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

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. 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. Criminalizing Defamation = Relegating Free Speech Values ?
Indonesia consider revising its online defamation laws ?
Questions

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. 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. Problematic Provisions (KUHP)
Article 310 (libel
and slander)
Article 311 (false
accusation)
Article 315 (simple
defamation/insult)

7. The “Rubber Provision”
Causes to
be
Accessible
To
Transmit
To
Distribute
Article 27
Section 3 IET Act

9. • “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…”

10. 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?

11. 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

12. 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

13. 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