DOJ: You can be sued for cyber libel within 12 years of publication

Lian Buan

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DOJ: You can be sued for cyber libel within 12 years of publication
Cyber lawyer and Rappler counsel JJ Disini says this interpretation of the cybercrime law 'can impact on constitutionally-protected rights,’ and can be raised before the Supreme Court,

MANILA, Philippines – The cyber libel charges that the Department of Justice (DOJ) filed against Rappler CEO Maria Ressa now makes it possible for online publishers to be sued for the crime within 12 years of publication.

DOJ Undersecretary Markk Perete said on Thursday, February 14, that extending the liability period for libel does not constitute an attack on press freedom.

“The right of a free press does not extend to the making and/or publication of defamatory remarks. That is why in our statement we made it clear that a prosecution for libel does not result to denial of press freedom,” said Perete.

Leading cyber lawyer and Rappler counsel JJ Disini said that the DOJ’s interpretation of the Cybercrime Act has lasting impacts on “constitutionally-guaranteed rights,” and which may lead petitioners to go back to the Supreme Court to clarify the provisions of the law once more.

“There would be grounds to raise issues before the Supreme Court on particularly how the cybercrime prevention act is interpreted and how that interpretation can impact on constitutionally-protected rights,” Disini said. (READ: Maria Ressa arrest tests the bounds of Philippine cyber libel law)

Legal issues

The ordinary libel, or libel as punished by Article 355 of the Revised Penal Code (RPC), says “the crime of libel or other similar offenses shall prescribe in one year.”

It means that under the RPC, you can no longer be sued for libel one year after you publish. 

Things changed when the cybercrime law was enacted in September 2012. The Supreme Court stopped the implementation of the law in October 2012 while it tackled several petitions questioning some provisions.

Only on February 11, 2014, did the Supreme Court issue the decision that clarified parts of the law.

Prescriptive period

Still, the law that came out of the Supreme Court decision did not specify a prescription period for cyber libel.

Here is where the DOJ found a reason to indict Ressa and former Rappler researcher-writer Reynaldo Santos Jr. The article in question was published May 2012. The Cybercrime Prevention Act was enacted only in September 2012.

But edits made on February 19, 2014, to correct typographical errors were considered by the DOJ as a republication, or essentially a new crime. The justice department then applied the 2012 cybercrime law.

The next issue that had to be resolved was – even assuming that the story was re-published in February 2014, the RPC still says you can’t sue for libel after one year, or after February 2015.

Businessman Wilfredo Keng filed the complaint only in October 2017.

The DOJ said that because the cybercrime law is a special law, it falls under Republic Act 3326 which provides for prescription period for special laws. 

“Under RA No. 3326, which governs the prescription of offences punished by special laws, such as RA No. 10175 (Cybercrime), the prescriptive period of the offense is charged 12 years. Clearly the 19 February 2014 publication has not prescribed,” said the DOJ in its resolution.

Cause for alarm

Lawyer Romel Bagares, one of those who petitioned against the cybercrime law before the Supreme Court, said they had long warned against the possibility of extending the liability of cyber libel to 12 years.

Bagares said “at least in his experience,” Ressa’s case is the first cyber libel case where the government has made use of the 12-year prescription period.

Disini said it should alarm everybody who publishes content online.

“So if you’re a blogger and you published something in 2015, you would have believed that under libel, no one could file a case against you now, With the position taken by the DOJ, anything you publish between 2012 and now is open for potential lawsuit. So there could be cases that other lawyers would have said, you can’t file that case anymore because the one year period has lapsed, now those lawyers will say the DOJ said it’s 12 years so now we can file cyber libel,” said Disini.

What the Supreme Court said

A contention is: was the DOJ correct in interpreting cyber libel’s prescription to be 12 years?

Disini said no. According to him, cyber libel’s prescriptive period should still be based on the RPC, which is one year.

In the 2014 decision of the Supreme Court, the en banc said that cyber libel is “not a new crime but is one already punished under Article 353 (of the RPC).”

But the Supreme Court also said that the penalty to be imposed on cyber libel should be one degree higher than that in the RPC.

In the RPC, the penalty for libel is 6 months to 4 years.

“As the crime of libel was committed by, through and with the use of information and communications technologies, the penalty is raised to one degree higher as prescribed under Section 6 of R.A No. 10175. This would be prison correctional in its maximum period and prison mayor in its minimum period, or 4 years-8 years,” the DOJ said.

The DOJ then said that this now falls under Section 1(d) of RA 3326, which says that violations in special acts shall prescribe “after twelve years for any other offense punished by imprisonment for six years or more, except the crime of treason, which shall prescribe after twenty years.”

Attack on press freedom?

Asked if the extended liability period is considered an attack on press freedom, seeing that enemies can sue for libel even after a decade has passed, Perete said: “The decision to prescribe a longer prescriptive period for the offense of cyber libel is within the province of the legislature.”

Guevarra said: “The law on libel applies to everyone, not only to journalists.”

Center for Media Freedom and Responsibility (CMFR) chairman Vergel Santos told ABS-CBN that the real solution would be to decriminalize libel.

For her part, Ressa told Guevarra: “These are your actions – the ripple effect of what we feel in society. You don’t want to be known as the secretary of injustice, I also have the right to hold you accountable.” – 

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.