In late March, two Indonesian activists, Haris Azhar and Fatia Maulidiyanti, were named suspects in a defamation case under Law No. 19 of 2016 on Information and Electronic Transactions (the so-called ITE Law).
The controversial allegations of defamation were brought by Coordinating Minister for Maritime Affairs and Investment Luhut Binsar Pandjaitan over a YouTube video, in which the two activists discussed alleged connections between mining businesses and military operations in Papua. They claimed Luhut was implicated as a shareholder of one of the companies operating in the region.
Luhut has said he took the activists’ discussion personally and launched the defamation action to defend his name, and that of his children and grandchildren (although given the activists did not mention his children or grandchildren, it is hard to see how they suffered reputational harm).
In any case, the fact that police investigators have decided to proceed with the case and formally name the activists as suspects raises questions about what kind of reputational harm Luhut has experienced from a statement that appears to have been made in reference to his position as a public official. It also raises questions about whether the ITE Law’s defamation provisions should be amended or even repealed.
Before the ITE Law was passed, criminal defamation was already regulated under Article 310 of the Criminal Code (KUHP), which makes it an offence to “intentionally damage the reputation or honour of a person by alleging a certain fact, with the clear intention of making that fact publicly known”. This Article also clearly states that an allegation will not be considered defamatory if made in the public interest (Article 310(3)).
When the ITE Law was first passed in 2008, it was criticised for overlapping with these provisions of the KUHP. Article 27(3) of the ITE Law prohibits any person from “intentionally distributing, transmitting, or making accessible electronic information and/or documents that contain insulting or defamatory content”.
Concern about the potentially broad application of Article 27(3) also led a group of media freedom activists to challenge the provision in the Constitutional Court in 2008. Although the Court ruled that the provision was constitutional, it did attempt to provide further clarity around Article 27(3).
Specifically, the Court said that the ITE Law did not introduce a new criminal offence but was simply adding a new element (online defamation) to “offline” defamation under the Criminal Code. As such, the Constitutional Court stated, the constitutionality of Article 27(3) is connected to KUHP Articles 310 and 311 (on defamation). Because of this, Article 27(3) should be understood as a complaint offence (delik aduan), the court said, meaning that charges can only be brought if the individual allegedly defamed makes a complaint to police.
This standard was then adopted formally when the ITE Law was amended eight years later, in 2016. An explanation was added to Article 27(3) stating that the provisions of the article refer to provisions on defamation in the KUHP. In theory, this should also include the public interest defence in Article 310(3) of KUHP.
Despite the Court’s efforts, a massive spike in online defamation cases relying on Article 27(3) over the past few years has triggered growing calls for reform of the ITE Law. In February 2021, President Joko “Jokowi” Widodo even called on the National Police to be more selective in processing cases under the law. He said that if the law could not be implemented fairly, the government would ask the national legislature (DPR) to revise the law to revoke articles prone to multiple interpretations, such as Article 27(3).
In 2021, the Ministry of Communications and Information, the Attorney General and the National Police Chief also sought to modify how Article 27(3) is used, issuing a joint decision on guidelines for its implementation. These were intended to provide further clarity for law enforcers for investigating online crimes under the ITE Law. The guidelines state that assessment, opinions, evaluations or facts should not be considered defamation. But they still fail to provide sufficient clarity about the public interest defence.
In any case, the guidelines are not a legal product and are not legally binding. Put simply, they are guidelines. They do not change the provisions of the ITE Law and judges are not required to follow them when deciding ITE Law cases.
This means it ultimately it is up to judges to decide whether the public interest defence holds. The court must weigh the public’s right to know against the defamatory nature of the statement in question. But considering that most defamation cases are brought by powerful public officials, and Indonesian courts often come down on the side of the powerful, it seems unlikely that Haris and Fatia will have much success arguing that they made their statements in the public interest.
Ideally, the ITE Law should be revised and all criminal provisions on defamation removed. But many past attempts to repeal provisions of the ITE Law have failed. Given that the recently issued guidelines are not legally binding, the most feasible approach is to formulate a clear legal standard for the public interest defence, and include it in the body of the ITE Law, the amendment of which is now on the priority list of bills for deliberation by the national legislature this year.
Other countries apply public interest guidelines in defamation cases. For example, the United States has an “actual malice” legal standard, which states that public officials cannot win a defamation lawsuit without proving that the defendant acted with actual malice. The United Kingdom’s Defamation Act 2013, meanwhile, includes “public interest” as a recognised defence.
Indonesia could adopt a similar principle and include it in the Elucidation to the revised ITE Law. The section could include a list of public interest factors, such as the seriousness of the allegation, the extent to which the information is a matter of public concern, the source of the information, and the urgency of the matter. The list could even go so far as to describe what is considered protected speech and what is unprotected speech.
Another step that could be taken is to apply the so-called “Opportunity Principle” to matters in the public interest at the stage when indictments are first filed with the prosecution. The Opportunity Principle provides prosecutors with the authority to cancel the prosecution of a case if its prosecution is not “opportune”. Law No. 11 of 2021 on Prosecution recognises the Opportunity Principle by providing the attorney general with the authority to cancel cases in the public interest (Article 35(1)(c)). A similar principle is also described in Article 14 of the Indonesian Criminal Procedure Code (KUHAP), which states that prosecutors can close cases “in the interests of the law”.
One problem is that use of the Opportunity Principle for matters in the public interest is the sole authority of the attorney general him or herself. This means that prosecutors in the first-instance district courts (pengadilan umum) and appeal courts (pengadilan tinggi) have no authority to cancel the prosecution of cases in the public interest.
Prosecutors in the lower levels of the Prosecutor’s Office should also be provided with the authority to cancel cases in the public interest, and detailed parameters issued to help them make these determinations. Unfortunately, this would also require amending Law No. 11 of 2021 on Prosecution, or the KUHAP, neither of which appears likely in the short term.
The Indonesian Constitution recognises free speech as a fundamental right. But criminal defamation law, in particular the ITE Law, is having a disastrous “chilling effect” on freedom of expression in the country. Recent survey data found that 62.9% of Indonesians said that they were fearful of expressing their opinions.
In fact, growing restrictions on freedom of expression are among the key reasons Indonesia has seen its ranking slide in indexes of democratic quality over recent years. Formally recognising a strong defence of public interest in defamation cases would be a small step toward reversing this trend.