Defamation and Privacy Law in
Indonesia
Until now
the Indonesian Criminal Code is still considered to be the prevailing law, even
though there has been several times of efforts for the making of new draft of
the Indonesian Criminal Code. In the draft itself, article concerning
defamation is not considered to be erased. This is now a matter of debate of
the Law Practitioners and Law Academicians in Indonesia, whether it should be
regulated in the Indonesian Criminal Code or only in the Indonesian Civil Code.
Generally
speaking, defamation is the issuance of defamatory statement of certain matter
about another person, which causes that person to suffer harm. The term of
defamation is often used to encompass both libel and slander. Slander is the
making of defamatory statements in oral (spoken). Libel is the making of
defamatory statements in writing. In Indonesia,
defamation is considered to be criminal act as governed by the Indonesian
Criminal Code (Kitab Undang-Undang Hukum Pidana/Wetboek van Strafrecht voor
Nedherland Indie)1. The intention of considering
defamation as criminal act is to protect the right of privacy. Historically,
the Indonesian Criminal Code is a heritage from the Netherlands, and
legitimately prevails in Indonesia on 1st January 1918 through the principle of
concordance (azas konkordansi). As up until now the Indonesian Criminal Code as
a heritage from the Netherlands is still considered to be the prevailing law,
even though there has been several times of efforts for the making of new draft
of the Indonesian Criminal Code. In the draft itself, article concerning
defamation is not considered to be erased. This is now becoming the matters of
debate of the Law Practitioners and Law Academicians in Indonesia, whether it
should be regulated in the Indonesian Criminal Code or only in the Indonesian
Civil Code.
A. Definition and Governing Law of Defamation
1. Indonesian Criminal Code
Defamation in Indonesia is governed by the Indonesian Criminal Code in Chapter XVI concerning defamation2. In order to understand the definition of defamation, we herewith quote articles that govern defamation.
- Article 310 stipulates that:
“(1) The person who intentionally harm someone’s honor or reputation by charging him with a certain matter, with the obvious intent to give publicity thereof, shall, being guilty of defamation, be punished by a maximum imprisonment of nine months or a maximum fine of three hundred rupiahs3 (2) If this takes place by means of writing or portraits disseminated, openly demonstrated or put up, the principal shall, being guilty of libel, be punished with a maximum imprisonment of one year and four months or a maximum fine of three hundred rupiahs4.”
- Article 311 stipulates that:
“ (1) Any person who commits the crime of slander or libel in ease proof of the truth of the charged fact is permitted, (shall if he does not procure said proof and the charge has been made against his better judgment5), being guilty of calumny, be punished by a maximum imprisonment of four years6.”
- Article 315 stipulates that:
“A defamation committed with deliberate intent which does not bear the character of slander or libel, against a person either in public orally or in writing, or in his presence orally or by battery, or by writing delivered or handed over, shall use simple defamation, be punished by a maximum imprisonment of four month and two weeks or a maximum fine of three hundred rupiahs7”
- Article 317 stipulates that:
“(1) Any person who with deliberates intent submits or causes to submit a false charge or information in writing against a certain person to the authorities, whereby the honor or reputation of said person is harmed, shall being guilty of calumnious submission charge, be punished by a maximum imprisonment of four years8.”
- Article 318 stipulates that:
“(1) any person who with deliberate intent by some act falsely cast suspicion upon another person of having committed a punishable act, shall, being guilty of calumnious insinuation, be punished by a maximum imprisonment of four years9.” Based on the above articles, we note that there are several types of defamation:
a. Slander defines as defamation in oral (article 310 (1));
b. Libel defines as defamation in writing (article 310 (2));
c. Calumny defines as libel or slander with certain matter that accused to someone, and while the person who conduct such act acknowledge the certain matter to be untrue (article 311);
d. Simple defamation defines as defamation that is not constitute as libel nor slander (article 315);
e. Calumnious submission (article 317);
f. Calumnious Insinuation (article 318);
2. Indonesian Civil Code
One can not find the definition of defamation in the Indonesian Civil Code. The Indonesian Civil Code only governs the remedies from act of defamation from article 1372 to article 1380. Further information concerning remedies will be mentioned in point E below.
3. Others
In addition, defamation is also governed by Law No. 32 of 2002 concerning Broadcasting and Law No. 11 of 2008 concerning Information and Electronic Transaction10.
B. Limitation or Time Period
The limitation or time period for the offended person to make a civil claim concerning defamation is one year commencing form the day of the act committed and acknowledge by the concerned person. It is governed by Article 1380 of the Indonesian Civil Code which stipulates that “Claim in defamation case shall cease by the expiration date of one year, commencing from the day the act was committed and acknowledge by the plaintiff11”. In Indonesia, to make a criminal claim we should be known that there are two types of claim of offences. First, common offense and second, complaint offense. Claim of defamation is regarded to be complaint offense. Claim of defamation towards a person that concerned to be public officials is regarded as common offense. In this article we only write concerning defamation towards a person that not constitute as public officials. The limitation of time to make a complaint may only be conducted in 6 (six) months commencing from the day the offended party stays in Indonesia while for offended party that stays outside Indonesia, the limitation period of time is 9 (nine) months (Article 74 of the Indonesian Criminal Code). Furthermore, for the prosecution, of which is conducted by the Public Prosecutor12, the limitation or period of time are governed by article 78 paragraph 1 point (2) and (3)13 of the Indonesian Criminal Code, which stipulates that: “(1) The right to prosecute shall lapse by lapse of time: (1)... (2) in six years for the crimes upon fine, custody or imprisonment of not more than three years is imposed; (3) in twelve years for all crimes upon which imprisonment for more than three years…” Therefore the limitations of time for the prosecution are:
a. Slander, which can be punished with a maximum imprisonment of nine months, is 6 years;
b. Libel, which can be with a maximum imprisonment of one year, is 6 years;
c. Calumny, which can be punished by a maximum imprisonment of four years is 12 years
d. Simple defamation, which can be punished by a maximum imprisonment of four month, is 6 years;
e. Calumnious submission, which can be punished by a maximum imprisonment of four years, is 12 years;
f. Calumnious insinuation, which can be punished by a maximum imprisonment of four years, is 12 years.
C. How to Establish The Case and The Burden of Proof
The burden of proof, as in the point of view of defamation as a criminal act is on the General Prosecutors. Thing to be proof are:
- The existence of ‘certain matter’. There is ‘certain matter’ if the said matter accused shows explicit concrete attitude. Moreover, careful examination of the where and when the act took place is not needed to determine such existence 2
- The intention of such act or accusation to be made publicly. It is not defamation but simple defamation if there was no such intention concerned.3
- Verification of ‘certain matter’ that accused may only be permitted in certain circumstances. First, when the Judge consider it to be necessary for considering the Statement of defendant, that the act is committed in the mater of general interest or necessary defense. Second, if a public official is accused of certain matter in conducting his/her duty (article 312 of the Indonesian Criminal Code).
Furthermore, accusing certain matter that considers being true, is still can be deemed as defamation if one who conducts the act is in intention to offend or harm someone.
D. Main Defenses to a Claim
For the defenses of the criminal claim, one can use article 310 (3) of the Indonesian Criminal Code which stipulates that “Neither slander nor libel shall exist as far as the principal obviously has acted in the general interest or for emergency self-defense. The act may be considered as for general interest if that publicity of the certain matter was made in a proper ways. On the other hand, if the certain matter that said in the intention of publicity was conducted in rough ways it cannot be defined as act in the general interest.5 The act may be considered as for emergency self-defense (noodzakelijke verdediging) if the act is made in good and un-excessive ways.6 Both General Interest and emergency self-defenseis permitted to be use even If the ‘certain matter’ that accused is not proven.7 For questions whether an act is considered to be for the general interest or for emergency self-defenseis merely in the authority of Judge’s opinion to decide and not from individual’s subjective opinion.8 The above mentioned content of article is also can be use for defense in civil claim. However, the article to use against is Article 1376 of the Indonesian Civil Code which stipulates that: “The civil claim concerning defamation cannot be granted, if the intention to slander is not obvious. The intention to defamation is deemed does exist, if the defamer obviously does for public interests or emergency self-defense.”
E. Remedies
As has been stated on Point A (2) remedies that a court can award from act of defamation are governed by the Indonesian Civil Code14. The remedies may be in the form of compensation (article 1372 paragraph 1) and satisfaction (article 1373 and 1374). Herein under are the quotations of the articles.
- Article 1372 paragraph 1 stipulates that “The civil claim with regards to defamation is aimed to get compensation of damage and for recovery of honor and good reputation”, and paragraph 2 “In estimating one and the other, the Judge must consider closely the weight of defamation, and so does the rank position and ability of both parties, and the circumstances”.
- Article 1373 paragraph 1 stipulates that “Besides, the degraded party can request that in the judgment also stated that the committed deed is calumnious and insulting”. Paragraph 3 “If requested by the insulted party, the judgment shall be placed in public area, in so many copies and in the places as ordered by the Judge on the insulter expenses”.
- Article 1374 stipulates that “Without prejudice to his liability to pay for compensation, the defendant may prevent the granting of request mentioned in the foregoing article, by offering and actually make statement publicly before the judge containing that he feels sorry for the deed he has committed; that he apologizes therefore, and deems the insulted person as an respectable person”
The claims for the aforementioned remedies are also applied for wife or husband, the parents, the grand-parents, children and grand-children, with regard to the defamation of their husband or wife, children, grandchildren, parents, and grand-parents, after they died (article 1375 of the Indonesian Civil Code). Furthermore the claim for remedies shall cease by the discharge that explicitly or silently declared, if, after the defamer and acknowledged by the offended, by this person is conducted deeds that manifest the reconciliation or forgiveness, which is in contradict to the intention to claim for compensation or recovery of honor (article 1378 of the Indonesian Civil Code). In specific the right to claim for damage compensation as mentioned in article 1372 shall not cease by the death of the offended person (article 1379 of the Indonesian Civil Code). Moreover, this civil claim cannot be granted if the insulted party by a Judge decision which has absolute binding has been declared guilty to commit the deed accused to him (article 1377 of the Indonesian Civil Code). Nothing in the Indonesian Civil Code provisions limits the amount of compensation awardable in defamation actions.
A. Definition and Governing Law of Defamation
1. Indonesian Criminal Code
Defamation in Indonesia is governed by the Indonesian Criminal Code in Chapter XVI concerning defamation2. In order to understand the definition of defamation, we herewith quote articles that govern defamation.
- Article 310 stipulates that:
“(1) The person who intentionally harm someone’s honor or reputation by charging him with a certain matter, with the obvious intent to give publicity thereof, shall, being guilty of defamation, be punished by a maximum imprisonment of nine months or a maximum fine of three hundred rupiahs3 (2) If this takes place by means of writing or portraits disseminated, openly demonstrated or put up, the principal shall, being guilty of libel, be punished with a maximum imprisonment of one year and four months or a maximum fine of three hundred rupiahs4.”
- Article 311 stipulates that:
“ (1) Any person who commits the crime of slander or libel in ease proof of the truth of the charged fact is permitted, (shall if he does not procure said proof and the charge has been made against his better judgment5), being guilty of calumny, be punished by a maximum imprisonment of four years6.”
- Article 315 stipulates that:
“A defamation committed with deliberate intent which does not bear the character of slander or libel, against a person either in public orally or in writing, or in his presence orally or by battery, or by writing delivered or handed over, shall use simple defamation, be punished by a maximum imprisonment of four month and two weeks or a maximum fine of three hundred rupiahs7”
- Article 317 stipulates that:
“(1) Any person who with deliberates intent submits or causes to submit a false charge or information in writing against a certain person to the authorities, whereby the honor or reputation of said person is harmed, shall being guilty of calumnious submission charge, be punished by a maximum imprisonment of four years8.”
- Article 318 stipulates that:
“(1) any person who with deliberate intent by some act falsely cast suspicion upon another person of having committed a punishable act, shall, being guilty of calumnious insinuation, be punished by a maximum imprisonment of four years9.” Based on the above articles, we note that there are several types of defamation:
a. Slander defines as defamation in oral (article 310 (1));
b. Libel defines as defamation in writing (article 310 (2));
c. Calumny defines as libel or slander with certain matter that accused to someone, and while the person who conduct such act acknowledge the certain matter to be untrue (article 311);
d. Simple defamation defines as defamation that is not constitute as libel nor slander (article 315);
e. Calumnious submission (article 317);
f. Calumnious Insinuation (article 318);
2. Indonesian Civil Code
One can not find the definition of defamation in the Indonesian Civil Code. The Indonesian Civil Code only governs the remedies from act of defamation from article 1372 to article 1380. Further information concerning remedies will be mentioned in point E below.
3. Others
In addition, defamation is also governed by Law No. 32 of 2002 concerning Broadcasting and Law No. 11 of 2008 concerning Information and Electronic Transaction10.
B. Limitation or Time Period
The limitation or time period for the offended person to make a civil claim concerning defamation is one year commencing form the day of the act committed and acknowledge by the concerned person. It is governed by Article 1380 of the Indonesian Civil Code which stipulates that “Claim in defamation case shall cease by the expiration date of one year, commencing from the day the act was committed and acknowledge by the plaintiff11”. In Indonesia, to make a criminal claim we should be known that there are two types of claim of offences. First, common offense and second, complaint offense. Claim of defamation is regarded to be complaint offense. Claim of defamation towards a person that concerned to be public officials is regarded as common offense. In this article we only write concerning defamation towards a person that not constitute as public officials. The limitation of time to make a complaint may only be conducted in 6 (six) months commencing from the day the offended party stays in Indonesia while for offended party that stays outside Indonesia, the limitation period of time is 9 (nine) months (Article 74 of the Indonesian Criminal Code). Furthermore, for the prosecution, of which is conducted by the Public Prosecutor12, the limitation or period of time are governed by article 78 paragraph 1 point (2) and (3)13 of the Indonesian Criminal Code, which stipulates that: “(1) The right to prosecute shall lapse by lapse of time: (1)... (2) in six years for the crimes upon fine, custody or imprisonment of not more than three years is imposed; (3) in twelve years for all crimes upon which imprisonment for more than three years…” Therefore the limitations of time for the prosecution are:
a. Slander, which can be punished with a maximum imprisonment of nine months, is 6 years;
b. Libel, which can be with a maximum imprisonment of one year, is 6 years;
c. Calumny, which can be punished by a maximum imprisonment of four years is 12 years
d. Simple defamation, which can be punished by a maximum imprisonment of four month, is 6 years;
e. Calumnious submission, which can be punished by a maximum imprisonment of four years, is 12 years;
f. Calumnious insinuation, which can be punished by a maximum imprisonment of four years, is 12 years.
C. How to Establish The Case and The Burden of Proof
The burden of proof, as in the point of view of defamation as a criminal act is on the General Prosecutors. Thing to be proof are:
- The existence of ‘certain matter’. There is ‘certain matter’ if the said matter accused shows explicit concrete attitude. Moreover, careful examination of the where and when the act took place is not needed to determine such existence 2
- The intention of such act or accusation to be made publicly. It is not defamation but simple defamation if there was no such intention concerned.3
- Verification of ‘certain matter’ that accused may only be permitted in certain circumstances. First, when the Judge consider it to be necessary for considering the Statement of defendant, that the act is committed in the mater of general interest or necessary defense. Second, if a public official is accused of certain matter in conducting his/her duty (article 312 of the Indonesian Criminal Code).
Furthermore, accusing certain matter that considers being true, is still can be deemed as defamation if one who conducts the act is in intention to offend or harm someone.
D. Main Defenses to a Claim
For the defenses of the criminal claim, one can use article 310 (3) of the Indonesian Criminal Code which stipulates that “Neither slander nor libel shall exist as far as the principal obviously has acted in the general interest or for emergency self-defense. The act may be considered as for general interest if that publicity of the certain matter was made in a proper ways. On the other hand, if the certain matter that said in the intention of publicity was conducted in rough ways it cannot be defined as act in the general interest.5 The act may be considered as for emergency self-defense (noodzakelijke verdediging) if the act is made in good and un-excessive ways.6 Both General Interest and emergency self-defenseis permitted to be use even If the ‘certain matter’ that accused is not proven.7 For questions whether an act is considered to be for the general interest or for emergency self-defenseis merely in the authority of Judge’s opinion to decide and not from individual’s subjective opinion.8 The above mentioned content of article is also can be use for defense in civil claim. However, the article to use against is Article 1376 of the Indonesian Civil Code which stipulates that: “The civil claim concerning defamation cannot be granted, if the intention to slander is not obvious. The intention to defamation is deemed does exist, if the defamer obviously does for public interests or emergency self-defense.”
E. Remedies
As has been stated on Point A (2) remedies that a court can award from act of defamation are governed by the Indonesian Civil Code14. The remedies may be in the form of compensation (article 1372 paragraph 1) and satisfaction (article 1373 and 1374). Herein under are the quotations of the articles.
- Article 1372 paragraph 1 stipulates that “The civil claim with regards to defamation is aimed to get compensation of damage and for recovery of honor and good reputation”, and paragraph 2 “In estimating one and the other, the Judge must consider closely the weight of defamation, and so does the rank position and ability of both parties, and the circumstances”.
- Article 1373 paragraph 1 stipulates that “Besides, the degraded party can request that in the judgment also stated that the committed deed is calumnious and insulting”. Paragraph 3 “If requested by the insulted party, the judgment shall be placed in public area, in so many copies and in the places as ordered by the Judge on the insulter expenses”.
- Article 1374 stipulates that “Without prejudice to his liability to pay for compensation, the defendant may prevent the granting of request mentioned in the foregoing article, by offering and actually make statement publicly before the judge containing that he feels sorry for the deed he has committed; that he apologizes therefore, and deems the insulted person as an respectable person”
The claims for the aforementioned remedies are also applied for wife or husband, the parents, the grand-parents, children and grand-children, with regard to the defamation of their husband or wife, children, grandchildren, parents, and grand-parents, after they died (article 1375 of the Indonesian Civil Code). Furthermore the claim for remedies shall cease by the discharge that explicitly or silently declared, if, after the defamer and acknowledged by the offended, by this person is conducted deeds that manifest the reconciliation or forgiveness, which is in contradict to the intention to claim for compensation or recovery of honor (article 1378 of the Indonesian Civil Code). In specific the right to claim for damage compensation as mentioned in article 1372 shall not cease by the death of the offended person (article 1379 of the Indonesian Civil Code). Moreover, this civil claim cannot be granted if the insulted party by a Judge decision which has absolute binding has been declared guilty to commit the deed accused to him (article 1377 of the Indonesian Civil Code). Nothing in the Indonesian Civil Code provisions limits the amount of compensation awardable in defamation actions.
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