What do a law student, housewife, journalist and an atheist have in common? The set-up for a good joke doesn’t deliver when the punchline is that they’ve all been charged with cyber-defamation for using social media. The law student called a city ‘poor, stupid and uncivilised’ on social media site Path, the housewife sent emails to friends complaining about the service she’d received at a hospital, the journalist posted an online article reporting on corruption and the atheist? - Well, he did what atheists often do and questioned the existence of God on Facebook. These stories might be funny, if the people involved weren’t facing harsh sentences under cyber-defamation laws.
Article 27(3) of Indonesia’s Electronic Information and Transaction (‘ITE’) law prohibits the distribution or transmission of electronic information which is defamatory. Persons who commit cyber-defamation are subject to a penalty of up to six years imprisonment and fines of up to one million rupiah (approximately AUD$9600) under Article 45(1) of the ITE laws. Cyber-defamation offences exist in addition to criminal and civil defamation laws in Indonesia.
Articles 310-316 of the Criminal Code establish criminal defamation, which can be reported to and investigated by the police. The penalty is usually up to five years imprisonment, however if an official is defamed in the exercise of their office the penalty can be increased by a third. Whilst normally in criminal proceedings defendants can only be jailed if found guilty, in cyber-defamation cases defendants can be incarcerated pre-trial for up to 50 days.
The only defence to criminal defamation, found in Article 312, is that the statements are true and made in the public interest or out of necessity. Further, if the defence of truth is raised but not made out, the defendant will be liable to a greatly increased penalty for the aggravated offence of ‘calumny’ under Article 311. Importantly there is no explicit distinction between opinion and fact, or between reasonable and unreasonable statements.
You might question whether the right to use social media should be defended? Protecting freedom of expression is important, especially considering Indonesia’s history of authoritarian government. Under Presidents Sukarno (1945-1966) and Suharto (1966-1998) public opinion was suppressed and media was censored. After the fall of the New Order Regime in 1998, restrictions on free speech were relaxed and Indonesia had their first democratic presidential elections in 1999. The following year, the Constitution was amended to enshrine human rights, including the freedom of expression.
Indonesia is now the world’s third largest democracy and freedom of expression remains essential for a functioning democracy. Under Article 28E of the Constitution, Indonesians have the right to freedom of expression, opinion and thought, as well as the ‘right to communicate…using all available channels’ in Article 28F. Recently these channels have greatly expanded and Indonesians are now the fourth biggest users of Facebook globally and the fifth highest users of Twitter.
Since the introduction of the cyber-defamation laws in 2008, over 85 people have been charged. In 36% of cases, the ‘defamed’ complainant was a government official (including accusations of corruption) and 40% of cases were consumer complaints, in which service providers were ‘defamed’. The application of these laws to silence critics has an oppressive tone eerily similar to recent history under Sukarno and Suharto. Criminal and cyber-defamation laws have a ‘chilling’ effect on freedom of expression because of the involvement of the police, significant jail sentences and increasing of punitive severity if the claimant is a government official.
The Constitutional Court reviewed the constitutionality of the Criminal Code provisions in 2008 and ITE provisions in 2009. The role of the Constitutional Court is to decide whether legislation is compliant with, or offends, the Constitution. Rights in the Constitution aren’t absolute and must be balanced against one another. The legislature has the right to pass laws to prioritise some rights over others. The Criminal Code and ITE defamation laws are legislative measures passed to protect the constitutional right to honour and dignity against defamatory attacks, which can result in significant harm to an individual's reputation and even loss of income. Implicitly, these laws limit the constitutional right to freedom of expression. On this basis, the Constitutional Court upheld the constitutionality of the laws.
In these cases, the Court acknowledged that the implementation of the laws had been flawed, however this was not a basis on which the Court could invalidate the laws. The fact that the laws aren’t unconstitutional doesn’t mean that they shouldn’t be reformed. Since reform is the responsibility of the legislature, and not the courts, the Indonesian Parliament must be called upon to amend the criminal and cyber-defamation provisions.
The cyber-defamation laws are described as hukum karet (‘rubber laws’) because of their vague drafting which allows for abuse in their application. It is suggested that these laws need to be amended in a number of ways. As recommended by the United Nations, criminal defamation laws especially those with potential imprisonment should be repealed. Instead, specific civil defamation laws should be drafted. At a minimum, defences need to be broadened and strengthened so that these laws are only able to be applied to individuals who are actually attacking the honour and dignity of others, as opposed to those expressing genuine opinions or constructive criticisms. In their current form, the laws are clearly open to abuse.
Remember the law student mentioned at the start of this article? Florence Sihombing was found guilty of cyber-defamation and sentenced to two months imprisonment, or six months probation, and a fine of 10 million rupiah (approximately AUD$970)…That’s enough to make you think twice before calling someone stupid on Facebook next time you visit Indonesia.