MANILA (UPDATE) -- On Saturday, two days before the expected release of the verdict in the cyberlibel case against her, acclaimed journalist Maria Ressa managed to crack a joke at the beginning of an interview on ANC.
"Essentially, if we do lose the case, it would be because someone in Rappler fixed a typo," she said in jest.
Ressa, CEO of news website Rappler, faces the possibility of jail time ranging from 6 months and 1 day to 7 years, as she awaits the decision of Manila Regional Trial Court Branch 46 Judge Rainelda Estacio-Montesa Monday in the cyberlibel case filed against her by property developer Wilfredo Keng.
Along with Ressa, Rappler and former writer-researcher Reynaldo Santos, Jr. stand accused of defaming the businessman over a May 2012 article which revealed that the then-Chief Justice Renato Corona, facing an impeachment trial, had a penchant of using luxurious vehicles of several personalities.
Among them was Wilfredo Keng who supposedly had a "shady past," linking him to human trafficking and drug smuggling based on an intelligence report.
Keng has denied the allegation and said Saturday he had sent Rappler evidence clearing his name.
May 29, 2012 – Rappler’s article on businessman Wilfredo Keng was published
September 12, 2012 – Republic Act No. 10175 or the Cybercrime Prevention Act was signed into law
February 19, 2014 – Rappler’s article was "republished" according to DOJ resolution
August 18, 2016 - Keng's lawyer Leonard de Vera reached out to Rappler's Marites Vitug asking to have the article corrected to clear Keng's name from involvement in illegal drugs, attaching a certification from PDEA
October 19-20, 2016 - De Vera followed up with the Rappler reporter assigned to the story, who said the article is already with the editors
February 18, 2017 - After another follow-up, the Rappler reporter said another writer has been assigned to the story. Keng's camp claimed from August 2016 to November 2017, more than 50 emails and text messages were sent between Rappler and Keng's lawyer.
October 2017 – Keng filed complaint with the NBI
February 22, 2018 - Rappler reported an NBI division has junked cyberlibel complaint but the then-NBI director would later say it was an unfinished evaluation
March 2, 2018 - NBI filed complaint for cyberlibel against Rappler, Ressa, Santos and others
January 10, 2019 - DOJ indicted Rappler, Ressa, Santos
February 13, 2019 - Ressa arrested
February 26, 2019 - Rappler, Ressa, Santos moved to quash cyberlibel case
April 12, 2019 - Manila court junked Rappler's Motion to Quash
May 14, 2019 - Ressa and Santos pleaded not guilty during arraignment
October 8, 2019 - Rappler, Ressa and Santos filed demurrer to evidence (motion to dismiss based on insufficiency of evidence)
November 15, 2019 - Manila court denied demurrer to evidence
June 15, 2020 - Promulgation of judgment
But it wasn't exactly the 2012 article that got Rappler, Ressa and Santos into trouble.
The Department of Justice (DOJ), in indicting them in February 2019, admitted the 2012 article is not covered by the Cybercrime Prevention Act of 2012, which punishes cyberlibel with a heavier penalty. The law was not enacted until September of that year, or 4 months after the publication of the story.
But the DOJ said the 2012 article was "republished" in February 2014, making it fall under the Cybercrime law. Citing a 1988 Supreme Court case, it said that under the "multiple publication rule," a single defamatory statement, if published several times, would lead to as many offenses as there are publications.
Rappler rejected this, arguing that the 1988 case and the multiple publication rule only apply to print media, not online.
If at all, there was no substantial change because what was corrected was only a typographical error: from "evaTion" to "evaSion."
The defense also said Ressa and Santos had no participation in the republication and Ressa, herself, had no hand in editing stories and in the day-to-day operations of Rappler.
The defense also raised the issue of prescription or the period when a case may be filed, noting that under the Revised Penal Code, a case for libel should be filed within 1 year from the date of publication. Keng filed his complaint only in 2017, more than 1 year since either 2012 or 2014.
But the DOJ said that since the penalty for cyberlibel has been increased up to 8 years, the prescriptive period has also increased to 12 years, following Republic Act 3326 which governs criminal laws other than the Revised Penal Code such as the Cybercrime law.
WHAT MANILA COURT PREVIOUSLY SAID
Rappler raised these issues before the Manila court twice -- first in a motion to quash the criminal complaint and second, through a demurrer to evidence, essentially a motion to dismiss due to insufficiency of evidence.
On the issue of republication, the Manila court in November last year sided with the DOJ and ruled that the "multiple republication" rule applies to both print and online media.
It rejected Ressa's and Santos' supposed lack of participation in the republication, saying Santos' name was indicated as the author of the 2014 article and Ressa is the CEO and executive editor of Rappler.
As to prescription, the Manila court in April last year agreed with the DOJ: the prescriptive period for cyberlibel is 12 years.
But Rappler's lawyer, former Supreme Court spokesperson Theodore Te, believes the court may still revisit these issues for Monday's ruling.
He pointed out that when the constitutionality of the Cybercrime law was affirmed, the Supreme Court ruled it is not a new crime. He thinks it should have same prescriptive period as ordinary libel of 1 year.
ISSUES FOR RESOLUTION
What then are the issues left for resolution by the court?
Based on the submissions of both sides, the following issues will have to be resolved by the court:
-Was there a substantial change between the May 2012 and February 2014 publications to be considered republication?
-Was there malice in the publication of the article?
-Was Mr. Keng defamed?
-What is the liability of Ressa, Santos and Rappler?
The Manila court had previously declined to rule on whether there was substantial change made for the 2014 article to be considered a republication, saying the defense will have to provide evidence during trial.
Citing American cases, the defense sought to show that "the addition of unrelated material does not constitute republication," invoking the test of substantial modification in the context of republication. The theory is that without substantial change, there can be no new case to go after the accused.
The defense said the burden is on the prosecution to prove the article was "republished."
PRESUMPTION OF MALICE VS PRIVILEGED COMMUNICATION
Malice is an essential element of libel.
The general rule under the Revised Penal Code is that "Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown."
But it provides for 2 exceptions: a private communication in the performance of a legal, moral or social duty; and a fair and true report, in good faith, without any comments or remarks.
The defense said the article was a "fair and true report without any additional personal defamatory statements" and that they merely quoted an intelligence report and a report from the Philippine Star.
But the prosecution said the intelligence report cited was "unconfirmed" and Mr. Keng was not asked about his supposed involvement in murder, human trafficking, sale of illegal drugs or illegal smuggling.
They also took issue with the statement: "The document also said Keng was involved in a murder case for which he was 'never jailed.' It could be referring to the death of Manila Councilor Chika Go in 2002 where Keng had been identified as a mastermind." The last sentence, they said, is a comment and not a fair and true report.
The prosecution also said Rappler did not take down the story and did not publish a new story based on Keng's evidence.
The defense said an article was drafted but due to an editorial decision, the subsequent article was not published. They also said Keng's side was published in the published article.
Another key element in libel is defamation or the "imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person."
According to Keng, the following statements in the Rappler report are clearly defamatory:
-alleged involvement in illegal activities, namely "human trafficking and drug smuggling," citing an intelligence report
-alleged involvement in a murder case for which he was supposedly "never jailed," based on same intelligence report
-allegedly accused of "smuggling fake cigarettes and granting special investors residence visas to Chinese nationals for a fee," citing a Philippine Star report
But the defense maintains the Rappler report was based on an intelligence report and an article previously published on the Philippine Star.
It also says prosecution failed to prove any injury to the reputation of Keng because the witness the prosecution presented was impartial and did not identify any damage.
The Manila court may either acquit or convict Ressa and/or Santos.
If acquitted, the prosecution can no longer appeal the ruling due to the constitutional guarantee against double jeopardy.
If convicted, they can either file a motion for reconsideration with the same court or file an appeal with a higher court within 15 days.
The judge may impose jail time ranging from 6 months and 1 day to 7 years or a fine.
Te cited previous instances when the court only imposed fines instead of imprisonment.
As for Rappler, the corporate entity may be subjected to a fine, if found liable.
Te said that in the event of conviction, they will ask that Ressa and/or Santos remain free on the same bail they posted.
All eyes will be on the release of the verdict on Monday, 8:30 am, which could be over in a few minutes, unless a party asks that the whole decision be read.
Various groups in the Philippines and abroad are keeping a close eye on the decision, touted as having significant implications on press freedom and online publications in the country.
International human rights lawyer Amal Clooney wrote in an op-ed for the Washington Post on Friday: "If Maria is convicted and locked up for doing her work, the message to other journalists and independent voices is clear: Keep quiet, or you'll be next."
And it all started with a typo.