In the Philippines, laws intended to combat cybercrime are being used to stifle the free press. The recent arrest of journalist Maria Ressa for cyberlibel demonstrates the growing threat to the archipelago’s democratic institutions.
Journalist Maria Ressa, the CEO and executive editor of Rappler, the Philippines first and most successful online news website, was arrested on 13 February at 5 pm, just when the courts had closed. This meant she would have to stay overnight at the office of the National Bureau of Investigation (NBI) and would only be able to post bail the next day. The appeal of her lawyers to get her out that night was turned down by the judge of a night court despite the existence of provision on the rules of the court giving him the power to grant the request. The secretary of justice then assured everyone that Ressa would be able to leave the NBI office on Valentine’s day as the crime she is being charged with is a bailable offence.
The Philippine Congress passed the Cybercrime Prevention Act (a.k.a. Republic Act No 10175) on 12 September 2012, to deal with an increasing number of online offences. The law’s scope is quite broad – the crimes it has listed include child pornography, identity theft, cybersex, illegal access to data and libel. Journalists had challenged the provision on libel but the Supreme Court ruled the provision was constitutional.
Ressa’s case is being followed closely by lawyers and media groups as its outcome will undoubtedly have significant implications on how online publications can cover controversial issues. Already, there is the problem of when the law had taken effect. Ressa was arrested on the complaint by a businessman who, Rappler reported, had been linked to human trafficking and drug smuggling enterprises in a government intelligence report. Rappler researcher Reynaldo Santos Jr had also cited a Philippine Star report from 2002, where Keng was linked to the murder of a former business associate.
The article was published in May 2012. The cybercrime law, under which Ressa and Santos are being charged, was enacted only in September 2012, or four months after the article was published, and so leading legal experts say it cannot apply retroactively to the Rappler article. Keng filed the libel charge on May 2012, four months before the passage of the law but the Department of Justice ruled that after Rappler updated the report on February 19, 2014, the publication it was now liable to be sued under the law.
It will likely take years even before the lower court will issue a ruling, given how notoriously slow the justice system operates in the country. Then again, in the light of the intense antipathy President Rodrigo Duterte has shown towards Rappler, Justice officials may just appeal to the judge to speed up the process and make a lesson out of Ressa and Rappler (the publication is also being sued for tax evasion and violating a constitutional provision prohibiting foreign ownership of local media). By refusing to allow her lawyers to post bail on 13 February, the judge has already shown bias and the likelihood that she will accede to the government’s request is relatively high. In the Philippines, the power to render judgment rests solely on the presiding judge; the legal system has no jury system – the one provision that the former colony never adopted from American jurisprudence.
Moreover, there is every reason for Duterte to ratchet up his attack. The mid-term elections are fast approaching and in a society regarded as a “world leader in social media,” publications like Rappler will play an essential role in shaping voters’ opinion of those running for office, especially those running for the upper house of the legislature, the Senate. Ressa and her team have kept the public’s attention riveted on the failings of Duterte’s “pet” candidates. It has reported extensively on the repeated fibs of the Marcos’ eldest daughter Imelda (“Imee”) over her undergraduate Ivy League and University of the Philippines law degrees, the corruption of “re-electionists” Senator Ramon Revilla Jr and Jose Pimentel Ejercito Estrada, former police chief Ronaldo de la Rosa’s role in the brutal drug war and the seemingly easy access to government funds by his man Friday, Christopher Go.
The publication has also been critical of Duterte’s performance. There have been several pieces written on the problems his managers face in containing inflation while continuing his predecessor’s relatively successful poverty alleviation programs. Rappler continues to report on Duterte’s phony war on drugs that targets the poor, but not the well-to-do users in Manila’s Golden Ghettos, and allows suspected top drug lords and even politicians to escape prosecution. Duterte has helped reconfirm the publication’s assertion by admitting in public the anti-poor bias of this drug war. One of Rappler’s senior editors has published essential reading on the South China Sea issue. Marites Danguilan Vitug has deftly shown how the accomplishments of President Benigno Aquino III to keep China accountable in the Permanent Court of Arbitration, have been subverted by Duterte’s unqualified support for the territorial claims of China on the South China Sea. Finally, Rappler has been unrelenting in its criticism of Duterte’s unqualified support for the heirs of the late dictator-president Ferdinand Marcos.
In the past, Duterte had aggressively pushed back at Rappler. Its journalists have been barred from being part of the press corps covering the president and he has unleashed some of his foulest diatribes on Ressa and her team. The president has also relied on a social media team that had been after Rappler as far back as the early years of his presidency. Three of his avid defenders – an entertainer, a blogger and a graduate student based in Holland – have successfully whipped up anger and resentment towards Rappler among Duterte’s millions of followers, both within and outside the Philippines. They have been useful as the president’s attack dogs, zealously following up his attacks against Rappler with their vicious asides.
Rappler has effectively deflected these attacks by the talent of its staff. Rappler’s team of young journalists and opinion-makers have endowed the publication with the dynamism and creativity that enables it to reach out to millennials, who in 2016 the became the largest bloc of potential voters. The battle over the millennials’ hearts and minds between Duterte and Rappler is expected to get more heated up come the mid-term elections as only half of these potential voters actually end up going to the election booths.
The government’s adding another legal obstacle to Rappler’s ability to continue what it has been doing is aimed at diminishing its effectiveness as a member of the fourth estate. The case has already caused apprehensions in the media establishment. On February 16, the Philippine Star took down a 2002 article, reporting on Keng’s alleged involvement in the killing of a Manila city councilor, after word reached its owners that Keng was thinking of suing the newspaper. The Philippine Star described this move as a “prudent course of action.
For many middle-aged and -older Filipinos, there is nothing novel here. At the height of his power, President Marcos was quite selective in his use of state violence (the exception being the Muslim separatist resistance in the southern island of Mindanao). The dictator preferred to use “the power of the law” to detain opponents, suppress labor strikes, student demonstrations and rural protest and silence journalists. Duterte has revived a tactic perhaps believing that it worked under Marcos. It did not and in the long-run Marcos had to flee to Hawaii. This lesson has not yet dawned on the current head of state.
Patricio N Abinales is a professor in the School of Pacific and Asian Studies at the University of Hawaii-Manoa and co-author of “State and Society in the Philippines” (Rowman and Littlefield: 2017).
(Disclosure: Patricio N. Abinales contributes to Rappler’s “Thought Leaders” section).
This article is produced under a Creative Commons License and may be republished with attribution.