The ITE Law Amendment

President Joko Widodo’s positive response to public criticism of the application of Article 27 Paragraph (3) of Law No.11/ 2008 on Electronic Information and Transactions (ITE), which is seen as a threat to democratic rights in Indonesia, should be appreciated and welcomed.

Although the formulation of the article on insults or defamation in the ITE Law was meant to protect legal interests, the application of the provision should not deny citizens their freedom of expression and opinion.

To this end, it becomes a challenge for lawmakers to produce a regulation that can provide balanced protection for legal interests, covering the interests of individual citizens, the public and the state.

The insulting crime basically constitutes a universal crime. Other countries in the world also criminalize insults or defamation in their national laws. The stipulation in Article 27 Paragraph (3) of the ITE Law defines the acts prohibited: “Anybody who purposely and unlawfully distributes and/or transmits and/or enables the access to electronic information and/or electronic documents with insulting and/or defamatory content”.

The multiple interpretations and extensive application in law enforcement based on Article 27 Paragraph (3) in conjunction with Article 45 Paragraph (1) of the ITE Law have disturbed the sense of justice in society.

Any violation of the provision is liable to a criminal sanction in Article 45 Paragraph (1) of the ITE Law. In its initial application, the provision in Article 27 Paragraph (3) in conjunction with Article 45 Paragraph (1) of the ITE Law already created a legal problem in its practice. The multiple interpretations and extensive application in law enforcement based on Article 27 Paragraph (3) in conjunction with Article 45 Paragraph (1) of the ITE Law have disturbed the sense of justice in society.

Also read: An Opportunity to Revise the ITE Law

For instance, insults or defamation in the ITE Law are qualified by some as an ordinary offense and by others as a complaint offense, a party that is not a victim can file a complaint, a corporation can be a victim of defamation and in several decisions there are sentences for corporate defamation, complaints about insults or defamation are filed despite the absence of public knowledge, and so forth.

The Decision of the Constitutional Court (MK) No.50/PUU-VI/2008 states that Article 27 Paragraph (3) of the ITE Law does not stipulate a new criminal norm, but it only accentuates the validity of the criminal norm of insults in the Penal Code (KUHP), in the new law because of the addition of the specific element, which is the development in the electronic or cyber field with its very special characteristics.

Kompas/Wawan H Prabowo

A mural containing a cry against hoaxes is depicted in the Rawa Panjang area, Bekasi City, West Java, Sunday (28/2/2021).

Therefore, the interpretation of the norm in Article 27 Paragraph (3) of the ITE Law concerning insults and/or defamation is inseparable from the criminal norms contained in Chapter XVI on defamation/libel as stipulated in Articles 310 and 311 of the KUHP. The validity and interpretation of Article 27 Paragraph (3) of the ITE Law are inseparable from the legal norms in Articles 310 and 311 of the KUHP as an offense that requires a complaint (klacht) for its prosecution.

In this way, Article 27 Paragraph (3) of the ITE Law has to be interpreted as an offense that demands the submission of a complaint in order to be taken to court.

First amendment

The MK decision has not settled the legal problem in the application of Article 27 Paragraph (3) in conjunction with Article 45 Paragraph (1) of the ITE Law. Later, on 25 November 2016, Law No.19/2016 on the Amendment to Law No.11/2008 on the ITE was promulgated by amending several articles in Law No.11/2008, including Article 27 Paragraph (3) in conjunction with Article 45 Paragraph (1) of the ITE Law.

The amendment to Article 27 Paragraph (3) in conjunction with Article 45 Paragraph (1) of the ITE Law covers: 1) the formulation of the crime of insults or defamation as a whole involving its elements as well as the criminal sanction in Article 45 Paragraph (3) of Law No.19/2016; 2) a change of the criminal sanction from originally a maximum of six years and/or a maximum fine of Rp1 billion to a maximum of four years in prison and/or a maximum fine of Rp750 million.

Then 3) the formulation that the crime as stipulated in Article 45 Paragraph (3) of Law No.19/2016 is a complaint offense; 4) the formulation in the elucidation of Article 27 Paragraph (1) concerning the definitions of “to distribute”, “to transmit” and “to enable the access”, and 5) the formulation in the elucidation of Article 27 Paragraph (3) stating that the provision in this paragraph refers to that of defamation and/or libel stipulated in the KUHP.

Also read: An Exemplary in Digital Environment

Although Law No.19/2016 has regulated the new norms and interpretation to clarify the provision on insults or defamation, in its application the threat to the freedom of expression and opinion of society continues to be felt. In practice the provision of Article 27 Paragraph (3) in conjunction with Article 45 Ayat (3) of the ITE Law seems to be too easy to be used by people for insult or defamation allegations.

In the formulation of Article 45 Paragraph (3) in conjunction with Article 27 Paragraph (3) of the ITE Law, there remain the criminal elements that provide room for the extensive application the provision on insults of defamation, which are: 1) purposely; 2) transmit; 3) enable the access; and 4) with insulting and/or defamatory content. In the theory of purposefulness, being on purpose has three types of purposefulness: a) purposeful with intent or objective (Opzet als oogmerk); b) purposeful with awareness of certainty (Opzet bij zekerheids-bewustzijn); and c) purposeful with awareness of possibility (Opzet bij mogelijkkheids-bewustzijn).

In this way, the purposeful element can be broadly interpreted to include the awareness of its possible outcome although not intended. Is this purposeful element only meant for the acts of “distributing, transmitting, or enabling the access” alone or also intended to harm somebody’s honor or good reputation as stipulated in Article 310 Paragraph (1) of the KUHP? As it is only formulated for the acts of “distributing, transmitting or enabling the access” and there is no formulation of purposely intending to harm somebody’s honor or good reputation, the purposeful element can be interpreted as being only meant for the acts of “distributing, transmitting or enabling the access”.

Kompas

The Coordinating Minister for Political, Legal and Security Affairs (Menko Polhukam) Mahfud MD, gave directions in a webinar held by PWI entitled "Responding to Changes in the ITE Law", Thursday (25/2/2021).

The word “transmitting” in the elucidation of Article 27 Paragraph (1) of Law No.19/2016 is defined as sending electronic information and/or electronic documents to another party through the electronic system. This meaning can be interpreted as sending electronic information and/or electronic documents to only one person who is not a victim resulting from the interpretation of insults or defamation. The provision of Article 310 Paragraph (1) of the KUHP requires the element: “which is clearly intended to make the matter known by the public”.

In the crime of insults or defamation, the element of being intended to become public knowledge is important because the honor or good reputation of somebody will be downgraded or the victim feel disgraced if known by the public, although the person may later send it to another party.

Likewise, the word “enabling the access” in the elucidation of Article 27 Paragraph (1) of Law No.19/2016 is relatively broadly defined as all other acts besides distribution and transmission through the electronic system that cause electronic information and/or electronic documents to be known by other parties or the public.

Also read: Digital Literacy to Counter Hoaxes

The meaning of all other acts that cause electronic information and/or electronic documents to be known by other parties of the public can be interpreted to include other acts indirectly related to insults or defamation, but causes electronic information and/or electronic documents to be known by other parties or the public. This will have to do with the element of purposely harming the honor or good reputation of somebody.

For the element of “having insulting and/or defamatory content”, its verification should be connected with the provision of Article 310 of the KUHP, as stated in the MK Decision No.50/PUU-VI/2008 and the elucidation of Article 27 Paragraph (3) of Law No.19/2016.

The elements of “purposely harming the honor and good reputation”, “by alleging something” and “which is clearly intended to make the matter known by the public” are important, which should be proven in the application of the provisions on insults or defamation as stipulated in Article 45 Paragraph (3) in conjunction with Article 27 Paragraph (3) of the ITE Law. However, as they are not formulated in Article 45 Paragraph (3) in conjunction with Article 27 Paragraph (3) of the ITE Law they can be differently interpreted and seen as non-criminal elements.

Limitative formulation

For this reason, the amendment to the provisions on insults or defamation in Article 45 Paragraph (3) in conjunction with Article 27 Paragraph (3) of the ITE Law should be formulated in a more limitative way so as to prevent multiple interpretations, extensive application or their use as a means of revenge, while maintaining optimal legal protection for the honor, dignity or good reputation of citizens to steer clear of injustice and uncertainty in law enforcement.

KOMPAS/TATANG MULYANA SINAGA

Young people join the Bandung Anti Hoaks (Bandung Against Hoaxes) declaration organized by the Indonesian Anti-Libel Society (Mafindo) during Car Free Day on Jl. Ir Djuanda, Bandung, West Java, on March 31, 2019 (31/3/2019).

Several things should be considered by the formulation team. First, the provisions on insults or defamation in the ITE Law should only be meant for individuals (natural persons) and exclude corporations or statutory bodies (legal persons). Defamation of corporations or statutory bodies can make use of lawsuits for compensation through the civil law.

In this manner, the element of making it public knowledge is fulfilled in the sense of sending to many people or various parties.

Second, the element of acts that can be committed in insulting or defaming should only concern distribution, in the sense of sending and/or spreading electronic information and/or electronic documents to many people or various parties through the electronic system. In this manner, the element of making it public knowledge is fulfilled in the sense of sending to many people or various parties.

Third, the element of “with the purpose/aim of harming the honor or good reputation of somebody” should be formulated to affirm the presence of mens rea (knowledge of wrongdoing) in insulting or defaming as stipulated in the ITE Law. The type of purposefulness in the first grade, which is “with intent or objective”, is meant to make the limitation of insults or defamation under the ITE Law, meaning only for acts committed “with the purpose/aim” of harming the honor or good reputation of somebody.

Fourth, in the provision on criminal acts the element of “alleging something” should be formulated. This element is important in order to objectively discern that the electronic information or electronic documents sent or spread can downgrade the honor or good reputation of somebody if known by the public. Fifth, the crime of insults or defamation is qualified as a complaint offense, which is one of an absolute nature so that a complaint can only be filed by the victim or party that is harmed.

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Sigid Suseno

Sigid Suseno, Senior Lecturer, Padjadjaran University

(This article was translated by Aris Prawira)