Libel charges over Malampaya sale ‘weaponized’ – media law expert

A media law professor expressed concern over the recent spate of libel complaints filed by Department of Energy Secretary Alfonso Cusi and business tycoon Dennis Uy against 20 media practitioners across seven news outlets.

Atty. Arlene Roura of the UP College of Mass Communication told TNP that the country’s libel law has been ‘weaponized’ to silence journalists and citizens critical of the administration.

Cusi and Uy filed a series of cyberlibel charges against 20 journalists and media executives starting November 29 last year. These outlets include Rappler, ABS-CBN, Business World, Philstar, Manila Bulletin, GMA News and Business Mirror.

The complainants said that the media practitioners accused them of graft through reports published in their respective news outlets. Cusi and Uy filed their complaints in prosecutor’s offices in Taguig City and Davao City, respectively. The cases are currently under investigation.

The articles reported on the graft charges filed in the Ombudsman on Oct. 19, 2021 against Cusi and Uy for anomalies in the Malampaya gas-to-power project. Secretary Cusi and other DOE employees allegedly conspired to grant Uy’s Udenna Corp. advantage in the public bidding of the Malampaya gas field’s majority shares.

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Uy is one of President Rodrigo Duterte’s closest friends and was a campaign contributor during Duterte’s bid for presidency in 2016.

“Libel has been used as a means for silencing and harassing media and the opposition,” Roura told TNP.

Uy lodged a complaint against ABS-CBN executives Carlo Katigbak and Lynda Jumilla and reporter Anjo Bagaoisan on February 4 over two articles published online. The first article, published on Oct. 19, 2021, was a report on the Ombudsman graft case.

Meanwhile, the second article posted on Oct. 26, 2021 was written by Bagaoisan, who was news editor for TNP. It was an article about a lawyer who called the Malampaya sale the “most incredible crony” deal in history.

In response, the three defendants filed a joint counter affidavit on Feb. 3 urging the dismissal of the libel case for its “false and baseless” accusations.

“[T]he news articles were made and published in the exercise of freedom of the press. We never violated or abused our rights: The news articles are fair, true and accurate reports of a matter of public interest involving a public figure,” they wrote in their counter affidavit. 

Roura said that the ABS-CBN camp presented a defense that could immediately warrant dismissal of the case. However, it would be up to the prosecutor to evaluate the libel charges.

Roura asserted that Philippine law must regard libel as a misconduct instead of a crime, because clearing a defamed name only involves compensation to the injured party. She said there is no point for the public to weigh in on the libel charges.

“It should be a matter settled directly between the two contending parties, rather than having the state get involved in the matter of whether or not a name or reputation has been slandered,” she added.

Roura also said that recent threats against press freedom encourage the use of libel as a weapon to silence the media. Previously, ABS-CBN had their franchise renewal request junked while online news outlet Rappler was questioned by the country’s solicitor general for alleged foreign ownership.

READ: When the Ship Sank: Aftermath of the ABS-CBN Shutdown

“[T]he previous actions against ABS-CBN and Rappler emboldened officials and businessmen to take [the] media to court for libel whenever they see unfavorable news reports about them,” she said.

What counts as libel? 

Generally, cyber libel follows the definition of libel in the Revised Penal Code. The only difference is that cyber libel must be done “in a computer system,” or through a computer or a virtual space.

Libel is attributing any act to a person with the aim of publicly dishonoring, discrediting or holding that person in contempt. 

Accusing someone of a crime, or “defamatory imputation,” is one of the components of libel. Its other components are publication of the libelous material, ill will of the publisher and identifiability of the defamed person.

Bagaoisan argued that he did not accuse Uy of any crime but merely wrote the article completely based on the Ombudsman complaint.

“Uy argued that whatever is being quoted in the news articles automatically become the imputation of the reporter or publisher. This is an absurd position,” the defendants said in their counterclaim.

For a criminal case such as libel to proceed before courts, the investigation of the ruling court must find probable cause for the libelous party to defame. Roura said finding a probable cause for libel against ABS-CBN “will hinge on the prosecutor’s finding of malice in the reporting.”

A probable cause ensures that a charge is well-founded, giving a green light for the prosecutor’s office to review it.

“It is clear that Uy suffered damage to his reputation from the news articles, but it will be an opportunity for the respondents to establish the truthfulness of their reports as well as to bolster the graft complaint filed [to the Ombudsman] versus Uy and Cusi,” Roura added.

Wider calls to decriminalize libel

With hundreds of attacks and threats against Philippine media, several organizations have called to decriminalize libel. 

For instance, editors of Kalinga-based Guru Press Brent Martinez and Ghumie Pnikihan paid P192,000 in bail Aug. 27, 2021 over a cyber libel case filed by Mayor Darwin Estrañero. 

The case was over two articles Guru Press published in July and August 2020 on allegedly overpriced thermal scanners bought by the city administration.

Moreover, local journalist Edito Magpayo faces a libel charge for his 2016 report about mining operations in Surigao del Norte. These mining operations later proved to have proceeded mining without proper permits. 

The National Union of Journalists of the Philippines said in a Jan. 15, 2021 statement calling to decriminalize libel that it is a “long overdue need” as Philippine law is used to intimidate media practitioners rather than seek redress for injury.

“[W]e once again call on Congress to do away with one of the most commonly used weapons against independent journalism by making the decriminalization of libel and cyber libel a priority,” NUJP’s statement read.

The #HoldTheLine coalition, composed of more than 80 groups led by the Committee to Protect Journalists, the International Centre for Journalists and Reporters Without Borders, also called to junk criminal libel in the country.

“Throughout the Philippines, critical journalists are being sent a chilling message: you are only safe in silence,” the coalition wrote in a statement.

Student formations like the CMC Student Council also stressed the need for a collective campaign to defend press freedom and ensure the welfare of media practitioners.

“Sa kasalukuyang political situation natin kung saan tahasan ang pag-atake ng estado sa media, mapa-mainstream, alternative, o campus press man yan, kinakailangan nating depensahan ang critical reportage,” CMC Student Council  Chairperson Kjoy Adriano added.

The ABS-CBN camp now awaits the fate of their articles and of press freedom in the prosecutor courts’ verdict.