A look into a libel trial: First witnesses up in Maria Ressa case

MANILA, Philippines – How does a libel trial go?

We got a glimpse of it on Tuesday, July 23, as the Manila Regional Trial Court (RTC) Branch 46 started trial of the cyber libel case against Rappler CEO and Executive Editor Maria Ressa and former researcher-writer Reynaldo Santos Jr.

The Department of Justice (DOJ) prosecution presented on Tuesday two witnesses – bank manager Marcelino Malonzo and National Bureau of Investigation (NBI) forensics chief Cristopher Paz.

This is over an article written by Santos and published on Rappler in March 2012 linking the late former chief justice Renato Corona to businessman Wilfredo Keng, who is the complainant.

The witnesses on Tuesday may seem trivial – Malonzo testified that he read the article, while Paz testified that the article is posted on the Rappler website, but they were actually requisites to prove all the elements of libel, the second one being publication.

But the first and the most important element is defamatory imputation. Was the article libelous or not?

"When you present evidence, it's more on the facts, when it comes to whether or not there is a crime of libel, it's up to the judge already to determine. So right now since we're in trial, we're establishing the facts to constitute the elements of the crime of libel," said Keng's lawyer Joseph Banguis.

Rappler lawyer Ted Te said the reader of the article – Malonzo – could also be used as a witness to prove defamation. (READ: TIMELINE: Rappler's cyber libel case)

"I think that was what the witness earlier was supposed to testify on, except that I don't think we got there... someone has to prove that a person who is the subject of any article was defamed, so I think the only way to prove that really, aside from the subject person himself which would be self serving, would be someone else, and I think that's what they were trying to do this morning," said Te.

Journalists as witnesses

Banguis said they did not intend to call up Ressa and Santos on the stand, but they did list as among their 7 witnesses 2 Rappler journalists – editor-at-large Marites Vitug and former researcher-writer Katerina Francisco.

Banguis said the Rappler journalists will be examined on the issue of Keng's prior requests to take down the article.

"I think the next subject matter will be Mr Keng's request before to take down the article. We have witnesses slated to testify that there were requests before made to Rappler to take down the article," Banguis said.

Te said the prosecution may possibly request subpoenas from the court to compel the journalists to take the stand.

On Rappler's side, investigative head Chay Hofileña would be the first witness, with reservation to present Ressa and Santos "if necessary."

Cyberlibel

Rappler also planned to present an expert witness on cyber libel, as its argument has always been anchored on the bounds of the law.

Aside from factual issues, the legal questions are the prosecution's theory of continuing publication, and the prescription period for cyber libel.

While the article was published in 2012, the complaint was only lodged in 2017, ordinarily a lapse of the one-year prescriptive period of ordinary libel in the revised penal code.

To be able to charge Ressa and Santos, the DOJ extended 1 year for ordinary libel to 12 years for cyber libel.

The prescription period was the basis of then NBI cybercrime chief Manuel Antonio Eduarte to dismiss Keng's complaint.

"Even if itinaas ang penalty, ang prescriptive period hindi tataas, one year pa rin (though the penalty was raised [under the cybercrime law], the prescriptive period remains one year)," Eduarte told Rappler in a phone interview on February 22.

But weeks later, the NBI transmitted the complaint to the DOJ.

Eduarte will be on the witness stand on July 30.

Asked whether Eduarte would be examined on the seeming flip-flop, Banguis said "we will see."

Te, who will have the chance to cross-examine Eduarte, also said it will depend on how the hearing will go on July 30.

The article was also written months before the Cybercrime Law was enacted in 2012, but the prosecution used the theory of continuing publication, especially because the article online reflected a later date in 2014, when some typographical errors were belatedly corrected.

Rappler has argued that the Supreme Court has already declared unconstitutional the provision penalizing aiding and abetting a cybercrime. Te argued before Branch 46 that aiding and abetting and continuous publication are the same in this context.

In a statement on Tuesday, Ressa said "this case of cyber libel stretches the rule of law until it breaks."

"How this is decided will have an impact on all Filipinos who post on Facebook - and of course, the quality of journalism in the digital age in the Philippines," said Ressa.

Te has said before that they are not closing the doors to the possibility of elevating the case before the Supreme Court. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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