the Revised Penal
Code which dates back from the Spanish Era. So Libel as a Cyber Crime is
an entirely new creation. Or is it?
Now for us of the
Baby-boomer generation, the term Cyber is strange. Cyber is the planet
of the computer age. Cyber refers to a computer or a computer network,
the electronic medium in which online communication takes place. So all
computer data exist in the Cyber planet and this includes electronic
documents, electronic messages, like the questioned online report
published by Rappler which is the subject of the case.
Rappler’s
online social news media is different from the traditional media in the
sense that its news, reports, commentaries and reading contents float
and circulate in cyber space, and are published electronically.
So let’s take a look at the Cyber Crime Law of 2012, and pay attention to Offense of Libel as prescribed in this law.
Cyber Libel falls under the category of Content-related Offenses.
What does the Law say?
Only this: “Libel-The unlawful or prohibited acts of libel 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.”
It is clear now that the ancient yet workable provision
of the Revised Penal Code on Libel is still the same offense punishable
under the Cyber Crime law. The Cyber Crime Law does not define the
elements of the crime of libel but leaves it to be defined by the
Revised Penal Code. The only change is in the matter of publication
which should be through a “computer system.”
The law defines
Computer system as referring “to any device or group of interconnected
or related devices, one or more of which, pursuant to a program,
performs automated processing of data. It covers any type of device with
data processing capabilities including, but not limited to, computers
and mobile phones. The device consisting of hardware and software may
include input, output and storage components which may stand alone or be
connected in a network or other similar devices. It also includes
computer data storage devices or media.”
Another difference is in the penalty, since Cyber Libel carries a higher penalty.
Under Article 353 of the Philippines Revised Penal Code, libel is
defined as “a public and malicious imputation of a crime, or of a vice
or defect, real or imaginary, or any act, omission, condition, status or
circumstance tending to cause dishonor, discredit or contempt of a
natural or juridical person, xxxxx ...”
An essential element of
the offense of Libel is of course publication of Libelous material. So
there is no libel if the material is not published or communicated to a
second person. So in libel it is the communication of a libelous
material to a second or third person or a greater number of persons
which makes it an offense.
The element of publication is one of
the issues raised in the Rappler case. Rappler claims that when the
alleged defamatory material was published online in May 2012, there was
no law yet defining libel as a cyber crime, since the law took effect
only in September 2012. There is such a thing as a Constitutional
safeguard against ex-post facto law. Meaning the State cannot pass a
penal law to apply retroactively. Putting it more simply, the law cannot
punish us for an act which was not yet punishable before the passage
of such law.
In this regard Rappler has a point.
Rappler
also points out that under the Revised Penal Code, defining Libel, upon
which the Cybercrime Law of Libel is based, the prescriptive period is
one year. The case according to Rappler could no longer be filed on
account of prescription.
The DOJ’s interpretation, however, is different.
DOJ maintains that while it is true that the Cyber Crime Law took
effect in September 2012, and the questioned material was published in
May 2012, there was a republication of the article when Rappler edited
the same material in February 2014. This according to the DOJ amounted
to republication, thus, the Cyber Crime Law now applies.
Furthermore according to the DOJ, the prescriptive period in the case of
Cyber Libel, is not one year as provided in the Revised Penal Code but
twelve years as provided in RA 3326, since the Cyber Crime Law is a
Special Law. The DOJ points out that the prescriptive period of one year
applies to libel not cyber libel.
Now this may sound to be a
good argument, but the problem is, the Cyber law by express provision
defines cyber libel in the same way as Libel as provided in the Revised
Penal Code. It is not therefore a new crime, except that the manner of
publication is done electronically and the penalty is higher. Shouldn’t
we then apply the other pertinent and related provisions of the Revised
Penal Code like the one year period of prescription of the offense.
After all this provision has suppletory application, in the absence of
any specific provision in the Cyber law. Furthermore, shouldn’t doubts
be resolved in favor of the accused?
Another issue. Would the
editing of the electronic document, which had already been published
online, amount to republication?
In any case DOJ also seems to have made a point.
These are legal questions which have far reaching implications.
Rappler’s counsel JJ Disini expressed the view that the “DOJ’s
interpretation of the Cybercrime Act has lasting impacts on
‘constitutionally-guaranteed rights,’ and which may lead petitioners to
go back to the Supreme Court to clarify the provisions of the law once
more.
“There would be grounds to raise issues before the Supreme
Court on particularly how the cybercrime prevention act is interpreted
and how that interpretation can impact on constitutionally-protected
rights,” he said
