Decriminalizing libel, and other options

It is not to condone a fundamental violation of one of the ethical tenets of the journalism profession, which is to provide a balanced reporting of the news where both sides must be presented. Reynaldo Santos Jr. committed this violation when he wrote an article on May 29, 2012, which Rappler updated and republished on Feb. 19, 2014, containing information derogatory to Wilfredo Keng, a private person, without giving his side of the story. Rappler and Santos had two years to seek out Keng’s side, if only to live up to the tenets of fair and balanced reporting. Unfortunately, the republished article remained as a one-sided piece painting Keng as a “shady businessman.” Obviously, the main purpose of Rappler was not to demolish Keng, as he was just collateral damage. The main target was the late Chief Justice Renato Corona, who was also never given a fair chance in Rappler’s reportage.

There is now an outcry over the libel case against Maria Ressa, Santos and Rappler, claiming that it is a brazen attack on press freedom by the government of President Rodrigo Duterte. This is from a crowd that stood by when Rappler was acting like a demolition team for Noynoy Aquino’s government in its pursuit of Corona, which for all intents and purposes also amounted to an attack on the integrity and neutrality of media, and which in the end also undermined its freedom.

Media freedom is but just a consequence of the basic right of freedom of speech and expression guaranteed by the Constitution. Hence, the move to decriminalize libel should not be seen as countenancing media to freely abuse this right, but as a guarantee that we remain faithful to the Constitution. After all, an examination of the text of the Bill of Rights will reveal that the right to one’s honor is not constitutionally guaranteed compared to the right to life, liberty, property, due process, free exercise of religion and expression. It is already well-accepted that even offensive speech is protected, as long as it doesn’t amount to sedition. A besmirched honor should be remedied not by the threat of imprisoning the one who libels and slanders. As an offense that deals with interpersonal relationships, and is therefore seen as more of an ethical misconduct, the remedy should be in the domain of the Civil Code, and not in the realm of the Penal Code. The people of the Philippines should not be drawn into the legal arena just because the honor of a person is besmirched, slandered or libeled, which is what happens when we treat libel as a criminal offense.

Having said this, however, there must be mechanisms to hold media accountable when they deliberately, and with malice, use their privilege to assault the honor of any person, beyond the mere payment of damages. This is because beyond violating the ethical norm for interpersonal relations of treating each other with prudence and without malice, any journalist who knowingly and maliciously publishes a defamatory and slanderous material also violates the ethics of his profession. Thus, it is about time we consider passing a law to regulate the practice of the journalism profession, where journalists would be held up strictly to their profession’s ethical standards. Any violation of these standards, which would now include libel, could become grounds to suspend or revoke the license to practice, in the same way that a lawyer is suspended or disbarred. This is necessary to ensure that journalists who work for media entities with vast resources will not bank on the largesse of their well-endowed employers to get away with impunity in the event that libel is decriminalized and the associated prison terms are removed.

It is also now timely to pass legislation that would require media entities to provide the right to reply to any person that would be the subject of their expose, or whose honor and name may be adversely affected by any publication. This will ensure that the ethos of responsible communication and journalism will be authentic to the intent of the Constitution, where freedom of speech is no longer just a privilege of media, but also of parties that they may impugn when they exercise that right. It is but responsible practice of the profession that any media entity that publishes derogatory material against anyone in any medium must accord that person space to reply and rebut in the same platform, whether print, broadcast or multimedia.

These proposed media reform legislation will ensure that irresponsible, malicious and unprofessional practices of journalists will not be condoned, even as decriminalization of libel ensures that no one is sent to jail for exercising a constitutionally guaranteed right.

One should go beyond Maria Ressa and Rappler. The crime of cyberlibel for which they now stand accused may please partisans who have ranted against Ressa and her cohorts for abusing press freedom. But one has to be reminded that the implications of cyberlibel on free speech in the internet age are frightening not only for Ressa but for all of us. The theory propounded by the National Bureau of Investigation (NBI) that online libel does not have a prescription period may satisfy Rappler and Ressa haters for now. But these people have to be

- selves at the receiving end of the same doctrine in the future when the political winds shift to a direction hostile to their interests. When that happens, no present will ever be safe from a post in the past that will come back to haunt.