MANILA — Barely 5 months after her conviction for cyberlibel, news website Rappler's CEO Maria Ressa is facing her second online libel case filed by the same businessman who impleaded her in the first charge.

Makati City prosecutors on Nov. 23 charged Ressa with violating Section 4 (c) 4 of Republic Act 10175 or the Cybercrime Prevention Act of 2012 in relation to Art. 353 of the Revised Penal Code on libel over a tweet she posted on February 16, 2019.

In the tweet, Ressa shared screenshots of a 2002 Philippine Star article which tagged trader Wilfredo Keng in the killing of a former Manila councilor and in various alleged illegal activities.

“Here’s the 2002 article on the ‘private businessman’ who filed the cyber libel case, which was thrown out by the NBI then revived by the DOJ. #HoldTheLine,” she said in her tweet, 3 days after her arrest for the first cyber libel complaint filed by Keng.

Ressa said she was responding to queries as to why she was arrested by agents of the National Bureau of Investigation (NBI) over a 2012 article Rappler published about the businessman.

The Rappler article quoted portions of the 2002 Philippine Star report, which had been subsequently taken down at Keng’s demand.

For that article, Ressa and former Rappler writer-researcher Reynaldo Santos, Jr. were found guilty of cyber libel by a Manila court in June and were sentenced to up to 6 years in prison.

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MALICE?

In finding probable cause to charge Ressa for the second cyber libel case, Senior Assistant City Prosecutor Mark Anthony Nuguit said Ressa acted with malice when she posted the tweet.

“[O]f all the things she could say — she deliberately chose a 17-year-old article, which was already taken down by the Philippine Star from its website, that tends to cause dishonor, discredit and contempt to [the] complainant,” the resolution read.

“At the time the Twitter post was published by respondent, she has just been arrested and jailed in connection with another case filed by complainant. Hence, [respondent] had the motive to speak ill against the complaint,” the resolution added, citing a 2008 case where the Supreme Court rejected the appeal of entertainment journalist and columnist Cristy Fermin over her libel conviction.

Fermin’s conviction involved an article published in a tabloid in 1995, not a tweet, and it took place seven years before the Cybercrime Prevention Act was enacted in 2012.

In 2014, the Supreme Court ruled in the case of Disini v. Secretary of Justice which stated that merely pressing like, commenting and sharing on social media cannot constitute cyber libel.

“Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting,” the High Court said.

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“Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding ‘Friends’ or ‘Followers’ in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?” it explained.

“The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. 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,” it added.

But the Makati City prosecutors’ resolution said Ressa “did not merely press the Share button,” saying she had to search for the Philippine Star article, make a screenshot and upload the screenshots before clicking the tweet button.

“[T]he foregoing cannot be considered a knee-jerk reaction on the part of respondent, hence, she should be liable for the consequences of her Twitter post,” the resolution pointed out.

In her motion to quash the criminal charge filed against her on Thursday, Ressa, through her lawyer Theodore Te, invoked the Disini ruling.

“[I]f the ‘Comment’ does not merely react to the original posting but creates an altogether new defamatory story…then that should be considered an original posting published on the internet,” she said, quoting the ruling and summarizing the ruling into:

• only the author of a defamatory statement is liable for cyberlibel
• sharing or retweeting over social media defamatory content written by another cannot be punished as cyberlibel nor can it be punished as aiding or abetting in cybercrime
• sharing or retweeting defamatory content only becomes actionable if independent statements are made in the shared or RT’d statement that are in themselves defamatory

She pointed out that the criminal charge accused is based on a tweet that is not defamatory. If at all, she said, the allegedly defamatory statement was authored by PhilStar.com, over which Keng supposedly did not take action.

“On the basis of the accused’s single statement, there is no basis to consider the same defamatory under Article 353 in relation to Article 354 of the Revised Penal Code, taken in connection with Section 4(c)(4) of RA 10175, as interpreted by the Supreme Court in Disini,” she said.

She also invoked freedom of expression under the Constitution, as a journalist.

“Keeping people informed, using any platform at her disposal (in this case, Twitter), is part of her duty as a journalist; certainly, the non-defamatory statement she wrote to inform people following her on Twitter fails under the exercise of her right under Article III, section 4 of the 1987 Constitution and cannot form the basis for this charge,” she said.

Makati prosecutor Nuguit had rejected this argument, saying Ressa supposedly failed to show she asked for Keng’s side before publishing her tweet.

Ressa had moved to junk the new cyber libel complaint while it was pending before the Makati City Prosecutor’s office. It was filed in February.

READ MORE:

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According to Rappler, Makati Regional Trial Court Branch 147 Judge Maria Amifaith Fider-Reyes issued an arrest warrant for the 2nd cyber libel charge on Friday and Ressa posted P24,000 bail on the same day.

This is the 9th arrest warrant against Ressa, who is also facing tax evasion charges over Rappler Holdings’ sale of Philippine depositary receipts.

Ressa has continuously objected to the cases against her, calling them “politically-motivated” following Rappler’s critical coverage of President Rodrigo Duterte.

Keng’s camp had said he is a private businessman and the President has nothing to do with his case.