[ANALYSIS] The global significance of the Ressa-Santos convictions

It baffles us how issues so central to our existence (referring to libel as a crime, and freedom of speech and of the press as fundamental rights) can still be so polarizing. But the first part of this series sheds light on the not-so-straightforward task of tracing Maria Ressa’s conviction. As a result, we are certain that by now the public has already developed a clouded understanding-turned-delusion of what this really means for us.

The Ressa-Santos convictions transcend boundaries. Sadly, it is a reflection of the global trend – happening simultaneously in countries and communities – on repression of press freedom, on undermining the primacy of public interest for the benefit of some, and on creation of fabricated “truths” for historical revisionism.

Philippines, one with the world

Shifting to a much wider global perspective, we can then see that these convictions will neither be the first, nor the last. They are only one of many who have stood – fortunately, many are still standing, including Ressa and her Rappler colleagues – in the line of fire, always ready to call out abuses hidden from the eyes of the public.

In a forum organized on that fateful day, the gruesome feeling of being jailed for doing one’s job flashed before Peter Greste, a journalist detained in Egypt for 400 days, as the news of the Ressa-Santos convictions broke. 

We know that Ressa’s case is a cut above the rest, because of the international attention that it has gained: from an international legal team mapping remedies beyond the Philippine courts, to an amicus curiae brief submitted to the Manila RTC by David Kaye, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. (READ: U.N. experts renew call for urgent probe into Philippines’ human rights abuses)

As a State party to the International Covenant on Civil and Political Rights (ICCPR), the Philippines has the obligations to respect and ensure the right to freedom of opinion (Article 19(1)) and the right to freedom of expression (Article 19(2)). Article 19(3) established a three-part test for permissible restrictions on freedom of expression: such restriction must be (a) enacted by law; (b) for legitimate aims; and (c) necessary to meet the legitimate aims.

Kaye reiterating the 2012 UN report, “The Human Rights Committee has found the Revised Penal Code and the Cybercrime Prevention Act contrary to human rights law. […] [T]he UN Human Rights Committee declared Philippines’ criminalization of libel “incompatible” with the freedom of expression clause in the [ICCPR].” Eight years had passed, but no action has since been done by the government; rather these very laws were used to convict Ressa and Santos.

Kaye also observed: “Journalists and writers are regular targets of defamation prosecutions or civil lawsuits. In Angola, for instance, the Government charged and convicted an author of criminal defamation upon publication of a book on conflict diamonds and corruption in the country. Honduran officials have reportedly intimidated journalists and human rights defenders on charges of defamation.”

Public interest, not public figure

In libel law, malice is an element of the crime: this “connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed.” Malice has two types: malice in law, which is a presumption of law, and malice in fact, which must be actually proven. 

Judge Estacio-Montesa, we argue, wrongly used the case law in Disini v Secretary of Justice (2014), which states that “where the offended party is a private individual, the prosecution need not prove the presence of malice,” meaning malice in law applies. According to the judgment, “the prosecution sufficiently established that Keng is a private person being a businessman, with interests in several companies based in the Philippines and China” and thus Rappler’s article is automatically presumed to be malicious. (READ: DOCUMENT: Decision on cyber libel conviction of Maria Ressa et al)

Such interpretation of the law desecrates the public interest involved in this case and in future defamation cases involving journalists who endeavor to uncover the truth. A private individual must not be allowed to claim the benefit of malice in law in alleged defamations concerning matters of public interest, such as Keng’s involvement with the former Chief Justice – a public official and definitely of public interest. Once a person crosses the line of public interest, he may not anymore claim the benefits reserved for purely private individuals, e.g. malice in law.

The case of Borjal v Court of Appeals (1999) should be the lighthouse as to this matter. The Court warned that Wenceslao, the complainant in this case, cannot hide behind the fact that he is a private individual. “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant’s prior anonymity or notoriety.”

With this is a long standing precedent on libel law protecting journalists to make excusable errors as to publications of public interest, without fear of punishment and reprisal, as long as these are done in good faith and in response to civil duty.

Overflowing conviction

Looking at the Philippine press freedom situation during the Duterte administration, Ressa took the first fall. Of course, we gravely condemn the horrific violence directed to local journalists who were extralegally killed in this regime. But Ressa has been the first recipient of the total power of the State, with all the workings of the Executive, Legislative, and Judiciary, used to purge a member of the press.

With this machinery is the equally dangerous efforts to discredit the press and the work that they do by groups who disrupt the information ecosystem and influence public thought.

To think that the conviction will only last for at least 6 years is wrong. This imprisonment will last for generations and lifetimes to come, and haunt the national memory. Unknowing Filipinos will then read Ressa and her imprisonment as an indictment against her and journalists who held the line, like how some Filipinos now think of Marcos era desaparesidos as rebels who deserved to have died and subjected to torture for the country’s peace and order.

The conviction is beyond Ressa. It permeates all of us, as individuals and as a people. It overflows from an exaction of liability to a stamp on historical revisionism, a stamp to what Ressa has been passionately fighting against – post-truth.

Finally, as a way to move forward, a play on the word “conviction” would lead us to “conviction” – not the court’s verdict, but the temperament of one’s soul, the magnanimity of one’s heart. With this, the Ressa-Santos convictions to fight for the truth must really transcend all boundaries and spread to all of us.

With such contagion of conviction, hopefully not of the former, but the latter, may we see that we are not mere dominos. We are not some tool nor toy to be lined up, to fall whenever some prime mover wills it. We are persons with agency capable of stopping the next fall. We are capable of holding the line. – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government.

Jayvy R. Gamboa is a student at the University of the Philippines College of Law and an advocate of youth formation.