Seares: What worked against Ressa, Santos: 1) The complainant being a private person; 2) Rappler’s failure to publish Keng’s side

Pachico A. Seares

THE element of libel that journalists usually find easy to knock down and thus escape liability is malice.

Even if a published material is erroneous and defamatory, the journalist is generally presumed to lack malice or ill-will or spite. One element less of the five elements, there is no crime.

In the case of cyber-libel filed against Rappler chief executive officer and executive editor Maria Ressa and its former researcher-writer Reynaldo Santos by businessman Wilfredo Keng, the presumption of absence of malice did not benefit the accused.

The two journalists were declared guilty last Monday, June 15, by Manila Regional Trial Court Judge Rainelda Estacio-Montes and each was sentenced to at least six months and one day to six years in prison and pay P400,000 moral and exemplary damages. They will remain free on bail until their appeal is decided by higher courts.

Malice is presumed

Ressa and Santos were presumed to be malicious because Keng, the offended party, is a private individual. Keng was neither a public official nor a public figure. Called malice in law, it does not have to be proved by prosecutors, unlike malice in fact, which has to be proved to convict the journalists.

(Here in Cebu, that was the reason that in suing broadcaster Bobby Nalzaro for libel, then former mayor Tomas Osmeña alleged in 2015 he was not a public official because he was no longer mayor and, more recently, his son Miguel in his own lawsuit also alleged in 2018 he was not a public official. Father and son were, however, deemed public figures when the alleged libel was committed. Thus they couldn’t enjoy the presumption of proof of malice in law and had to prove Nalzaro’s actual malice.)

A stricter standard—proof of malice in fact—would’ve been required if Keng were a public official or public figure. As it was, malice was presumed from the defamatory statement, which the court said was also established. It was the burden of Ressa and Santos to prove they had no malice in publishing the story about Keng. To the court, they failed in that task.

Story was not verified

The court found evidence of malice in fact from reporter Santos’s failure to verify the allegation in the supposed National Security Council intelligence report, which has ascribed various big crimes to Keng, including drug and human trafficking and murder. Rappler published the story, the court said, with “reckless disregard of whether it is true or not.”

Santos did not verify with law enforcement agencies concerned. Keng presented certifications from PDEA and NBI that he had no bad record with those agencies.

Right of reply denied

The other factor that led to the conviction of Ressa and Santos was that Rappler failed to publish the side of businessman Keng.

Originally published on May 29, 2012, the story about Keng was “republished” on Feb. 9, 2014.

Right of reply, routinely granted to news sources aggrieved by a newspaper or news site’s story, helps the universal journalism rule of fairness. It also helps dispel the suspicion of malice, an essential element of libel.

‘Buried’ by other news

Keng argued there was malice because despite efforts to have Rappler retract the story or publish its side, the news site did not. A Rappler reporter interviewed Keng’s lawyer and wrote and filed the story. It never got published. A senior editor, Ma. Rosario Hofileña, testified that the story was not posted “because it was buried by more urgent news.”

The court said it is convinced that both Ressa and Santos were aware of the “probable falsity” of the story since Keng’s lawyer had pointed out the inaccuracies in it. But they didn’t publish the clarificatory article, the court said.

Basic lessons

Until a higher court would reverse its finding, the RTC decision, especially on findings of fact, stands for now.

Which tells us where Rappler might have failed:

[1] Lack of diligence in getting the story right, required more by the fact that it concerned a private person;

[2] Failure to publish the offended party’s side, which cannot be justified by bigger news. An aggrieved person’s reputation is always a huge thing.