PERRYSCOPE: It’s time to decriminalize libel

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By Perry Diaz

Last June 15, in the latest blow to press freedom, Maria Ressa, the founder of an award-winning Philippines-based news site was convicted of cyber libel in a Manila court. The court found Ressa, editor and chief executive of online news site Rappler, and former researcher-writer Rey Santos Jr. guilty of libeling a businessman.

The case is about a May 2012 article investigating a former chief justice’s links to several businessmen, including Wilfredo Keng. The news article cited an intelligence report from an unspecified agency, which alleged Keng was tied to illegal activity. Keng denied the allegation.

But the law Ressa and Santos were charged under, the Cybercrime Prevention Act, did not exist at the time the story was published. However, the courts accepted the lawsuit because the story was considered to have been “republished” in February 2014 after it was updated to correct a “typo.”

Ressa and Santos were sentenced to between six months and six years in prison. It was immediately appealed at higher courts all the way up to the Supreme Court. Both were ordered to pay P200,000 (about $4,000) in “moral damages” and another P200,000 in “exemplary damages.”

“The verdict against Maria Ressa highlights the ability of the Philippines’ abusive leader to manipulate the laws to go after critical, well-respected media voices whatever the ultimate cost to the country,” Phil Robertson, deputy Asia director at Human Rights Watch, said in a statement. “The Rappler case will reverberate not just in the Philippines, but in many countries that long considered the country a robust environment for media freedom.”

Rappler and Ressa have reportedly faced numerous government investigations and court battles that press freedom advocates have blasted as judicial harassment and an attempt to silence independent media. Ressa has been an outspoken critic of Philippine President Duterte’s government, particularly its deadly war on drugs.

Ressa and three other journalists and one news organization were named TIME 2018 Person of the Year for their “pursuit of greater truths” in the face of threats.

She was also included on TIME’s 2019 list of the 100 most influential people. “My only crime is to be a journalist, to speak truth to power,” she said in her speech at the TIME 100 Gala.

Archaic law

While libel via traditional media — writing, painting, lithography, engraving, radio, photograph, theatrical exhibitions, cinematographic exhibition or similar means –has been a crime since 1932, its scope has been expanded with the passage of the Cybercrime Law of 2012, which punishes cyber libel that covers new media like the Internet. A person found guilty of libelous comments on the Internet could spend up to 12 years in prison with no possibility of Parole.

With the passage of Cybercrime Law, online libel or e-libel has emerged as the top complaint of Filipino Internet users. This has led to an increase in complaints – 494 complaints in 2016 compared to 311 recorded in 2015, an increase of 26.49% for 2016.

This led to the filing of several bills in both the Senate and House of Representatives to decriminalize traditional and cyber libel. Philippine libel laws have been considered “archaic,” as they go as far back as the Spanish Codigo Penal in 1887 during the Spanish colonial era. In 1932, during the American colonial period, they were reinforced by the Revised Penal Code (RPC). Surmise it to say, libel was conceived as a repressive tool against criticisms and insults to the colonial powers that ruled the Philippines. But since the colonial powers – Spanish and American – were long gone, Filipino politicians have taken their place of power. Yes, the Philippine Congress is now the new “colonial power.”

Constitutional provision

The 1987 Constitution under Section 4, Article III provides that “No law shall be passed abridging the freedom of speech, of expression, or of the press…” However, we have not eliminated our archaic and repressive libel provisions in our Revised Penal Code. I believe it’s time to decriminalize our libel laws and restore freedom of speech, of expression, and of the press.

The National Union of Journalists of the Philippines (NUJP), the Center for Media Freedom and Responsibility (CMFR), and other advocacy groups have advocated that criminal libel is one of the most abused means to suppress freedom of expression and press freedom in the Philippines

In light of the case against Ressa and Santos, journalists are reiterating the call for the decriminalization of libel. NUJP pointed out that a “dangerously vindictive government” has already “mangled law” to silence a critical news outfit “but unless stopped, these machinations will eventually endanger not only Rappler or the independent Philippine media but each and every Filipino who has ever posted online.”

Sword of Damocles

Indeed, current libel and cyber libel laws are like the Sword of Damocles hanging over every journalist’s head.

Libel or cyber libel has been used to harass journalists who expose politicians and government officials for alleged corrupt activities. I say “alleged” because you don’t have proof that they have committed corruption, which is hard to prove in the Philippines’ system of government. While traditional libel is hard enough to convict corrupt politicians, cyber libel puts a cloak of invincibility on corrupt politicians. Even a “like” or “share” on a derogatory post on the Internet could attract a criminal cybercrime lawsuit. It’s as simple as that. So in this age of social media, avoid these seemingly harmless Internet tools. They could be deadly and cost you imprisonment. So, why not decriminalize libel?

But getting a law passed to decriminalize libel would be extremely difficult. “After all, our antediluvian libel law and its threat of jail time is one of the weapons of choice of corrupt officialdom against those who dare scrutinize and call out their venality and abuse,” NUJP said.

Indeed, lawmakers find solace from the cybercrime law because it provides them with protection from charges of corruption. In other words, politicians can engage in corrupt activities and don’t have to worry about facing charges of corruption in court simply because to accuse them of corruption could be construed as defamation or libel. And if you’re unable to prove it, you’re liable to criminal libel charges and possible jail terms.

The question is: How do you prevent abuse from among journalists by decriminalizing libel? Presidential spokesman Salvador Panelo said that in his opinion, a civil suit for a libel case would suffice. But there is a fear that journalists would abuse it. However, a civil act could deter journalists from committing libel by suing for monetary damages, which could be imposed by the civil courts.

Sandiganbayan

The Sandiganbayan or People’s Advocate was established in the aftermath of the People Power Revolution of 1987. The Office of the Ombudsman has sole and exclusive authority to bring cases to the Sandiganbayan, which is the only court that can try and decide criminal and civil cases against government officials and employees accused of graft and corruption. The success of the Sandiganbayan is therefore predicated on the reputation and performance of the Ombudsman, who is appointed by the President.

One of the best – if not the best — Ombudsmen was retired Supreme Court Justice Conchita Carpio-Morales who was appointed by then-President Benigno Aquino III. She served from 2011 to 2018. When Carpio-Morales assumed office in 2011, she inherited a caseload of 11,000 pending criminal and administrative cases. By the end of her term, she has achieved zero – or near zero — backlog. A recipient of the Ramon Magsaysay Award, Carpio-Morales has been cited as a “fearless and indefatigable Ombudsman of the Philippines whose integrity and dignity restored the people’s faith in the rule of law.”

With cybercrime libel on the rise, what would the new Ombudsman Samuel Martires do to stop corruption? At an anti-corruption forum in December, Martires pushed for “a greater focus on preventing graft and corruption rather than punitive approach to the problem.” Hmm… Didn’t we try something like that before?

It’s interesting to note that last year, the country was ranked 99th among countries perceived to be corrupted in the 2018 Corruption Perceptions Index (CPI) of global watchdog Transparency International.

Perhaps, it’s time to decriminalize libel. That would certainly decrease the caseload of libel cases.

Comments or reactions are welcome, email me at PerryDiaz@gmail.com

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