296 views | Dr. Binoy Kampmark | June 18, 2020
It has long been said that countries in Southeast Asia take a dim view of the fourth estate. Various legal measures have been deployed against those irritable scribblers over the years: old, colonial-era security legislation; defamation suits; traditional forms of lengthy detention without charge. Such states have mastered the supreme sensibility of their colonial forebears: Maintain the appearance of propriety; inflict the harm under the cover of law.
The Philippines has become something of an exemplar in this regard. According to Joshua Kurlantzick of the Council on Foreign Relations, the country is particularly dangerous, boasting “one of the highest numbers of journalists killed of any country in the world”, with the International Federation of Journalists putting it ahead of, say, Cambodia, “whose overall media climate is more constrained.”
President Rodrigo Duterte’s blustery coming to power in 2016 ushered in a feast of killing, but even prior to this, journalists had good reason to fear for their safety. One particularly sanguinary episode stood out: the November 2009 massacre of 32 journalists in Maguindanao province in the southern Philippines. In total, 58 were butchered, including relatives and supporters of the town mayor Esmael “Toto” Mangudadatu. Mangudadatu had expressed his interest in running for the post of governor against then-governor Andal Ampatuan Sr., whose son, Andal Ampatuan Jr., also had ambitions for office. Mangudadatu tasked his pregnant wife, Genalyn to file the relevant papers for his candidacy. At Ampatuan, the entire crew was ambushed by a hundred armed men in what has been touted as the worst single-day murder of journalists in the country’s history. Andal Ampatuan Jr. already had the culprits in mind: the Moro Islamic Liberation Front. A decade later, a judge in Manila found him guilty, along with several other members of the Ampatuan family, on multiple murder counts.
This might all make the treatment of Ressa seem mild by comparison. On Monday, she was found guilty of cyber libel in connection with a story published on the news site she edits, Rappler. The story had been penned by Rappler journalist Reynaldo Santos Jr, alleging links between businessman Wilfredo Keng and impeached chief justice Renato Corona. Keng had supposedly lent his sports utility vehicle to Corona. The property developer was also said to be under surveillance by the National Security Council for alleged involvement in drug smuggling and human trafficking. Santos was also convicted and, along with Ressa, faces up to six years in prison.
The beastly little instrument used in securing the convictions was the Cybercrime Prevention Act of 2012, though this outcome was achieved in a rather laborious fashion. For one thing, it came into force some months after the original story was filed, though another version of it corrected of typographical error was reposted in 2014.
In 2017, Keng filed a cyber libel complaint over the article in question. The National Bureau of Investigation cybercrime division had little time for it: the complaint had been filed out of time, given the date of the article’s publication. But in 2018, the Department of Justice added a distinct, sharp twist to the saga, extending the life of cyber libel for up to 12 years and filing charges under two statutes, including the Cyber Crime Prevention Act.
The Manila Regional Trial Court Branch found that Rappler had not verified the information on Keng, nor did it publish his side of the story. “The court finds that the subject [article] was republished with reckless disregard of whether it was false or not. This clearly shows actual malice.” While the site was not deemed liable, both Ressa and Santos were ordered to pay 200,000 Philippine pesos in moral damages and another 200,000 pesos in exemplary damages. Keng felt vindicated, citing the standard argument that laws, whatever their content, needed to be obeyed. “Ressa portrays herself as an alleged defender of press freedom and as a purported target of the Philippine government, but this in no way exempts her from respecting and following Philippine laws.”
David Kaye, the UN Special Rapporteur on the right to freedom of opinion and expression, urged the reversal of the verdicts, claiming that “the law used to convict Ms Ressa, and the journalist who authored the article which led to their prosecution, is plainly inconsistent with the Philippines’ obligations under international law”. He also took issue with the Cybercrime Prevention Act, a distinctly harsh instrument designed to chill expression.
The authorities have been getting tetchy with journalists of late. Ressa could already see the warning signs with the closure of television station ABS-CBN. Both have been keen to run a copy on Duterte’s particularly vicious war on drugs and his less than competent handling of the COVID-19 pandemic. Ressa already had an inkling of how grim things would become, managing, in 2015, to obtain a confession from Duterte, then-Mayor of Davao City, that he had killed three people. “When I said I’ll stop criminality, I’ll stop criminality,” he boasted. “If I have to kill you, I’ll kill you. Personally.”
Philippine authorities are particularly preoccupied with prosecuting cases for the charge of “spreading fake news” in connection with the COVID-19 response, the effect of which is to malign any constructive critique of such efforts. In April, the PNP Anti-Cybercrime Group revealed that 24 suspects had been arrested on that charge, ostensibly for using social media portals. Eight were also arrested for spreading false information.
The hope for Ressa and Santos, slim as it might be, lies in the appeals process. Ressa was stoic and reflective at the press conference after the hearing. “Are we going to lose freedom of the press? Will it be death by a thousand cuts, or are we going to hold the line so that we protect the rights that are enshrined in our constitution?” Undeniably, those cuts run deep, a few cuts run deeper to freedom of expression that the laws of libel.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: email@example.com