RAPPLER'S RIPPLE EFFECT IN THE LEGAL FRONT

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