Seares: RTC ruling vs. Ressa, Santos gives tutorial on editor/owner’s liability for libel

Pachico A. Seares

Most judges cannot resist the chance to lecture journalists when they decide against them in cases of libel before their court. Partly as preemptive defense of their ruling, especially when it is potentially controversial. Partly as education of that segment of the public that still values press freedom as crucial to keeping other freedoms.

Manila Regional Trial Court Judge Rainelda H. Estacio-Montesa was no exception when she found Rappler’s Maria Ressa and Reynaldo Santos Jr. guilty of cyber-libel for publishing a news story about businessman Wilfredo Keng’s alleged link to major crimes.

In her June 15 ruling, she sentenced Ressa and Santos to imprisonment of six months and one day to six years and paying Keng damages of P400,000 each.

It was a tutorial of sorts, mainly on:

[1] LIABILITY OF OWNER AND EDITOR. Ressa put up the defense that she had no participation in the publication of the Keng article. The court rejected that, saying

(a) proof of participation by Ressa was not required; for her and any other accused who had been specifically described as “author, editor or proprietor” or “printer-publisher”; (b) Ressa, besides being executive editor, was also business manager of Rappler, its chief executive officer, its owner and publisher; (c) libel being published in a newspaper (equating Rappler with a newspaper) is “sufficient evidence prima facie to charge the manager or proprietor with the guilt of the publication.”

All that might give the impression that the editor, publisher or owner (evcn printer) of a publication automatically is guilty for what is published, even if he or she has not actually taken part in its writing or editing.

Liability attaches only if all the elements of libel are present, especially these: The material is defamatory and there is malice.

How then can an editor/owner/printer who has no knowledge of, and has not even seen, the news story before publication be guilty of ill-will or spite?

Ressa was found guilty even if she might not have been actually malicious. Because she was presumed to be malicious and her lawyers, to the court, failed to refute it. Malice in law remained since her lawyers, to the court, did not prove absence of malice in fact. Ressa could’ve been acquitted if defense had established that the story was true and the story was published with “good and justifiable motives.”

Not helping her and Santos was this fact: Keng was not a public official or public figure but still deemed a private person even though he is a hyper-rich businessman. Malice was presumed and had to be struck down. The court believed it was not.

[2] DUTY TO VERIFY, RIGHT OF REPLY. The Ressa-Santos case exemplifies a situation where denial of the right of reply provides the complainant Keng and the court ammunition against journalists.

Judge Montesa repeatedly pointed out the failure of Rappler to get King’s side of the story despite efforts of the businessman “to reach out” to the news site: (a) by not verifying the allegations against King—which linked him to drug trade, human trafficking and a murder—before publishing it; and (b) by writing but not running his answer and clarification to the charges, thus denying an aggrieved subject of the news the right of reply.

Rappler started to grant that right by assigning a writer to talk with Keng who wrote and filed the story. But Rappler did not publish it because, as one editor testified in court, other stories “buried” it.

A case of oversight or negligence then (a cardinal sin given all those 24/7 news cycles of digital news media). OK, it might not have come from ill-will or spite. But the court was convinced that even factually there was malice.

Interestingly, the court saw in Ressa’s use of the “executive editor” title as a scheme of Rappler not to use the title “editor-in-chief.” A “clever ruse” to avoid liability of its officers, the court says. An unfair and limp conclusion because anyone in the news organization—given the wide and broad umbrella of “the persons liable” provision in libel—may be sued. If a printer or circulation manager may be dragged to court, Ressa cannot seek refuge behind the title of “executive editor.”

[3] RESPONSIBILITY UNDER FREE PRESS. Judge Montesa’s reminder about free speech and free press comes under the last subheading titled “A final note.”

Which is not a note because it runs to almost 30 paragraphs, just before the part that pronounces the jail sentence and damages.

The last paragraph says “the exercise of a freedom should and must be used with due regard to the freedom of others.” Plus a popular quote attributed to Nelson Mandela, “for to be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others.” (Which is only part of Mandela’s longer statement, where he says that after climbing a hill, the African freedom fighter finds out there are more hills to climb, and with the responsibilities that come with freedom, he “dare(s) not linger, for my long walk is not yet ended.”)

The paragraphs preceding the punch line are mostly about the constitutional guarantee on free speech, the limits on the right, and the ruling not being a curtailment of press freedom. A mouthful, most of which journalists know by heart.

A judge once told me privately that a court can decide either way and has ample jurisprudence, along with the quotations and precepts, to support a finding of acquittal or guilty.

THE DILEMMA here is that the issue of press freedom cannot be settled by the libel case alone. The “assault” on Rappler is not waged by one libel complaint. It comes with other initiatives, from banning reporters to suing the news media site for corporate practices. It must also be taken with the rest of the media landscape. What has been going on there? Selective target or general attack that starts with pinpoint bombing? This column has taken up mostly the standards of journalism in the libel cases discussed here.

Unfortunately in the Rappler case, it looks like, basing on the RTC ruling, the digital news site may have failed on the basic standards of verification and right of reply.

Adding to its woes was that Congress had failed to specify the period of prescription for cyber-libel. Twelve years, as exception to the one-year expiry period for all other libels. That’s 11 degrees higher or harsher—and counted from each “republication.” Shoot.

[DISCLOSURE: Seares is executive director of Cebu Citizens-Press Council (CCPC) whose advocacy includes seeking an express prescriptive period for cyber-libel and removal of imprisonment as penalty for libel. A lawyer, he also taught journalism law and ethics at UP Cebu.]