Dura Lex, Spandex

DURA LEX, SPANDEX

Recently, former Chief Justice Artemio Panganiban in “With Due Respect” argued against claims that the Regional Trial Court (RTC) decision of Judge Rainelda H. Estacio-Montesa is “baseless” and “capricious.”

See: https://opinion.inquirer.net/130986/cyberlibel-and-maria-ressa

—Artemio V. Panganiban, “Cyberlibel and Maria Ressa,” Philippine Daily Inquirer (June 21, 2020)

To cut to the chase, I beg to disagree. While the decision is certainly not baseless, it is capricious.

We will not deal with all the points he raised and focus instead on the claim of “republication” wherein we believe the caprice of the decision is most glaringly evident.

Our view is advanced with due respect, “due” underscored.

The text of the Montesa decision is available at this link:

https://abogado.com.ph/read-the-37-page-decision-of-manila-rtc-on-maria-ressa-cyberlibel-case/ 

 

—“Read: The 37-page decision of Manila RTC on Maria Ressa cyberlibel case,” Abogado.com.ph, June 15, 2020

The allegedly libelous article about Wilfredo Keng was originally published on May 29, 2012, and the Cybercrime Law was passed on September 12 the same year.

Because of the proscription against the retrospective application of the law, we believe that the Cybercrime Law does not apply to the article.

The 1987 Philippine Constitution, Article III, Section 22 specifically declares, “No ex post facto law or bill of attainder shall be enacted.”

Philippine criminal law applicable to the publication of the article can be found in the section on Libel in the Revised Penal Code, especially Articles 353 to 355. Furthermore, Article 90 says the crime of libel prescribes in one year.

Because Keng filed the libel case on February 5, 2019, well over six years after the original publication of the article, we conclude that the crime has prescribed.

Panganiban says that the article was “republished” on February 19, 2014 because a very minor spelling correction was made, “evation” to “evasion.”

This assumption of “republication” is problematic. The Free Legal Assistance Group (FLAG), counsel for the respondents, makes the following arguments [boldface mine].

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In charging Rappler, Ressa and Santos, the DOJ used the theory of republication and said that the cybercrime law now covers the article because it was “republished” in 2014.

In justifying that, the DOJ used the 1988 case Soriano vs Intermediate Appellate Court where the Court said “we follow the multiple publication rule.”

In that case that concerns jurisdiction, the Supreme Court said “that each and every publication of the same libel constitutes a distinct offense,” and that “every time the same written matter is communicated such communication is considered a distinct and separate publication of the libel.”

The Free Legal Assistance Group (FLAG), Rappler’s counsels, said the Soriano case is not authoritative because it was a decision of a division and not the en banc, and that only jurisdictional issue was settled there.

Jurisdictional issues are crucial for libel cases because complainants have used libel as harassment suits, by filing cases in faraway places, or by filing in more than one place.

FLAG said multiple republication does not apply to online media, and, citing American jurisprudence, does not apply if there is no substantial change to the article.

“Even assuming only for the sake of argument that ‘republication’ applies, it can only apply if there was a substantial change,” said Rappler in the memorandum submitted to the court, and prepared by FLAG.

“Not a single sentence or word was altered, with the only change being a spelling correction,” FLAG added.

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See: https://rappler.com/nation/verdict-primer-legal-factual-issues-rappler-maria-ressa-cyber-libel-case

—Lian Buan, “Verdict Primer: Legal and Factual Issues in Rappler, Maria Ressa Cyber Libel Case,” Rappler.com (June 13, 2020)

The logic of the above argument is plain and simple for the layperson. Once an article is published online, it remains the same article when it was first published unless substantive content changes are made.

Even if the article is taken down for a short period, purposely or as a result of some electronic malfunction, which is commonplace these days, the article is not “republished” because the publication is in effect continuous.

Internet content vis-à-vis content in print and related media are very different in this particular respect. Internet content is continuously published and as a rule continuously accessible because Internet technology features convenient storage and retrieval. In contrast, print and related media, once they begin to accumulate content, become difficult to access or practically inaccessible. Internet media are thus in a state of continuous publication. Print and related media are not because they are generally not continuously accessible.

The logical fallacy entailed in equating Internet publication with print and related publication is a type of faulty analogy.

“This fallacy consists in assuming that because two things are alike in one or more respects, they are necessarily alike in some other respect.”

See: https://www.txstate.edu/philosophy/resources/fallacy-definitions/Faulty-Analogy.html

—“Faulty Analogy,” Department of Philosophy, Texas State University

Panganiban alludes to critical differences between Internet publication vis-à-vis print and related publication, when he contrasts cyberlibel with libel, saying, “While they may belong to the same genre of crimes penalizing defamation, they are different and distinct offenses.”

See: https://opinion.inquirer.net/131235/qa-on-cyberlibel#ixzz6TRXvxabi

—Artemio V. Panganiban, “Q&A on Cyberlibel,” Philippine Daily Inquirer (June 28, 2020)

Media law experts have remarked on the fact that issues concerning Internet libel, republication, prescription, and related are unsettled. In effect they concede that Internet publication is critically different from print and related publication [boldface mine].

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…media law pundits said the principles of prescription and republication online remained a legal gray area that could be taken up by a higher court.

“The legal issue will be what is republication in the online sense, because the article was published in 2012 and it’s been there since 2012, but when the article was edited in 2014 [mind you, a single letter was changed], was that already republication?” said Sandra Olaso-Coronel, who teaches at the University of the Philippines (UP) College of Law.

“That’s another issue that will be determined by the Supreme Court,” she said.

Olaso-Coronel said Ressa’s case could be an opportunity for the Supreme Court to finally address the provisions of cyberlibel that had remained vague.

Republication issue

“The issue of republication is already settled in newspapers and in broadcast, but not in online,” she said. “Here, the article was edited and brought back online. Under the technical process of editing, you take it down and put it back online so it would look like it was just published.”

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See: https://newsinfo.inquirer.net/1292754/media-law-experts-sc-can-clarify-online-republication#ixzz6TRqYbmzq

—Mariejo S. Ramos, “Media Law Experts: SC Can Clarify ‘Online Republication,’” Philippine Daily Inquirer (June 17, 2020)

Abe N. Margallo, a former Constitutional Law professor, argues that the “multiple publication rule” applied in the Ressa case is “antiquated,” wanting in logical application given new media developments [boldface mine].

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The adoption of the multiple publication rule suited small communities when the distribution of printed materials was minimal, thus limiting the exposure of publishers to libel suits.

The logic of the multiple rule has begun to be challenged with the breakthroughs in modern mass publication, which has allowed a single defamatory statement to reach an audience in millions, consequently exposing writers and publishers to countless lawsuits, while also rendering the limitation period to file lawsuits almost nugatory.

The case of Soriano v. IAC (1988) has been cited by Judge Rainelda Montesa in finding journalist Maria Ressa guilty of “cyberlibel,” to highlight her point that the multiple publication rule since Montinola has remained the doctrine in the Philippines.

The Supreme Court in Soriano [said] “This rule (‘multiple publication’ rule) is still followed in several American jurisdictions, and seems to be favored by the American Law Institute. Other jurisdictions have adopted the ‘single publication’ rule which originated in New York, under which any single integrated publication, such as one edition of a newspaper, book, or magazine, or one broadcast, is treated as a unit, giving rise to only one cause of action, regardless of the number of times it is exposed to different people…”

Under the latter rule, a mass publication, such as an edition of a newspaper or a television broadcast, is considered to be a single publication regardless of the number of people to whom, or the number of jurisdictions in which, it is communicated. The new rule was considerably developed in the United States in the 1950s to prevent multiple suits, unburden judicial resources, and preserve defendants’ as well as plaintiffs’ rights. Pursuant to it, a cause of action arises when the publication is first made, and the prescriptive period commences to run from such a date. With the explosion of the Web, courts have approvingly taken stock of its application to online defamation.

Contrary to the aforesaid Philippine rulings, the multiple publication rule has long fallen into disfavor in [the] majority of American courts, which now follow the single publication rule. Rightly so, especially with online publication, since it is essentially a mass publication on steroids that demands simplification.

The multiple publication rule has passed its logic and can only be retained in the Philippines at the risk of petrifying well-meaning communicators into self-censorship while disproportionately protecting the reputational concern of potential plaintiffs. The Supreme Court, at the appropriate time, should spare no effort abandoning this rule for being an unconstitutional abridgment of free expression.

Abe N. Margallo is a published author and a former Constitutional Law professor.

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See: https://opinion.inquirer.net/131638/maria-ressas-case-and-an-antiquated-rule#ixzz6TTESeNSS

—Abe N. Margallo, “Maria Ressa’s Case and An Antiquated Rule,’” Philippine Daily Inquirer (July 11, 2020)

Sitting at the center of legal issues regarding new media and demanding careful and judicious analysis from our courts up to the highest level, the Ressa case calls for more cogent argument.

To wit, it is hardly adequate for Montesa—for that matter, Panganiban, who takes up her cause—to peremptorily assume “republication” of an allegedly libelous article on the basis of the correction of a single letter.

FLAG in their motion for reconsideration underscores this precise point [boldface mine].

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FLAG said that when Judge Montesa ruled that the update constituted a republication, she “did not even bother to cite any shred of support for its unilateral statement.”

“Of the 170 footnotes in the 36-page Decision, not a single reference is made to support this assertion...The absence of any such reference cannot be trivialized or shrugged off because of the constitutional command that ‘(n)o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based,’” said the motion.

“The pronouncement amounts to a ‘judicial ambush’ that so offends every notion of judicial propriety and basic fairness as to lend itself to nullity,” said FLAG.

The prosecution, as upheld by Judge Montesa, relied on the 1988 Supreme Court case Soriano vs Intermediate Appellate Court where the Court said, “We follow the multiple publication rule.”

FLAG pointed out that the 1988 case’s main concern is jurisdiction, and that the Philippine Supreme Court has not authoritatively made a ruling on republication as applied to online media.

Critics of the cybercrime law have been saying for years that the fluid nature of the internet makes the cybercrime law “draconian.”

The [motion for reconsideration] said that in a United States case, content is only considered republished if there was substantial modification.

“In the absence of controlling Philippine jurisprudence on ‘multiple republication to online media,’ American case law is persuasive and provides guidance for this court in addressing this specific issue of first impression,” said FLAG.

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https://rappler.com/nation/ressa-santos-motion-for-reconsideration-cyber-libel-conviction-manila-court

—Lian Buan, “Ressa, Santos Seek Reversal of Cyber Libel Conviction, Cite 13 Errors,” Rappler.com (June 29, 2020)

The Montesa decision cannot be evaluated or understood without taking into account the political context.

Panganiban says, “…judges decide cases only from the evidence vetted in court, not from street parliaments and media utterances. It is unfair to accuse the judiciary of bias, incompetence, subservience, or corruption for ignoring out-of-court tirades.”

See: https://opinion.inquirer.net/131450/saving-maria-ressa

—Artemio V. Panganiban, “Saving Maria Ressa,” Philippine Daily Inquirer (July 5, 2020)

Respectfully, those of us who witness evidence all around of the Philippine judiciary bending to the will of the current occupant of Malacañang would probably receive the above opinion as that of a distinguished citizen cerebrating inside a protective fantasy.

“A review of salient cases that have been considered by the Supreme Court suggests a judiciary largely unwilling to rule against the president.

“…These salient cases show not only the court’s apparent unwillingness to exercise its veto power but also its lack of power to deter. The fact that the administration persisted in litigating and defending these cases demonstrates its confidence that the Supreme Court would uphold the legality of the president’s actions.”

See: https://www.democratic-erosion.com/2019/12/02/is-there-judicial-independence-in-dutertes-philippines/

—Edcel John Ibarra, “Is There Judicial Independence in Duterte’s Philippines?” (December 2, 2019)

To put it simply, Maria Ressa, a leading Filipino journalist hated by Duterte, is convicted of cyberlibel, a crime that did not exist when the article was published. She is convicted based on the alleged “republication” of the article, a spurious pretext built on the editor’s revision of a single letter in the article on the Internet.

Montesa’s decision may be arguable both ways, but in asserting “republication” on the basis of the correction of a single letter, her exposition smacks of lurid casuistry.

All things considered, her assertion would stretch the law to fit the alleged offense, transforming it into a crime. Dura lex, Spandex.