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Online Criminal Defamation and The Chilling Effects on Free Speech in Indonesia

The presentation was a part of my fellowship with AIFIS (American Institute for Indonesian Studies). The presentation was delivered at the webinar co-organized by AIFIS-Faculty of Law University Merdeka Malang, August 10, 2020

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Online Criminal Defamation and The Chilling Effects on Free Speech in Indonesia

  1. 1. Online Criminal Defamation and The Chilling Effects on Free Speech in Indonesia Eka Nugraha Putra SJD Candidate at Indiana University – Maurer School of Law, United States Law Lecturer at University Merdeka Malang, Indonesia AIFIS – Luce Fellow 2019 - 2020
  2. 2. Problems ? • Human Rights Act 1998 • Human Right Case Trial 1999 • Press Act 1999 • Free Expression in Public Space Act 1998 Indonesian Political Reform in 1998 • Articles 310, 311 The Indonesian Criminal Code Act • Information and Electronic Transaction Act (IET) 2008 and 2016 • Rejections on the IET Act’s constitutional review Freedom of Expression Practice • Distinction legislation between offline and online defamation • False facts, opinion, hate speech, criticism, etc? Unclear Definition and Scope
  3. 3. Criminalizing Defamation = Relegating Free Speech Values ? Indonesia consider revising its online defamation laws ? Questions
  4. 4. The Current State of Indonesia’s Free Speech (2019) Indonesian Central Bureau of Statistic (BPS) : Democracy Index is rated at 74.92, while the civil society decreased to 77.20 or 1.26 from 2018 https://www.bps.go.id/website/images/IDI-2019-ind.jpg Freedom House : Indonesia’s freedom index is rated at 62 (partly free), with the civil society rated at 32 (out of 60) and political rights are 30 (out of 40) https://freedomhouse.org/country/indonesia/freedom- world/2019
  5. 5. Online Defamation Provision IET Act 2008 (UU ITE No. 11 2008) • No explanation on Article 27 Section 3 • All of defamation provisions in KUHP ? • Legal entity is not recognized as a legal subject Indonesian Constitutional Court in 2008 (50/PUU-VI/2008) • Extensive regulation for online defamation (“in front public eye”) • Criminal complaint- based Amendment of IET Act in 2016 (UU ITE No. 19 2016) • The deeds are explained • Online defamation is officially criminal complaint based • Prison term from 6 years (2008) to 4 years (2016) • Legal entity is not recognized as a legal subject
  6. 6. Problematic Provisions (KUHP) Article 310 (libel and slander) Article 311 (false accusation) Article 315 (simple defamation/insult)
  7. 7. The “Rubber Provision” Causes to be Accessible To Transmit To Distribute Article 27 Section 3 IET Act
  8. 8. • “The hospital processed a fictional lab result…” • “The people in this city are poor, stupid and uncivilized, anyone should not live here…” • “I suddenly remember the wife of a police officer who has yet to pay my money, amounting to Rp 70 million for years…” • “I have received sad news about the death of common sense in the leadership ranks of engineering school…”
  9. 9. Saiful Mahdi’s case & Febi Nur Amelia’s case • Witness statements differ: "false news", "defamation", ”accusation" • Expert witness: "Defamation" • WA's message offends the Dean = leadership ranks? = The Dean / Campus reputation is tainted? • “The death of common sense" falls into the defamation elements? • Spread WA messages only in groups = “to distribute” and ”to transmit" • Dealing with debts is a private matter, why should the state interfere? (state intervention) • Prosecutor = state attorney, what is the loss in the debt matters between these women ? • IG Story Posts = “to distribute” & “causes to be accessible” ? • What is the loss of the plaintiff?
  10. 10. Indonesia The United States 1. Prita Mulyasari’s case (2008) First Degree Court = Not Guilty; Supreme Court = Guilty (criminal complaint), Judicial Review = Not Guilty 2. Florence’s case (2014) First Degree Court = Guilty; Appellate Court = Not Guilty; Supreme Court = Guilty, probation 3. Saiful Mahdi’s case (2020) First Degree Court = Guilty (To distribute, to transmit); Appelate Court = Guilty (To distribute, to transmit, causes to be accessible) 1. CDA Section 230 “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” 2. New York Times Co. v. Sullivan (1964) “published with knowing falsity or reckless disregard for the truth”. Actual Malice (Public official or public figure); False Statement of Fact (Burden of Proof on the Plaintiff) 3. Gertz v. Robert Welch (1974) Actual malice standard was inappropriate, as Gertz was neither public official nor public figure. For private individuals, states may not impose strict liability on news media 4. Zeran v. AOL (1997) Malicious hoax by anonymous users. AOL was immune under Section 230
  11. 11. No longer free speech in Indonesia ? YLBHI Report 2020: Signs of the Authoritarian Administration PP No. 60/2017 Against UU No. 9 /1998 Telegram Letter Kapolri April 4 2020 Research by Lokataru Foundation 2019: Academic Freedom Funding stopped, Suspension, Drop-out Dismissal and intimidation on student’s events
  12. 12. Preliminary findings & Recommendations • Criminal defamation = harming democracy ? • Overcriminalization = overcapacity in penitentiary • Does offense given or taken ? • Abuse of criminal defamation by the rich and powerful • Repeal of criminal defamation provisions • Using civil defamation provisions

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