As one of the top five social media users worldwide, Indonesians are one of the biggest contributors to information sharing on the internet. Unfortunately, social media users are not only sharing good information, but also negative information. Information posted varies from daily activities to opinions or protests on current government policy.
In 2008, Indonesia issued a Law on Electronic Information and Transactions ("Law No. 11 of 2008"). In Article 27 paragraph 3 in conjunction with Article 45 paragraph 1, and Article 36 in conjunction with Article 51 paragraph 2 Law No. 11 of 2008 has criminal sanctions for defamation on the internet, which is 6 years' imprisonment, or 12 years' imprisonment, if the defamation causes harm or losses to others.
In implementing Law No.11 of 2008, most Indonesian cyber law practitioners and scholars have related such provisions to Article 310 of the Indonesian Criminal Code ("KUHP") specifically Article 310 paragraph 1, which reads:
"Whoever intentionally harms a person's honor or reputation with an accusation about a specific matter with a real intention to publish such accusation shall be sentenced for defamation to nine months of imprisonment and a fine of Rp 4,500."
These are specifically related to the statement of the Constitutional Court in its decision in cases Nos. 50/PUU-VI/2008 and 2/PUU-VII/2009 that the primary/basic law (genus delict) for Article 27 paragraph 3 Law No. 11 of 2008 is Article 310 and 311 KUHP. Furthermore, Article 27 paragraph 3 Law No. 11 of 2008 is not considered an independent legal norm but rather is dependent on other provisions of the criminal law contained in Chapter XVI on defamation (Articles 310-321 KUHP). For this reason the meaning and definition of 'defamation' cannot be interpreted and defined separately differently from the meaning of defamation in Articles 310 and 311 KUHP. v
If the interpretation of Law No. 11 of 2008 on defamation is dependent on this Article 310 KUHP, according to R. Soesilo in his book commenting on the KUHP, reprinted 1995, Article 310 KUHP is interpreted as being only applicable to an individual person as the victim reporting the case of defamation, not to a legal entity or corporation. The reason for this is that only a natural person can feel harmed by defamation.
Such comments could work in an earlier time (when the KUHP was compiled), but not in the internet age we have today. Companies could lose their reputation because of defamation, and then have to lay off their employees. Thus, it has become difficult to understand why the Indonesian legal system is still using the understanding of defamation in the KUHP in understanding defamation as used in Law No. 11 of 2008.
An article on Suara.com "Ini Korban Terjerat UU ITE Sepanjang 2014" (23/02/2015) (The Victims Trapped by The Electronic Information and Transactions Act In 2014) says that from 2008 to February 2015 78 people were caught out by Law No. 11 of 2008. In 2014 alone there were 44 cases under Law No. 11 of 2008. These cases included:
(1) The case of Apung Widadi, who said on his Facebook account "I feel sorry for the U-19 team, whose income from SCTV broadcasting rights worth Rp. 16 Billion was diverted by LNM to finance a fake Persebaya team." Although Apung Widadi did not mention anybody by name in his status, he was still charged with defamation of the Deputy General Chair of the PSSI (the Indonesian Football Association), La Nyalla Mattalitti ("Apung Widadi vs PSSI, Where Will It End?", Kompasiana, 23/4/2014).
(2) The case of Flores Sihombing, a netizen from Yogyakarta who faced 6 years' imprisonment and a fine of 1 billion Rupiah after being reported to the police by Lembaga Swadaya Masyarakat Jangan Khianati Suara Rakyat/JATISURA for defamation under Article 27 paragraph (3) of Law No. 11 of 2008 because she wrote on PATH:
"Jogja miskin, tolol dan tak berbudaya. Teman-teman
Jakarta Bandung jangan mau tinggal di Jogja."
("Jogja is poor, stupid, and uncultured. Friends from Jakarta and Bandung don't stay in Jogja.")
"Orang Jogja B******. Kakak mau beli Pertamax 95
mentang-mentang pake motor harus antri di jalur mobil terus enggak
dilayani. Malah disuruh antri di jalur motor yang stuck panjangnya
gak ketulungan. Diskriminasi. Emangnya aku gak bisa bayar apa. Huh.
("People from Jogja are B******. I (Kakak) wanted to buy Pertamax 95 petrol but I had to keep queuing in the line of cars they didn't want to serve me just because I was on a motorbike. They told me to queue in the really long motorbike line which just wasn't moving. Discrimination. As if I couldn't pay. Huh. KZL.)
(3) The case of Prita Mulyasari who wrote her complaints about treatment in Tangerang Omni International Hospital in a private email which was then published. Decision No. 822 K/Pid.Sus/2010 says that the basis was Police Report No. LP/2260/K/IX/2008/SPK Unit I, dated 5 September 2008, made by Renold Parentino Panjaitan, S.H., as attorney for Dr. Hengky Gosal, Sp. PD and Dr. Grace Hilza Yarlen Neta, the two doctors who treated Prita in the Omni Hospital. The doctors considered they had been defamed by the email written by Prita. This means the report was not made by Tangerang Omni International Hospital even though the caption of Prita's email was 'Penipuan Omni Internasional Hospital Alam Sutera Tangerang' ("Fraud by Omni International Hospital, Alam Sutera, Tangerang").
We can see from the cases mentioned above that when the criminal reports were made to the police before the hearings, they were made by an individual harmed even if the "defamation" was directed against an institution or even a territory. This was intended to be in accordance with the understanding of Articles 310 KUHP and 311 KUHP.
In the future, for a better implementation and interpretation of Indonesian law, hopefully there will be plenty of binding precedents will be created that will see Article 27 paragraph 3 in conjunction with Article 45 paragraph 1, and Article 36 in conjunction with Article 51 paragraph 2 Law No. 11 of 2008 as an independent provision which will cover also defamation of legal entities/corporations.
Article 27 par. 3:
Any Person who knowingly and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with insulting of defamatory contents.
Any Person who knowingly and without authority or unlawfully commits the acts contemplated by Article 27 through Article 34 to other Persons' detriment.
Article 45 par. 1:
Any Person who satisfies the elements contemplated by Article 27 section (1), section (2), section (3), or section (4) shall be sentenced to imprisonment not exceeding 6 (six) years and/or a fine not exceeding Rp1,000,000,000 (one billion rupiah).
Article 51 par. 2:
Any Person who satisfies the elements contemplated by Article 36 shall be sentenced to imprisonment not exceeding 12 (twelve) years and/or a fine not exceeding Rp12,000,000,000 (twelve billion rupiah).
Please also note that negative information shared by traditional media rather than social media will be treated differently, since there is a special law that covers journalistic activities that in certain cases might give immunity to the media concerned.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.