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The development of the internet has compelled a
shift in law. In general, the Western democratic system views the defamation law as an attempt to find a balance between an individual’s right to the freedom of expression and the need to protect other people’s reputation.

Different needs in a society imply different standards for its people’s conduct. This article will first discuss the legal framework of defamation in Indonesia concerning electronic communication. Next, readers will be invited to consider whether balance is presently required. Finally, the writer will conclude with an opinion that a shift in law is required.

The Indonesian Criminal Code provides a number of articles concerning defamation. Defamation against individuals is particularly governed in Chapter XVI, which encompasses several criminal acts. The second relevant law is the constitutional guarantee provided in Article 28 of the 1945 Constitution. However, it is necessary to note that constitutional guarantee did not anticipate that any individual with a smartphone can interact with millions of people beyond geographical boundaries, countries, ethnicities, races and religions.

Another provision related to the protection of the freedom of speech is Law Number 39 of 1999 regarding human rights, which governs the right to communicate, disseminate and express opinions in public. Indonesia has also adopted the multilateral agreement called the International Covenant on Civil and Political rights (ICCPr) into Law No. 12 of 2015. Article 19 of the covenant provides that:

  1. Every person has the right to maintain their opinion without harassment;
  2. Every person has the right to the freedom of expression; this right includes the freedom to seek, receive and provide any information or ideas, regardless of limitations, whether verbal, written or printed, in the form of art or through any other media of their choosing.

Despite seemingly ample guarantees to the freedom of expression, surprisingly
the electronic and online communication has completely twisted these guarantees. Let us look more closely at the law concerning uploads on Facebook, Instagram and WhatsApp. It
is reasonable that electronic communication is governed by the Electronic Information and Transactions Law. In particular, defamation using the internet as a medium is specifically provided in Law No. 11 of 2008 and Law No. 19 of 2016 regarding electronic Information and Transactions (“EIT Law”).

Article 27 (3) in connection with Article 45(3) of the EIT Law provides that:

“Any person deliberately and without authorization distributes and/or transmits and/or causes the accessibility of an electronic information and/or electronic document whose content violates ethical norms as referred to in Article 27 paragraph (1) shall be subject to criminal sanction of imprisonment for a maximum of 6 (six) years and/ or fine in a maximum amount of Rp1,000,000,000.- (one billion rupiah).”

The issue is that the implementation of EIT Law has sparked many cases where freedom of expression on the internet winds up in court. Legislators and judges are therefore expected to consider not only the statement in Article 27(3) and find a more balanced approach between the freedom of expression and a person’s right to not be insulted. This can be achieved in two ways.

First, all related parties must observe the Constitutional Court Decision No. 50/PUU-VI/2008. The Constitutional Court was of the opinion that the EIT Law cannot be implemented exclusively; it must be implemented in conjunction with Articles 310 and 311 of the Indonesian Criminal Code. In other words, any violation of the EIT Law must also take into account the defense provided for in the Indonesian Criminal Code.

The Constitutional Court proposed the following reason for its decision:

“Considering that both the house of representatives and
the Experts presented by the Government have explained before the Court hearing that Article 27 paragraph (3) of the eIT Law does not govern legal norms for new crimes, but only affirms the enactment of legal norms for the crime of defamation in the Indonesian Civil Code into a new law due to a special additional element, namely developments in electronic or cyber areas with highly specific characteristics. Therefore, the interpretation of norms contained in Article 27 )3 of the a quo Law concerning defamation and/or slander, is inseparable with the norms of criminal law set forth in Chapter XVI regarding Defamation, as set out in Articles 310 and 311 of the Indonesian Criminal Code, so the constitutional aspect of Article 27 paragraph (3) of the EIT Law must be read in conjunction with Articles 310 and 311 of the Indonesian Criminal Code. This decision is vital and the practitioners must refer to this case when defending a person against the EIT Law.

The second approach is for the legislative body to extend the law by codifying a special defense contained in another system. Some general defense arguments that came across the writer’s mind might help to improve balance in supporting the freedom of expression on the internet. These include justification, qualified privilege and fair comment.

Almost all jurisdictions of the common law shows that defamation is generally associated with untrue claims. When truth is proclaimed, it should be the perfect defense against any claim for defamation, regardless of the fact that a person feels offended after reading it. This is not only about common sense,but also concerns the people’s need for a more transparent and accountable government.

No one can be asked for accountability for disseminating truth. Consequently, an expression of opinion cannot be generally made as a sufficient ground for prosecution. you can choose to agree or disagree with someone’s opinion, but you cannot sue them at court for such an opinion.

Legislators can also turn to qualified privilege as an argument. Qualified privilege protects truthful communication in certain situations. Consequently, qualified privilege even allows insulting comments in certain situations, unless there is an element of malicious intent in creating the upload or comment.

“Malice” generally means that an upload was created on the basis
of some ulterior motives and not a truthful communication. Whether
or not malice is proven, it is the court’s duty to decide so upon consideration of the evidence available. To reiterate, the law can clarify that qualified privilege is not defense when the uploader is aware that the fact in the information uploaded is untrue.

Qualified privilege can be applied among others in a battle of comments about political candidates during an election, the services of a hospital or a general analysis on the services provided.

Situations protected under qualified privilege are too many to list.
Even so, there are some guiding principles that can be used by legislators and courts to determine whether qualified privilege can serve as the basis for defense.

Such matter is important, particularly in communications among people with legal or moral relationship with each other. For instance, giving information to the police about a criminal, or sharing information from a businessman
to another about the character or performance of a former employee.

Legislators also need to consider fair comment as a defense argument. Fair comment defense in common law applies to comments or opinions on matters pertaining to public interest.

In reality, however, comments do not have to be fair. It only takes an opinion, no matter how prejudiced, for a person to honestly maintain.

The aspect protected by fair comment is that uploads or messages must concern public interest. This includes comments about the government, public administration services and public agencies, as well as general criticisms such as about music, performances and movies.

Readers must also understand that uploads constitute opinions and are not facts. Comments must also be based on accurate facts. Similar to qualified privilege, the fair comment defense cannot be applied if a comment is made with malice.

As a final analysis, the general consensus is that the EIT Law requires further revision. The internet is merely a tool, although it is something powerful that can enable every person to easily reach millions of audience.

Communication must undoubtedly be done responsibly. It is acknowledged that every person has the right to protect their character and position in the society. however, balance must be applied. The freedom of expression is a vital right which forms part of the hopes of the Founding Fathers for the entire Indonesian people. It should not be easily muzzled by overly-sensitive claimants who come running to the court every time they find even the most trivial issues on the internet.