Why NBI theory in complaint against Rappler might lead to a ‘never-ending’ prescriptive period, which could be used to harass journalists and bloggers 

[with additional research
by ELIAS L. ESPINOZA]

Cyber libel is a continuing crime when the libelous article is not removed from the online news site. And a continuing crime does not prescribe until the criminal conduct ceases.

Or so runs the theory of the National Bureau of Investigation (NBI) in filing with prosecutors last March 2 a complaint of cyber libel against Rappler. Even though last February 2018 NBI announced that the complaint of businessman Wilfredo Keng filed with the NBI in December 2017 had already prescribed. NBI later changed its mind, saying it had not yet completed its inquiry when it first ruled.

‘Offensive’ story

Rappler posted a story on May 29, 2012 titled “CJ uses SUV of ‘controversial’ businessman” that said among others that then Supreme Court chief justice Renato Corona used a van owned by Keng when the businessman had in the past been linked to drug trafficking and human smuggling. Rappler updated the story on Feb. 19, 2014.

Note again that Keng’s NBI complaint was filed in December 2017 and NBI’s complaint with prosecutors on March 2, 2018. The postings are way beyond the one-year prescriptive period set by Art. 351 of the Revised Penal Code, as amended by Republic Act 4661.

But no, the NBI says cyber libel is considered a continuing crime and Rappler’s libel has not yet prescribed.

Internet is ‘forever’

The NBI explained: “Definitely, statements online (are)… indubitably considered a continuing crime unless and until the libelous article is actually removed or taken down.”

If the authors of the Anti-Cybercrime Law (Republic Act 10175) intended cyber libel to be a continuing crime, the law would’ve said so. Generally online sites don’t take down content the day after it is posted. A story stays there until it is updated or, in rare instances, removed. Even if the material is struck out at the source of origin, it is already picked up and shared by others and stored somewhere.

 

The NBI apparently uses the nature of internet to argue that cyber is a continuing, or continuous, crime and therefore is not limited by ordinary libel’s one-year prescription. As Black’s Law Dictionary distinguishes ordinary crime from continuing crime, “the statute of limitations begins to run with consummation of the (ordinary) crime while in a continuing crime, it only begins with the cessation of criminal conduct.”

Law on prescription 

Massed against the NBI theory, however, is the fact that RA 4661 which amended the Revised Penal Code (RPC) explicitly sets the prescriptive period of libel at one year. And the Anti-Cybercrime law has not superseded the penal code.
On the contrary, RA 10175, which provides for cyber libel, has tossed almost everything about libel to the RPC: “the unlawful and prohibited acts of libel as defined in Art. 355 of the Revised Penal Code…” What is new in the cyber law provision is just the technology used in defamation: “committed through a computer system on any other means which may be devised in the future…”

Lawmakers’ intent

Had lawmakers of RA 10175 intended to make the prescriptive period for cyber libel different from ordinary libel, it would’ve expressly provided so, as it did in making the penalty for cyber libel one degree higher than that for ordinary libel. Senate Bill 1492, for example, in seeking to penalize fake news, expressly provides that failure, neglect, or refusal to remove fake news or information constitutes a separate offense.

Online libel may be considered by lawmakers or the Supreme Court as a continuing crime. But before they sort it out, it cannot and should not be. The lengthening of its prescriptive period is tortuously implied from the effects of cyber technology.

A basic principle in interpreting laws is that it favors the accused. Silence or ambiguity of RA 10175 shall be interpreted against the state. Given the express provision of the penal code’s one-year prescription, the theory of continuing crime cannot apply.

Effect of penalty

It is also suggested, obviously to boost the NBI stand, that because cyber libel is punishable by an afflictive penalty, its prescriptive period must be 15 years. That argument limps. RA 4661, which amended the penal code, lists prescriptive periods of both libel and afflictive crimes.

Lawmakers separated libel from other crimes. Otherwise, it would’ve lumped libel under the prescriptive period of afflictive penalties.

Facts favor Rappler

Facts of the complaint against Rappler favor the online news site: (a) NBI earlier dismissed the complaint against it, citing the one-year prescriptive period, then reversed itself; (b) the cyber crime law was passed four months after the “offensive” story was posted; (c) the libel complaint, taken with the other assaults against the news organization, shows a pattern of harassment and reprisal.

However the Supreme Court will decide on the Rappler case, it already raises the danger of journalists being oppressed with the use of the continuing crime theory for online content.

A nightmare

When will the statute of limitations cease for digital news and opinion then when materials routinely stay online or, even if deleted, may still be searched for and somehow retrieved?

What would happen to the doctrine of double jeopardy when a complainant that lost by final judgment in his first lawsuit against the writer could resurrect it by claiming continuous publication?

A “never-ending” prescriptive period would be a nightmare not just for mainstream journalists whose work is also published online but for bloggers and anyone else who writes in the internet. (As then Supreme Court justice Antonio Carpio rhetorically asked during oral argument in the litigation over RA 10175, “Everything is now cyber libel, yes?”)

It is plain that the lawmakers need to clarify the anti-crime cyber law and express its real intent about libel being a continuing crime.

[Related article by Seares published in SunStar Cebu, March 10, 2018: “Cyber libel a continuing crime? NBI uses theory against Rappler.” Seares, a lawyer-columnist, taught journalism law and ethics at U.P. Cebu College. Cemla, a group of lawyer-journalists, advises Cebu Citizens-Press Council on legal issues. Espinoza, also a lawyer-columnist, is Cemla president.]