By Raïssa Robles
Even when the Philippines was a colony under Spain and the US, the prescription period—or length of time within which a libel case has to be filed—never ran beyond two years.
So why and when did the prescription period for libel suddenly become twelve years?
I cannot stress enough the importance of the length of the prescription period for libel not only to journalists but to anyone using social media and the Internet.
After having investigated the matter, I believe the Department of Justice under President Rodrigo Duterte arbitrarily lengthened the prescription period for libel to 12 years by misusing a 93-year-old Philippine law.
If the DOJ interpretation is upheld by the Supreme Court, it means journalists and anyone online can be slapped with libel lawsuits for something they wrote as far back as 12 years.
This interpretation will especially be hard on editors even in print newspapers with online presence because they will be held liable for articles they edited in that period.
How can they defend themselves when they are likely not to recall the actual circumstances behind the publication of, for example, an article which a litigant suddenly claims defamed him nearly 12 years after publication?
An excessively long prescription period will have a very chilling effect on press freedom and journalists.
A lengthy prescription period gives complainants excessive advantage. How many can remember the details of an alleged libelous piece published over a decade ago and kept supporting documents?
There are particular reasons why someone personally offended by something written about him or her has to file a lawsuit within the one year prescription period.
Foremost is that the slur in question is still fresh in the minds of both parties and the claims of both sides can be checked readily.
How did the Duterte government suddenly stretch the prescription period to 12 years?
The Department of Justice dug up a 93-year-old law and paired that with the Cybercrime Prevention Act of 2012.
Before I go any further, let me give you first a brief history of libel laws in the Philippines insofar as prescription periods are concerned. Because knowing this will make you see that what the Duterte government did is not only ridiculous but downright dangerous.
Prescription period for libel in the Philippines: A brief history
For much of the 333 years under Spanish rule, there appeared to be no formal law that defined what we now know as crimes against honor such as “libel”.
It was only on September 4, 1884 that a Royal Decree was issued directing for the first time the publication in Manila of The Código Penal Vigente en las Islas Filipinas. The Código Penal, in short.
I don’t read Spanish so I turned to my brother-in-law, Dr. Alfredo Robles, a retired De la Salle University professor who is an internationally accredited translator from Spanish to English, a history graduate from the University of the Philippines, and who once studied at the Universidad Complutense de Madrid.
I asked him to look up the crime equivalent to libel and the prescription period in The Código Penal. I provided him with an online copy, which you can also look at by clicking on this link –
He found two crimes similar to our modern-day libel: “Calumnia” and “Injuria”.
Art. 452. Es calumnia la falsa imputacion de un delito de los que dan lugar à procedimientos de oficio (a)
Art. 456. Es injuria toda expresion proferida ò accion ejecutada en deshonra, descrédito ò menos-precio de otra persona (a).
He also looked for the prescription periods for both crimes:
Exceptúanse los delitos de calumnia é injuria, de los cuales los primeros se prescribirán al año y los segundos á los seis meses.
He translated this to:
The crimes of calumny and contumely are excepted, the first of which shall prescribe after one year and the second after six months.
In June 1900, the US War Department’s Division of Customs and Insular Affairs published an official translation of the Código Penal, called it The Penal Code and adopted it for Philippine use. You can access an online copy of the Penal Code by clicking here. “Calumnia” was officially translated as calumny and “Injuria” as contumely.
Articles 452 and 456 on these two crimes were translated by the US War Department this way:
Art. 452. Calumny is the false imputation of a crime of those subject to prosecution at the instance of the government (de officio).
Art. 456. Contumely includes every expression pronounced or action executed, with a view to dishonoring or holding up to contempt another person.
The prescription periods were translated this way:
“The crimes of calumny and contumely,,,shall prescribe after one year and the second after six months.”
Feeling that these two crimes were inadequate to cover all aspects of defamation, the Philippine Commission issued Act No. 277 on October 24, 1901 specifically “Defining the Law of Libel and threats to Publish a Libel…”
According to Act No. 277,
A libel is a malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural defects of one who is alive, and thereby expose him to public hatred, contempt, or ridicule.
Act No. 277, however, did not mention any prescription period. We can therefore assume the one-year prescription period in the Penal Code stayed.
This law is available in one local website, lawyerly.ph
However, the text of Act No. 277 is included in a 1903 Supreme Court decision on the libel case filed by the late Benito Legarda, known as US v Dorr. You can view the entire decision by clicking on this link.
How DOJ tied a 93-year-old law to cyber libel
On December 4, 1926, Commonwealth Act 3326 was passed. It was specifically intended “to establish periods of prescription for violations penalized by Special Acts.”
Section 3 of
CA Act no. 3326 defines very clearly what it considers “special laws”. It states:
Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of the law not included in the Penal Code.
Simply put, any law that is not included in the Penal Code is a “special law”.
It would appear then at that time, that Act No. 277 defining the crime of libel was a special law since it was not included in the Penal Code translated from Spanish.
When CA 3326 was approved in 1926, the only Penal Code used in the Philippine Islands was The Código Penal Vigente en las Islas Filipinas, which the US Department of War then translated into English and called the Penal Code.
In 1930, the Penal Code was replaced by Commonwealth Act 3815, which stipulated that “this law shall be known as ‘The Revised Penal Code’.”
This is still in force to this day, although with even many more revisions.
To justify the arrest of journalist Maria Ressa years after the alleged libel, the Department of Justice resolution invoked
CA Act No. 3326 or the 1926 law defining prescription periods of “special laws”.
Problem was, somebody goofed inside DOJ and the law that was cited in the resolution was Republic Act 3326 instead of Commonwealth Act 3326. [See my story—DOJ uses wrong law to justify charging Maria Ressa with cyber libel beyond the one year prescriptive period
Let us assume for now that DOJ meant
CA Act no. 3326. This law tied the length of the prescription period to the length of the jail sentence imposed for crimes in “special laws”.
The DOJ argument goes this way—Republic Act No. 10175, otherwise known as The Cybercrime Prevention Act of 2012, is a “special law” that includes the crime of cyber libel. It slaps a penalty that is one degree higher than what the Revised Penal Code provides. Because of that, the jail sentence for cyber libel can go up to 12 years.
Because the Cybercrime Prevention Act of 2012 is a “special law”, according to the DOJ, the computation of the prescription periods for the crimes under the Cybercrime law should be derived from
CA Act No. 3326.
CA Act No. 3326 provides a prescription period of “after 12 years” for special law crimes punished by six years or more in jail, then cyber libel – which has a jail sentence that could reach 12 years – falls under the 12-year prescription period found in CA Act No. 3326. Therefore, the prescription period for cyber libel is “after 12 years”.
The question over the prescription period of cyber libel was not the subject of Senate floor debates before the passage of the Cybercrime Prevention Act of 2012. No prescription period is cited in this law.
CA Act No. 3326 is the wrong law to use for computing the prescription period of cyber libel
CORRECTION: @Tomas Gomez III has pointed out that the law should be called Act No. 3326 and not CA or Commonwealth Act No. 3326, since the Commonwealth Period only started in 1935. I stand corrected.
If we go by the DOJ argument that
CA Act No. 3326 should be used in Maria Ressa’s case to stretch the prescription period, I believe this is highly idiotic.
CA Act No. 3326 defines special laws as “acts defining and penalizing violations of the law not included in the Penal Code.” In other words, all laws outside the Penal Code.
Using that definition, then we should regard the present “Revised Penal Code” also as a special law since this is outside the Penal Code, as I have shown earlier.
After all, the Revised Penal Code is NOT the Penal Code being referred to in CA 3326. The Penal Code at the time that
CA Act No. 3326 was approved was the English translation of the Código Penal Vigente en las Islas Filipinas of the US War Department.
So this brings us to a totally absurd situation. If the Revised Penal Code is a special law, as defined by CA 3326, then the Revised Penal Code should also be following the prescription periods set by
CA Act No. 3326.
However, the Revised Penal Code most certainly clashes with
CA Act No. 3326 when it comes to the prescription period for libel.
The Revised Penal Code sets very specific prescription periods depending on the years of jail sentence. However, it made a specific exception for the crime of libel.
“The crime of libel or other similar offenses shall prescribe in two years.”
Moreover, on June 18, 1966, Philippine Congress enacted Republic Act No. 4661 which reduced the prescription period to one year:
“The crime of libel or other similar offenses shall prescribe in one year.”
The Revised Penal Code already includes cyber libel
I believe that as far back as 1930 when the Revised Penal Code was approved, lawmakers had already anticipated other forms of committing libel such as cyber libel insofar as the prescription period was concerned because they inserted the phrase “libel or other similar offenses.”
Did the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) set a new prescription period for libel?
Not at all. This law is silent on prescription period.
Because the libel that is mentioned in this law has the same definition already found in the Revised Penal Code.
RA 10175 states that one of the “content-related offenses” is:
“(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.”
As University of the Philippines constitutional law professor Antonio La Vina told me in an interview, cyber libel “is not a new crime” but a new method of committing an existing crime. Because of this, he said, “it’s absolutely wrong for the prescription period to run 12 years.”
What do you think?