Cyber libel

As that statement from the National Press Club and several published commentaries indicate, members of the Philippine media are conflicted over the arrest of Rappler CEO Maria Ressa for cyber libel.

Both Malacañang and the private complainant, businessman William Keng, are standing firm on their statements that President Duterte and his government have nothing to do with the arrest and Maria’s inability to post bail immediately for a bailable offense. They point out that a private individual felt wronged by a media report and took the available legal recourse for redress.

Maria and several media groups, noting the timing of the court indictment and her arrest on top of the other battles Rappler is facing, believe otherwise and see press freedom under threat. Persons or organizations that incur the ire of Duterte do tend to end up in serious trouble: a chief justice was ousted pronto while two senators have been arrested and one is still in detention.

On Rappler’s troubles, the opposing sides are unlikely to change their positions.

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For a broader appreciation of what’s happening, we discussed the issue on “The Chiefs” with former Supreme Court spokesman Theodore Te and cyber crime lawyer Regie Tongol, last Friday on Cignal TV’s One News channel.

Some takeaways from our discussion:

There is no prohibition on serving an arrest warrant after normal government office hours, or at past 5 or 6 p.m. Anyone with a standing arrest warrant can be taken in by the police at any time of the day or night. In fact, Te told us, the arresting officer need not even present the warrant immediately.

He explained that if a cop, for example, spots in Zamboanga someone that he knows has a pending arrest warrant issued in Manila, the cop isn’t going to get the warrant first before arresting the suspect. The warrant can be shown later after the suspect has been taken in.

There are so many arrest warrants pending all over the country, Te pointed out, and it would be impossible for a cop to have a copy of each one in his possession in case he chances upon a suspect. This can be cured by placing such court data in digital format that can be accessed on any smartphone, but our judiciary isn’t there yet despite an ongoing computerization project.

Isn’t there supposed to be a rule that no one should be arrested for a bailable offense after office hours when bail can’t be processed, or on a Friday because the suspect would end up spending the weekend in jail?

There is nothing in the rules of court that says so, Te said. If there is such a rule, he noted, it could be an internal one in the Philippine National Police.

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Being arrested after office hours shouldn’t be too worrisome since there are night courts in several cities all over the country. Even if Maria’s arrest warrant was issued by a regional trial court, Te said the rules allowed the night court, even if it was a metropolitan trial court in Pasay, to process bail for a libel complaint.

Unfortunately for Maria and for all of us citizens, it seems our night courts are useless in the first weeks of the year.

Te explained that night courts were originally set up for foreign tourists, so their cases could be decided quickly with minimal disruption in their travel schedules. Regie Tongol told The Chiefs that even if the night court was open in Pasay last week, this year’s accreditation for those who process bail bonds has not yet been released by the Supreme Court’s Office of the Court Administrator. The list is normally released by mid-February or later in the month, Tongol said.

With no one to process a bail bond, the person arrested can opt for a cash bail. But because cash is involved, Tongol and Te said the cashier’s money processing systems in the lower courts are networked with the Supreme Court. In Maria’s case, it was after office hours, and the one in charge at the SC had probably gone home, Tongol said.

Another problem with night courts, Te notes, is that these are housed in office buildings or complexes operated by local government units. The LGUs pay for the air conditioning, electricity and overtime pay of personnel who must be around while the night court is in operation. And some LGUs are unwilling or unable to foot those additional bills.

We can only speculate on whether the National Bureau of Investigation, which served the arrest warrant on Maria, was aware of such circumstances. Officials of the NBI and its mother agency the Department of Justice have invoked the presumption of regularity in serving the arrest warrant after 5 p.m. on the eve of Valentine’s Day.

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Another takeaway from our discussion on The Chiefs is related to the fact that the arrest warrant was issued for a Rappler report published before the law on cyber libel was enacted, but updated in 2014 when it was already in effect.

In the case of printed news, it’s easier to pursue libel for multiple publications and reprints of the article in question, and to set the prescription period for filing a libel complaint. If a politician, for example, picks up a 20-year-old negative report on a rival and reprints and distributes the article, this is deemed a new publication with a new prescription period.

 Given the nature of the internet, however, stories can be in cyberspace long after we’re all dead. Even items deleted from online publications can linger forever in cyberspace. When do you start computing for the start of the prescription period for cyber libel? Should every update of an article count, even if it is edited only for a typo error or to add a comma or period?

Both Te and Tongol concede that this is a gray area that will eventually have to be settled by the SC, after the lower courts have ruled on the libel case against Maria.

If any jurisprudence that might result from the SC deliberation on the issue is deemed to impinge on freedom of expression and the press, Congress can pass remedial legislation, Te said.

This is a different media environment and cyber libel is a new creature. Those who will rule on the issue must see to it that the legal precedents they set will not be a cause for future national regret.