Don’t @ Me, @ My Lawyer: The Rappler Case

Don’t @ Me, @ My Lawyer is where we dive into the legal nuances of the latest digital rights stories.

Press freedom in the Philippines was put on trial in the case of Maria Ressa, executive editor and CEO of investigative news website, Rappler. Ressa and former Rappler writer, Reynaldo Santos Jr., were convicted of cyberlibel by the Manila Regional Trial Court on June 15, but the proceedings have been flawed from the outset for years.

The case concerns an article published on Rappler in May 2012 — the article reported that the former Chief Justice used a car registered to businessman Wilfredo Keng. Citing an intelligence report, the article detailed Keng’s questionable behaviour and activities, including that Keng was under surveillance by the National Security Council for his alleged involvement in “human trafficking and drug smuggling.” More than five years later, in October 2017, Keng filed a cyberlibel complaint about the article with the Cybercrime division of the National Bureau of Investigation (NBI).

Two major procedural objections were raised by Ressa after the complaint was filed. Firstly, the Cybercrime Prevention Act of 2012, under which the complaint of cyberlibel was filed, was signed into law in September 2012 — four months after publication of the article. The principle that criminal laws are not retroactive is an essential component of any legal system which claims to uphold the rule of law. Accordingly, Ressa and Santos could not be criminally liable for conduct that was not, in fact, a crime when it occurred. However, the head of the NBI Cybercrime Division dismissed this; asserting that the “continuous publication” rule applied, and because the article remained published and accessible even after the statute was enacted, this was not the retroactive enforcement of a law. Many jurisdictions across the globe do not apply the continuous publication rule in defamation or libel cases because it unjustifiably restricts freedom of expression.

The NBI eventually referred the complaint to the Department of Justice for prosecution, and in early 2019, the DOJ indicted Ressa and Santos. In responding to their counter-arguments, the DOJ cited the “multiple publication rule”, according to which, Rappler’s correction of a typographical error in the article in 2014, was considered a “republication.” Therefore, this constituted a “distinct offense” that Ressa and Santos could be held liable for, since the republication occurred after the enactment of the Cybercrime Prevention Act of 2012.

After raising the issue during the investigation stage, Ressa eventually filed an appeal to dismiss the cyberlibel charges on prescriptive grounds. Citing a Supreme Court ruling which held that cyberlibel is “not a new crime but is one already punished” under the Revised Penal Code, it was argued that cyberlibel, like ordinary libel, has a prescription period of one year. Therefore, even if the 2014 edits were accepted as a “republication” Keng only filed his complaint in 2017 — two years after the matter had already prescribed. The Manila Regional Trial Court, however, denied the appeal, and upheld the DOJ’s contention that the Cybercrime Prevention Act is a “special act” and therefore attracts a prescription period of 12 years in accordance with Act No. 3326, concerning violations penalized by special acts.

Despite these glaring legal irregularities, the trial proceeded through to judgement, in which Ressa and Santos were convicted and sentenced to between a minimum of 6 months and 1 day and a maximum of 6 years imprisonment. The decision drew criticism from powerful foreign government agencies, social media companies, leading newspapers and journalists around the world, and has led to local officials taking action to amend the prescription period for cyberlibel.

The cyberlibel charges weren’t the only legal hurdle thrown at Rappler in the last few years. In 2017, the Securities and Exchange Commission (SEC) opened an investigation into the foreign investment and ownership of Rappler for “possible violations of nationality restrictions on ownership and control of mass media entities.” In his 2017 State of the Nation Address, President Duterte, the subject of a number of Rappler investigations, claimed the company was “fully owned” by Americans. The Philippine Constitution of 1987 limits the ownership and management of mass media in the country to its citizens. Rappler has debunked these claims, but the SEC nevertheless revoked Rappler’s license to operate in 2018 for violating the Constitution and related Anti-Dummy law by issuing financial instruments (Philippine Depository Receipts or PDRs) that allow for foreign investment. Rappler is legally permitted to issue PDRs as they do not amount to rights of ownership or control over the company. Rappler then appealed the decision, which was upheld, but the Court of Appeals directed the SEC to review their decision in light of Rappler’s foreign investors “donating” their PDRs to Rappler’s local managers.

Flowing from this, the Justice Secretary ordered the NBI to investigate Rappler’s criminal liability for constitutional and legislative violations. Additionally, in 2018, the Bureau of Internal Revenue filed a case of tax evasion against Rappler and Ressa for not supplying “correct and accurate information in its 2015 income tax return.” The Bureau argued that because Rappler issued PDRs, it was a “dealer in securities” and therefore subject to further obligations under the tax code. However, Rappler’s lawyers disputed this — Rappler was the issuer, and not the “dealer” of the PDRs, and PDRs are not equivalent to shares. The matter is still proceeding to trial despite Rappler filing appeals and motions to quash.

The legal gymnastics performed by authorities in the Rappler case clearly point to a targeted crackdown against independent reporting in the Philippines. Currently, journalists can be held liable for their online reporting for over a decade after its publication, and aren’t even guaranteed protection if they adhere to professional and ethical standards, since the legislature may retroactively amend those standards anyway. Additionally, publications may be shut down based on controversial, subjective, and sometimes wholly incorrect, interpretations of the law by officials, as an assortment of the country’s government agencies try their hand at undermining press freedom. The resulting violation of the core tenets of the rule of law in the Philippines has grave consequences for its democracy.

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