Two weeks ago, in a move that surprised no one, a Philippine judge convicted journalists Maria Ressa, the executive editor of the independent news outlet Rappler, and Reynaldo Santos, Jr., a reporter there, of “cyberlibel.” The case against Ressa and Santos hinged on a May 2012 article that explored a possible link between the then-Chief Justice of the Supreme Court and a prominent businessman alleged to be involved in human-trafficking and the drug trade. Ressa and Santos remain free on bail, but face up to six years in prison.
Their conviction is the culmination of an orchestrated campaign of government pressure and harassment directed against Rappler in response to its critical coverage of Philippine politics. In a tactic that has become increasingly common around the world, the government of President Rodrigo Duterte has sought to hide its repressive action behind a veneer of democratic legitimacy, using the courts as a cudgel.
A close reading of the 37-page legal decisions handed down by Judge Rainelda H. Estacio-Montesa in a Manila Regional Trial Court shows the ways in which the law has been manipulated to achieve the outcome desired by the Duterte regime.
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The cyberlibel law itself violates international norms and democratic standards in classifying libel as a criminal, rather than civil, offense. The Rappler article at the center of the case was first published in 2012, months before the cyberlibel law was enacted by Congress. But Estacio-Montesa, the judge, determined the correction of a spelling error in 2014 constituted an act of republication; thus, by her reasoning, the law applied. (The Justice Department also extended the statute of limitations for cyberlibel to 12 years.)
Estacio-Montesa also failed to take into account the public interest in determining the legal protections that should properly apply. The government’s criminal case against Rappler is based on its contention that businessman Wilfredo Keng was libeled in the article. The article did, in fact, allege that Keng had engaged in a range of criminal activities, from human trafficking to cigarette smuggling. Keng has denied those allegations, which were based on intelligence reports and other news accounts.
But the article wasn’t about Keng; it was about Renato Corona, then the chief justice of the Supreme Court, who, based on license plate records, was alleged to be driving Keng’s bulletproof SUV. The fact that the Chief Justice of the Supreme Court may have had a relationship with an alleged criminal was newsworthy and unquestionably an issue of public concern.
In the United States, the public interest is codified in law in several ways, including the “actual malice” standard, articulated in the US Supreme Court’s 1964 landmark decision in New York Times v. Sullivan. Justice William Brennan, writing for the majority, distinguished between private citizens and public officials who, in order to claim damages for libel, must demonstrate that information published is not only false but published in “reckless disregard of the truth.” The logic, in Brennan’s famous phrase, was that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The UK’s 2013 Defamation Law reform, intended to curtail “Libel Tourism,” included a public-interest defense, limiting liability when journalists reasonably believed they were acting in the public interest.
Legal protections for expression related to the public interest is less directly articulated in international law, according to David Kaye, a law professor at the University of California, Irvine, and the UN special rapporteur for free expression. However, the principle that political speech should be granted robust protection is a well-understood and accepted international norm based on a recognition that, without a free press, there can be no accountability—and that, without accountability, democracy does not exist.
Yet, in her decision, Estacio-Montesa failed to grapple with the hard questions. While the actual malice standard exists in Philippine law, the judge determined that it was not relevant because Keng “is a private individual and not a public figure.” This determination is dubious on its face, since Keng is a prominent businessman who has been engaged in public activities and has been the subject of news coverage. But the chief justice of the Supreme Court is unquestionably a public official, and his activities and actions are a legitimate issue of public concern. The failure of Estacio-Montesa to consider this fact in her ruling was a dereliction of responsibility.
In making her legal ruling, the judge looked solely at the protections to free expression in the Philippines. These, at least from a legal perspective, are admittedly robust, and provide the same protection to all Fiilipinos, whether a gossip columnist, a social media ranter, or an investigative journalist. But Estacio-Montesa emphasized in her ruling that freedom of expression is “burdened with responsibility,” asking in one instance, “Can this right be invoked at all times even if a person has trampled on the rights of another?”
Freedom of expression is, of course, never absolute. But in her effort to determine the proper balance, Estacio-Montesa failed to consider the relevant legal standard. In a world where everyone has an opinion and the ability to express his or her ideas, special considerations and protections must be available to speech that serves a broader social purpose—whether that speech comes from journalists, human-rights defenders, labor activists, or others. Defining the public interest is complex and not without risk, because it grants judges some level of discretion. But at a time when a record number of journalists are in prison around the world, and when autocratic leaders seek to use the law as an instrument of state repression, journalists demanding accountability and exposing government wrongdoing must be granted appropriate legal protection.
This must start with Ressa and Santos. What is at stake, of course, is their freedom, as well as the survival of Rappler. But journalism is also on trial, and the decision in their case has implications for the media everywhere. Yesterday, Ressa’s legal team, led by Amal Clooney, filed a Motion for Reconsideration. Judge Estacio-Montesa has another chance to get things right.
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Joel Simon is the founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism.