In a 7-page resolution dated Jan. 10 but received only by parties on Feb. 4, the DOJ ordered for Rappler Inc. and its former reporter Reynaldo Santos to also be indicted for the article published on May 29, 2012, and edited on Feb. 19, 2014.

The DOJ panel–composed of Senior Assistant State Prosecutor Edwin Dayog and Assistant Prosecutors Florencio Dela Cruz Jr. and Jeannette Dacpano—ordered the complaint against Rappler Inc.’s Manuel Ayala, Nico Jose Nolledo, Glenda Gloria, James Bitanga, Felicia Atienza, Dan Alber de Padua

The panel said that based on R.A. No. 3326, which governs the prescription of offenses punished by special laws, such as the cybercrime law, “the prescriptive period of the offense charged is 12 years..”

As for the argument the 2014 publication of the article was covered by a temporary restraining order issued by the Supreme Court on the cybercrime law also at that time, the panel said the TRO “does not render innocent the commission of the act complained of during the period of its effectivity” as it  “merely suspended the implementation” of the cybercrime law “for the duration” of the TRO.

While the panel agreed with Ressa and Santos that the May 29, 2012 publication of the article was not covered by the Cybercrime Act of 2012, or R.A. 10175, which was promulgated only in September of that year, it said “we cannot share the same view with respect to the 19 February 2014 publication” as the “republication of the article as may have been modified, or revised is a distinct and separate offense..”

“Under the ‘multiple publication rule,’ a single defamatory statement, if published several times, gives rise to as many offenses as there are publications,” the panel explained, citing Soriano v. Intermediate Appellate Court.

The panel also debunked the respondents’ argument that, assuming that the offense was committed, they could no longer be charged as more than a year has passed since the publication of the article.

According to the panel, since the crime was committed with the use of information and communication technologies, its penalty is raised to one degree higher than the penalty prescribed for libel, as specified in Section 6 of the Cybercrime Prevention Act.

The panel said “the class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of state” including “communication made in the discharge of duty under express authority of law, or by or to heads of executive departments of the state, and military matters,” while qualifiedly privileged communication, based on the RPC, includes “a private communication made by any person to another in the performance of any legal moral or social duty; a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Also classified as “qualifiedly privileged communication” were “fair commentaries on matters of public interest..,” the panel said.

“Not being within the exceptions, the article complained of is presumed to be malicious,” the panel said.

and Jose Maria Hofilena dismissed as it said there was “no showing of their participation in the commission of the offense or supervision or control over respondent Santos.”

Elements of libel

In ordering the indictment of Ressa, Rappler Inc. and Santos, the panel concluded elements of libel were present in the article, which described Wilfredo Keng as a “controversial” businessman with “shady deals.”

The panel said the article was “clearly defamatory” as it “imputes to complainant Keng the commission of crimes.”

The panel also noted that under Article 354 of the Revised Penal Code, “every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown.”

In this case, the panel said the article does not fall under the categories of “absolutely privileged communication” and “qualifiedly privileged communication,” which it said were exempt from “malice in law.”