ANALYSIS OF 02/27/2019 CYBER LIBEL COMPLAINT

Since this letter is part of an ongoing legal proceeding, no comments will be provided until all appeals are resolved. Therefore, only the actual document will appear below.

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PRPtrPUC OF THE PHI LTPPINES DRPA ln'MRN'T' OF ,JUSTICE

()FF'lCE OF THE: O:.:.:iTt FR()SECJT::,R .:::1ty o. San Juan

MOTOR IlVIAGE PILIPirTAS, :rnrc. Rep. By GEfU\RDO L'.. RERN.AliDEZ

f:'~mpl'¼.in9.Ilt,

JUWN COHEll Res-pondeur..

[NP5 DOCKET NO. XV-15-INV-19B-00351-00357

Violation of Sec 4[b ][4] of R. A. 10175

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SUBPOENA TO RESPONDENT/s

TO· .TUTif>..N COHEN Tribos. Bs., Villa 6 Subic Free Port Zon e Zsm.bal~~ 2'222

GREETING~:

Und~d by virtue of the authority vested in me by law, you are hereby · :rec:ted to appear beto-re me at the 2nd Floo-r, PN? Bldg., P:i:nagla . ~ coi-ne:r P. Guevari-a t;treet, City of ~an .Juan and to submit

---you:r cou.nte:r-a:ffi.daVlL and othei suporting documenL~ or affi.dm,'its of your witnes ~es, if an~r, to be sv, o.:rn to befo:r~ me on the 22nd and 39th day of March. 701 Q C\-r '). 0 n '~ oc in the tlft(lornoon.!: A.tt~ched ts a copy of the complaint and orner evidence suom1ueci by me com pl ... 1naiu..

You a..:re hereby ·v;rarned that failure on your prut to comply with this subpoena shau be considet"ed as a waiver of your right to present your defense and the case shall be considered submitted. for resoiution based on the ~,i,tp,n ,."" rm f"'"<':on't.

-UIITITES'S Ivf'i H.A iD tbE th d y of March, 201. 9 a+ San . Tus.n City

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Republk ofttie Philippines Department of Justice

NATIONAL PROSECUTION SERVICE Office of the City Prosecutor

City of San Juan

INVESTIGATION DATA FORM

To be accomplished by the Office:

DATE RECEIVED: NPS DOCKET NO_._:.XV-15-INV-19

Time Received: Assigned to: Receiving Staff: __________ _ Date Assigned: __________ _

To be accomplished by complainantlcounsetnaw enforcer: (Use back portion if space is not sufficient)

COMPLAINANT/s: Name, Sex, Age & Address

1:,1}!:;;J'c, ®Jf ~e~~~ RESPONDENT/s: Name, Sex, Age & Address

vCA.uMJ eoH€N ii,<.~ • v..e<id°J.:} tVl

l3'f @Si4, ~ vm,,,, a~ tW3

DATE & TIME of COMMISSION:

to~ {G OcUo/ U/$

1. Has a similar complaint been filed before any other office?* 2. Is this complaint in the nature of a counter-charge?*

PLACE of COMMISSION:

YES . NO /

3. Is this complaint related to another case before this office?* YES= NO /it yes, indicate details below YES _ NO L it yes, indicate details below:

I.S. / NPS Docket No.: _______ _ Handling_ Prosecutor: ____ ··- ·-· _________ ..

C E RT I F I C A T I O N*

I CERTIFY, under oath, that all the infonnation on this sheet are true and correct to the best of my knowledge and belief, that I have not commenced any action or filed any claim involving the same issues in any court, tribunal, or quasi-j icial agency, and that if I should thereafter learn that a similar action has been filed and/or is pending, I shall report that fact to t ·. le Office within five (5) days from knowledge thereof.

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·, ( . ....

REPUBLIC OF THE PHILIPPINES) SAN JUAN CITY ) S.S

COMPLAINT-AFFIDAVIT

I, GERARDO C. HERNANDEZ , of legal age, Filipino, with business address at No. 187 EDSA North Greenhills, San Juan City, after having been duly sworn

in accordance with law, hereby depose and state that:

1. MOTOR IMAGE PILIPINAS, INC. (hereafter "MIPI") is a corporation duly organized and existing under Philippine laws, with

business address at 187 EDSA, San Juan City and is the exclusive importer and distributor of Subaru vehicles within the Philippines. It is likewise the warrantor of all Subaru vehicles imported and sold through authorized dealers within the Philippines;

2. I am the general manager and duly authorized officer of MIPI. (A Secretary's Certificate ?-Uthorizing me to file this Complaint on behalf of MIPI is attached hereto as Annex· "A.")

3. JULIAN COHEN (hereinafter "COHEN") is an American

citizen, of legal age, with residence at Tri boa Bay, Villa 6, Subic Free Port

Zone, Zambales, where he may be served the orders and processes of the Honorable Office of the City Prosecutor;

4. COHEN was the plaintiff in a complaint for damages against MIPI, and other defendants, in Civil Case No. 73836-SJ, filed before the Regional Trial Court Branch 264 of Pasig City.1 The case was filed in 2015. On 16 August 2017, COHEN's Complaint was dismissed for lack of subject matter jurisdiction, as the amount of damages prayed for was less than the jurisdictional amount of the Regional Trial Court (A copy of the Order of dismissal attached as Annex "B 11

). COHEN did not file an

appeal to this dismissal, and thus the same attained finality; ·

5. In retaliation to the dismissal of his first suit, COHEN filed a separate sum of money claim'before the Small Claims Court of Olongapo

City on 18 October 2018. This second Complaint was likewise dismissed (A copy of the Order of dismissal attached as Annex "C 11

);

1 Stationed in City of San Juan

6. Prior to the said second filing, and in the days leading up to

the same, COHEN sought to bring his case to the internet and social media as well; ·

7. On 21 August 2017, an unknown party registered a website domain 11http://neverbuysubaru.com." (A copy of the Whois lookup containing the registration information of the said domain is attached hereto as Annex "D.");

8. By 14 October 2018, the content was published on the neverbuyasubaru.com website showing COHEN to be the website's owner and author. (A full copy of the website is attached hereto in CD

form as Annex "E.");

9. On the "Documents" page of his website2, under the heading

"Introduction and Cast of Characters," COHEN stated:

"Motor Image - A multinational company based in

Singapore. They handle sales and serv[ce of Subaru cars

in many Asian countries. It.is unknown if their warranties

are designed to be worthless d1ue to their own initiative/

or by direct instruction from Subaru. Either way/ Subaru

has stated in no uncertain terms that Motor Image

operates with complete authority for selling and

servicing Subaru cars/ so it really doesn/t matter. For this

reason, I will often refer to Motor Image as Subaru. xxx

XXX

Motor Image Filipinos (sic) - The Philippines subsidiary of

Motor Image. For the purposes here/ the same as Motor

Image// (Emphasis supplied.)

Hence, it may be understood that there was no distinction between MIPI and Subaru Inc. made- in the text of his website or in his videos; COHEN referred to both indiscriminately.

10. On 15 October 2018, COHEN uploaded a video dated 12

October 20183 onto the website "http://neverbuyasubaru.com," in

2 http://neverbuyasubaru.com/index.php/subaru-documents/, Retrieved 03 December 2018 3 The date of the video was explicitly mentioned by the interviewer, a certain '"Maurice Salib," at 0:10

l -..

which he indiscriminately accused MIPI of, among others, denying allegedly valid warranty claims and making false allegations of fact during the litigation of Civil Case No. 73836-SJ. This same video was separately uploaded on the S<?cial media website Facebook.com4 and on the video streaming website Youtube.com5 on the same day. (A copy of the video in CD form is attached hereto as Annex "F.");

11. On 16 October 2018, COHEN uploaded a second undated video, onto the same website, where he repeated the same malicious imputations against MIPI. This same video was separately uploaded on the social media website Facebook.com6 and on the video streaming website Youtube.com 7 on the same day. (A copy of the video in CD form is attached hereto as Annex "G");

12. On 18 October 2018, COHEN uploaded a copy of his Small Claims complaint on ~is website, which complaint, as previously mentioned was likewise dismissed on jurisdictional grounds (Annex "C");

13. Throughout the period of 15 to 18 October 2018, COHEN ' published various defamatory statements against MIPI on his website.

13.1. In general, COHEN alleged that the purpose of MIPI as a corporation was to assist Suhar~ Inc. in illegally avoiding warranty claims, as well as utilizing the legal system to unduly delay the resolution of his Complaint.

13.2. Examples of COHEN's defamatory statements were as follows:

a. "Clearly, Subaru is well aware of the fact that

Motor Image has no intention of honouring their

warranties, XX X" -

b. "For all intents and purposes, Motor Image is

nothing more than a proxy for Subaru."

4 "S years of my life wasted trying to get a Subaru warranty claim approved." Facebook.com. https://www.facebook.com/243922973105SS2/videos/492569S679057Sl/, Retrieved 06 December 2018 5 "NEVERBUYASUBARU.COM Subaru warranty denial." Youtube.com https://www.youtube.com/watch?v=NEmeNaZw2eQ&t=26s, Retrieved 12 December 2018 6 "Subaru Warranty story for the Philippines." Facebook.com. https://www.facebook.com/243922973105SS2/videos/101070893577791S/, Retrieved 06 December 2018 7 "Subaru Warranty." https://www.youtube.com/watch?v=aiAdw2IGNpg, Retrieved 12 December 2018

c. "Here it is claimed that the vehicle was abused (it

was NOT). However, this paragraph does contain the

heart of the matter at hand. Are you required to follow

ridiculous maintenance requirements that are in

complete contradiction to the owner's manual? It is my

contention that according to the law as well as common

sense, you are not. However, Motor Image will attempt

to avoided ( sic) a trial that would decide this one way or

the other. No doubt, they are concerned that a ruling

that their maintenance requirements are illegal would

significantly affect their bottom line."

d. "This is the first step by Motor Image to motion

me into bankruptcy. They want a preliminary hearing for

their special and affirmative defenses. Keep in mind that

each motion results in appearance and other legal fees."

e. "Why then would such a petition be filed?

Obviously for no other reason than to delay the case,

and increase costs, and scare away other potential

lawsuits." . f. "Let's be very olear here. Subaru creates a

complicated network of companies to avoid honoring

their warranties."

g. "Subaru has so perverted the Philippine court

system that no court in the country has jurisdiction over

the crimes they commit and they can continue issuing

worthless warranties without worrying about their day

in court."

13.3. These were all imputations of illegal acts intended to discredit MIPI as the exclusive importer and distributor of Subaru brand vehicles in the Philippines, as well as the warrantor of the same.

14. In the video upl,oaded on 15 October 2018, COHEN made several statements that clearly established his malicious intent, thus:

14:1. At the 1:59 mark, the phrase "It's about me teaching SUBARU

a lesson" displays over the wh_ite background while COHEN says "It's about a company that issues worthless warranties and uses

dummy companies to avoid liability."

14.2. At the 2:26 mark, COHEN stated: "Subaru jerked me around

for 5 years/ so I figure if I can do for 4 days the same to them then

we/re kind of evenn

14.3. COHEN exhibited malice in stating that his motivation for his

publications and his uploading of the videos was revenge for allegedly refusing a purportedly valid warranty claim, and for

allegedly delaying the litigation process.

15. On 28 December 2018, MIPI, through counsel, sent COHEN a letter demanding that he remove the defamatory content from his website . . (Attached to this Complaint is a copy of the demand letter,

' marked as Annex "H.");

16. On 06 February 2019, MIPI received a reply letter from

COHEN, wherein he stated in no uncertain terms that he was refusing to remove the defamatory content from his website. (A copy of this letter is attached hereto as Annex "I.") A portion of his letter read thus:

"All information that I have posted to (sic) my website/

Youtube/ Facebook/ and several online platforms is/ while

certainly detrimental to the reputation of Motor Image,

nothing but the truth. I consider it tny duty as a responsible

resident of the Philippines to warn other consumers of the

fraudulent warranties that are accompanied with the purchase

of Subaru cars. With the amount of work that has been put

into the videos and website, you must obviously know that I

have no intention whatsoever of taking any of my postings

down. x x xn (Emphasis supplied.)

17. Having exhausted all possible avenues towards an amicable end to the continued defamation by COHEN, MIPI was constrained to file this Complaint;

18. To date, the continuing defamation of MIPI by COHEN has

caused the former damage to its reputation and loss of sales amounting to not less than PESOS FIVE MILLION (PHPS,000,000.00) not to mention such other amounts that may still be proven in the course of trial because of COHEN's continuing defamation of MIPI;

\......,'

19. In seeking redress, MIPI was compelled to engage theservices of counsel agreeing to pay the amount of PESOS ONE

HUNDRED THOUSAND (PHPl00,000.00), and PESOS SEVEN

THOUSA.ND (PHP7,000.00) per appearance as and by way of 'attorney's fees.

20. I am executing this Complaint-Affidavit to attest to the truthof the forgoing and to support the c<?mplaint against COHEN for seven (7) separate violations of Sec. 4(b)(4) of Republic Act No. 10175,otherwise known as the Cybercrime Prevention Act of 2012, inrelation to Articles 353 and 35S of the Revised Penal Code, or sevenseparate counts of LIBEL COMMITTED THROUGH A CO�PUTER

SYSTEM.

IN WITNESS WHEREOF, I have hereunto set my hand this _ day of ---J 2019.

0 C. HERNANDEZ Affiant

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SUBSCRIBED AND SWORN to before me this_ daJtFB 2 7 2019,

2019. I hereby certify that I have personaqy examined the affiant and that I am fully satisfied that he voluntarily executed the forgoing Complaint­Affidavit and that he fully understood the contents there

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