As a young writer and lawyer, my sympathies lie with Rappler’s Maria Ressa and this latest assault to press freedom. In the wake of her arrest for a crime she could not have committed—this time, libel under the Cybercrime Prevention Act of 2012 and the Revised Penal Code—it is becoming more evident that the State has been all too willing to exert its great power to silence critics, with various bodies and agencies facilitating the systematic clampdown on what we know as a free press.

Yesterday, at the Rappler headquarters, Maria Ressa was served a warrant of arrest as courts were closing, making it nearly impossible to post bail.

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IMAGE: Fruhlein Econar

Here’s what we know. First, the alleged crime should have not existed, since the alleged libelous article was published on May 2012, four months before the Cybercrime Prevention Act took effect on September 2012. Nullum crimen nulla poena sine lege, as every first year law student knows: There is no crime without a law prohibiting it. Another basic legal principle: laws generally look forward, not backward.

Second, even if the crime existed, the alleged crime should have prescribed. Article 90 of Revised Penal Code clearly says that for libel and similar offenses, the prescriptive period for filing is one year. For an article published in 2012, Wilfredo Keng filed his complaint too late: he filed it in 2017.

So why resurrect the article? Keng said that crimes of this nature prescribe in 15 years, the basis of which is questionable, since the Revised Penal Code is clear on the prescriptive period of libel and similar offenses. Section 4(c) of the Cybercrime Prevention Act itself readily refers to the Revised Penal Code definition when defining libel as a “content-related offense” under cybercrime. The National Bureau of Investigation (NBI) and the Department of Justice (DOJ) were quick to act, however, on Keng’s basis, backtracking on its earlier dismissal of the case.

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For many journalists, writers, and editors publishing online, an alarming aspect of Ressa’s resurrected case should be the NBI’s theory of “continuing publication”: that because the article was updated in February 2014, and continues to remain online, a “continuing crime” exists until it is taken down. Non-removal, NBI adds, “may be construed as a tacit approval of the contents of the article, or even more, a direct validation or consent to the publication thereof.”

The NBI says this to differentiate online publications versus print, but the statement is nonsensical, and even smacks of gross ignorance of how publications work in today’s digital society.

“Continuing publication” does not exist as a legal doctrine. If allowed to become doctrine, it sets a very dangerous precedent for everyone writing online—not only because it circumvents the non-retroactivity rule in Ressa’s case, but more so because it implies that online libel may be filed not just within a year from publication, but anytime, as long as an article remains on the web. It also makes the unreasonable assumption that non-removal of an article online, even before a Court decision is made, is “tacit approval” of its contents.

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“Continuing publication” itself is an oxymoron. Any media practitioner knows that a single, distinct article may be published only at a certain moment in time, whether print or online.

“Continuing publication” itself is an oxymoron. Any media practitioner knows that a single, distinct article may be published only at a certain moment in time, whether print or online. An article may be edited to reflect changes or may be republished, but it doesn’t mean the specific date of initial publication, the dates changes are made, and the changes themselves cannot be pinpointed with reasonable effort.

In media networks online, if simple typos or errors are corrected or stylistic changes are made, editors sometimes opt not to reflect such changes in an online article. But if there are substantial corrections—involving facts, misquotes, clarifications, and the like—editors are responsible for indicating the changes made and the date of correction.

The mere existence of an article after publication should not be construed as “continuing publication,” if one examines news websites and asks about editorial processes—which should have been easy enough for the NBI to do.

But the ease and fluidity by which articles are published and edited online should not be construed to mean that online content is in a constant state of being made public for the first time. The mere existence of an article after publication should not be construed as “continuing publication,” if one examines news websites and asks about editorial processes—which should have been easy enough for the NBI to do.

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Yet a 2018 CNN Philippines report quoted the NBI—through Chief Manuel Eduarte—saying that under the theory of “continuous publication,” Keng might have only seen the article after the Cybercrime Prevention Act was passed, thus bringing it to the effectivity of the law.

The NBI Chief’s argument is ridiculous, to the point of extreme absurdity. Continued access does not equate to “continued publication.” As mentioned, the flawed logic also implies that online libel is a crime without a prescriptive period or expiry date for filing. What then is the sense of counting the prescriptive period from the date of publication? Or counting a prescriptive period at all? If the NBI used the theory to justify retroactivity, what’s to stop them from applying it to other time-dependent legal arguments?

In short: There are many ways to stretch the NBI’s theory to the point of exploitation, harassment, and abuse, which are all the more apparent with Ressa’s case.

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For sure, Ressa’s case is not the first persecution under the Cybercrime Prevention Act. Cybercrime complaints have been rising. In 2016, libel is the most complained offense, according to the Department of Justice’s latest report.

At the same time, there has been much opposition against the steeper penalties for libel under the Act; its vague provisions in light of modern technology; as well as calls to decriminalize libel and make offenders liable only for damages.

Libel is not protected speech, and determining whether an imputation is libelous or not requires the application of several standards set in law and jurisprudence.

Libel is not protected speech, and determining whether an imputation is libelous or not requires the application of several standards set in law and jurisprudence. The rule is defamatory or libelous imputation is presumed to be malicious, except in cases of privileged communication, which includes “a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their function.” That’s Art. 354(2) of the Revised Penal Code.

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A fair and true report is among the privileged commentaries not covered by the presumption of malice. Constitutionalist Fr. Joaquin Bernas, SJ, in his comprehensive commentary to the 1987 Constitution even says “the privilege applies not only to criticism of public officials but extends to the criticism of a great variety of subjects, and includes matters of public concern, public men, and candidates for office,” referring to the 2008 case of Japan Airlines v. Simangan.

In cases of privileged commentary, such as a fair and true report—which the Rappler article arguably is—the burden is for the complainant to prove actual malice, because the general presumption of malice provided by the law does not apply.

It’s up to the courts to decide that. But of course the law does not operate in a vacuum. Law is a living thing that pervades all of society’s affairs—and that means the NBI’s statements should be seriously considered and if flawed, criticized to the hilt, until the theory loses its already weak footing. Writers and journalists publishing online should be critical, and should all the more exercise only the highest standards of journalism in a landscape marred by fake news and gaps in context. It’s the best defense we have.