What Maria Ressa conviction means for reporting confidential sources

A Manila court ruling that convicted Rappler journalists of cyber libel may have an effect on reporting confidential sources.

"There's a Damocles sword hanging over our heads... it's meant to make you doubt yourself, it's meant to make you not push as hard because there will be consequences. What you need to do is look ahead and do the stories," Rappler CEO Maria Ressa said on Monday, June 15, after she and former researcher-writer Reynaldo Santos Jr were convicted of cyber libel.

It was Santos, along with the late, award-winning investigative journalist Aries Rufo, who wrote the investigative report in May 2012, linking the late former chief justice Renato Corona to the use of SUVs of businessmen, including the complainant, Wilfredo Keng. Keng was described in the article as having a "shady past," based on an intelligence report, as well as a Philstar.com report that linked the businessman to murder.

In 2016, Keng's lawyer reached out to Rappler and gave a copy of a certification from the Philippine Drug Enforcement Agency (PDEA) clearing him of any derogatory record in the agency.

Ressa said on Monday that the intelligence report was not from PDEA, that's why Rappler needed to verify the PDEA certification – a process that was not finished because the news group said it was overtaken by reporting on the bloody drug war.

Judge Rainelda Estacio Montesa faulted Rappler for not publishing a clarification, and said the "article was republished with reckless disregard of whether it was false or not."

"This clearly shows actual malice," said the judge.

In 2014, however, the only change done in the story was the correction of a typographical error, nothing else.

Malice

Malice is an important element of libel.

Rappler counsels had argued that malice needs to be proven beyond reasonable doubt.

Judge Montesa said malice is presumed if the subject is a private person like Keng.

"The Revised Penal Code and the Cybercrime Law, on the other hand, impose a stricter standard on malice to convict the author of the defamatory statement where the offended party is a public figure," the judge said, quoting an earlier Supreme Court decision.

"The Supreme Court, in the case of Disini vs Secretary of Justice, already settled that there is malice in law in case the offended party is a private individual," the judge said.

Judge Montesa said Rappler should have shown a "justifiable reason for the defamatory statements even if it were in fact true. Lamentably, the defense miserably failed in this regard."

Article 354 of the Revised Penal Code says "every defamatory imputation is presumed to be malicious even if it be true," except if it is:

1) a private communication

2) a fair and true report, made in good faith of official proceedings which are not confidential.

Rappler had argued Santos fell under the 2nd exception, because he was just reporting on a confidentially-sourced report.

How to treat confidential sources

The 37-page decision did not discuss how to treat such confidential sources. 

But during trial, Judge Montesa agreed that the Sotto Law allows Rappler to protect the "confidentiality of its source."

"The Court is convinced that both accused are aware of the probable falsity of the subject considering the fact that Atty [Leonard] De Vera pointed out the inaccuracies in the subject article, and the receipt by [Rappler] of the said PDEA certification," said the ruling.

In her final notes, which Judge Montesa ordered to be read aloud in court along with the dispositive portion, the judge lectured that the free press must also be responsible.

"With the highest ideals in mind, what society expects is a responsible free press. It is in acting responsibly that freedom is given its true meaning," said the judge.

Ressa and Santos were sentenced to a minimum 6 months and 1 day to a maximum of 6 years, but were granted post-conviction bail under the same bond worth P100,000 each. The conviction is appealable all the way to the Supreme Court.

The judge also ordered Ressa and Santos to each pay Keng P200,000 in moral damages and P200,000 in exemplary damages.

In convicting Ressa and Santos, the judge heavily quoted from a Tulfo libel case which said, "it is in fact too easy for journalists to destroy the reputation of public officials, if they are not required to make the slightest effort to verify their accusations." 

Before the reading of the verdict, Santos – an investigative reporter before his resignation from Rappler and media in 2016 – said to this day, "I stand by my story."

Ressa said, "Courage means if someone powerful comes at you to take down a story, you don't blindly take it down, but double check or triple check because it is also a way to intimidate you." 

"We know this first hand, Inquirer and Rappler did a story on the frigates scandal, and for that we were kicked out of the Palace and later, President Rodrigo Duterte admitted to that story," said Ressa.

"Investigative journalism is needed today more than ever," said Ressa, who faces 7 more criminal charges in court.

Rappler also faces a shutdown order that is currently being reviewed by the Securities and Exchange Commission. – 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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