A Shady Past? The saga of Rappler’s Maria Ressa continues

By Atty. Rolex T. Suplico

This case has attracted worldwide attention before and after the promulgation of the trial court’s 36-page decision on June 15, 2020. This is because Maria Angelita Ressa was Time magazine’s Person of the Year 2018. No less than Amal Clooney, actor George Clooney’s wife, a famous lawyer in her own right, and Madeleine Albright, former US Secretary of State, came to her defense. After her conviction, Hilary Clinton, former US presidential candidate, who lost to Pres. Donald Trump, and several US senators, added their voices. They all cried press freedom.  But is it really press freedom or is it just a simple case of libel? Read on…

On Feb. 19, 2014, the Rappler website republished an article, originally published in May 29, 2012, entitled: CJ Using SUVs of Controversial Businessman:

“Shady past?

At the time we were tracing the registered owner of the Chevrolet in early 2011, we got hold of an intelligence report that detailed Keng’s past. Prepared in 2020, it described Keng as a “naturalized Filipino citizen” whose exact birthdate is unknown. In the report, he was also identified as bearing the alias “Willy,” using a surname also spelled “Kheng.”

The report stated that Keng had been under surveillance by the National Security Council for alleged involvement in illegal activities, namely “human trafficking and drug smuggling.” He is supposedly close to lawmakers and had contacts with the US embassy at the time.

The document also said Keng was involved in a murder case for which he was “never jailed.” It could be referring to Chika Go in 2002 where Keng had been identified as a mastermind. Go was also the architect of Keng’s Reina Regente condominium residence in Binondo, Manila.

According to a 2002 Philippine Star report, Keng was also accused of smuggling fake cigarettes and granting special residence visas to Chinese nationals for a fee. Keng has denied his involvement in this illegal transaction, saying it’s easy to get visas to the Philippines.”

Aggrieved, Keng filed criminal charges against Reynaldo Santos, Maria Ressa and Rappler, Inc. for cyberlibel punishable under Sec. 4 (c)(4) of Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012, in relation to Art. 353 of the Revised Penal Code. After arraignment, the case was referred to the Philippine Mediation Center. The mediation failed. The case moved to pre-trial. Thereafter, trial proceeded.

The prosecution presented 6 witnesses:

1. Marcelino Malonzo, a retired pensioner, who once worked in a bank, where Keng was a depositor. He said that he saw a news item on TV Patrol, which prompted him to read Rappler. He then called up Keng’s daughter, who confirmed that it indeed referred to her father.
2. SA Christopher M. Paz, Chief, Digital Forensics Laboratory, National Bureau of Investigation (NBI), who confirmed that the article came from Rappler’s website. The prosecution and the defense entered into stipulation on his supposed testimony.
3. Ma. Florina G. Cureg, an analyst in the Philippine Drug Enforcement Agency (PDEA), who dentified 2 certifications issued by the PDEA, based on information gathered from its counterparts.
4. Atty. Leonardo De Vera, who is Keng’s lawyer since 2005. He said that sometime in Aug. 2016, he called up tried to negotiate with Marites Vitug to publish a retraction. Vitug assigned Katerina Francisco. When they met, he told her that Keng had no derogatory record on drugs, had no participation in the Chika Go murder, and had no involvement in human trafficking, cigarette smuggling and tax evasion. She told him that she already prepared an article, which was already with her editors. He said that the negotiation dragged on for 7 months.
5. Katerina Francisco, who said that she was a former researcher for Rappler, Inc. She said she negotiated with Atty. De Vera and that she prepared an article afterwards, which was never published.
6. Wilfredo Keng was the last witness. He said that he is a natural-born Filipino. He said he is a low-key, diligent and self-made entrepreneur. He said Forbes ranked him as one of the Philippines Top 40 Richest individuals. He said the article referred to him. He further added that he is the president of Century Peak Metals Holdings Corp., Century Hua Guang Smelting Inc., Colony Investors (SPV-AMC), Good Earth Plaza, U-Need Shopping Center, Carriedo Plaza and Balikbayan Shopping Mall. He said that a reporter called him up in the closing stages of the Corona Impeachment Trial in 2012, asking why Chief Justice Renato Corona was using his SUV. He denied, saying that Corona returned his car even before the trial began. He said that upon reading the article, he felt shocked, angry and upset. Because of the publication, he said that he felt humiliated and defamed. He said that his wife and 2 daughters had been ridiculed and judged by friends and acquaintances and labeled as associated with drug lords and smugglers. He produced NBI and PDEA clearances, stating that he had no derogatory record. He said that the article had a negative impact on him.

On the other hand, the defense presented 2 witnesses:

1. Atty. Leo Edwin D. Leuterio, who is assigned at the Legal Service Division of the NBI. He submitted a Memorandum containing the legal opinion of the Division.
2. Ma. Rosario F. Hofilena, who said that she is a founder of Rappler and connected with it as a journalist since 2012. She is a senior editor and heads Newsbreak, which handles in-depth and investigative stories of Rappler. She said that newly hired reporters are hired, trained and mentored so they follow the standards of Rappler. She said 2 or 3 editors review a story before its publication. She said Rappler is a news organization. She explained that Ressa is the CEO and the Executive Director and oversees the entire organization. She said that the position of Executive Director is not equivalent to the position of editor-in-chief, as she does not edit stories.  She said that Santos is a researcher and writer in Newsbreak.

The Court ruled that both Santos and Ressa are guilty as charged. The Court enumerated the elements of the crime of cyberlibel:

1. The allegation of a discreditable act or condition concerning another:
2. The publication of the charge;
3. The identity of the person defamed;
4. The existence of malice; and
5. The act must be committed through the use of a computer system or any similar means which may be devised in the future.

1. The first element is present. An allegation, the Court said, is considered defamatory if “it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance, which tends to dishonor or discredit or put him in contempt x x x.” It said that the article imputed the crimes of human trafficking, drug dealing, murder, smuggling of fake cigarettes and the illegal transaction of granting special investors visas to Chinese nationals for a fee.
2. The second element is present. The Court stated that, in libel, “publication means making the defamatory matter, after it s written, known to someone other than the person against whom it has been written. In this case, both prosecution and the defense stipulated that the subject article was published n the website of Rappler, Inc., on 29 May 2012 and was updated on 19 February 2014.”
3. The third element is present. The Court said, “there is no doubt that the article was referring to Wlfredo Keng as he was publicly named therein. Moreover, the corporations mentioned in the article x x x were the same corporations to which Keng is or became president.”
4. The fourth element is present. The Court held that “(m)alice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and justifiable harm. It is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.”
5. The fifth element is present. The Court held that “the libelous act was committed through a computer system considering that during the pre-trial, it was admitted as a fact, by both the prosecution and the defense, that the subject article was published at Rappler’s website.”

The defense advance the theory that “the present action filed by Keng x x x has already prescribed.” It presented an NBI Memorandum, which was identified by Atty. Leuterio. The Court, however, held that this is merely an internal memorandum and that “it is not relevant and does not bind the Court.” The Court then ruled that the crime of cyberlibel prescribes “after TWELVE (12) YEARS following the provision of Section 1 of (Act) 3326.”

The Court noted ”the defense did not present (the two accused) to refute the charge against them. Being the author of the subject article, Accused Santos, Jr. could have proven the veracity of the imputations he made upon the person of Keng by testifying on the basis of the allegations he made on the article. (They)  are both in the best position to testify that the article was published with good motives and for justifiable ends. But as the records of this case show, both accused did not take the witness stand.”

The Court held that the prosecution “failed to prove the corporate liability of Rappler, Inc. under Section 9 of R.A. 10175. The prosecution failed to establish the above-enumerated elements.”

In the dispositive portion of the decision, the Court sentenced both accused “to suffer the indeterminate penalty of imprisonment ranging from SIX (6) MONTHS and ONE (1) DAY of prision correccional as MINIMUM to SIX (6) YEARS of prision correccional as MAXIMUM.” The Court also ordered them to pay Wilfredo Keng  P200,000.00 as moral damages and P200,000.00 as exemplary damages.

The Presiding Judge, Hon. Rainelda Estacio-Montesa, who I think anticipated a national and international backlash on her guilty verdict, wrote:

“THERE IS NO CURTAILMENT OF THE RIGHT TO FREEDOM OF SPEECH AND OF THE PRESS. Each person, journalist or not, has that constitutionally guaranteed right to freely express, write and make known his opinion. But, 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.

“The exercise of a freedom should and must be used with due regard to the freedom of others. As Nelson Mandela said, “for to be free is not merely to cast off one’s chains but to live in a way that respects and enhances the freedom of others.”