The Daily IIJ

Although Prita Mulyasari has been freed from all charges, the debates on criminal defamation laws existence in Indonesia still continues.

Prita, a 31 years old house wife was charged with double defamation laws simply because of sending emails to her friends. The emails which complaining mistreatment she accepted from OMNI International hospital in Tangerang, West Java later sent to some mailing lists and sparked anger from the hospital management. They dragged Prita to the court with double defamation laws using KUHP, an old law back from Dutch colonization era and the new law of electronic transaction (UU ITE).

“It’s all about the point of view, that considered criminalization as the most effective instrument to punish all kind of law violation,” Megi Margiono, free expression activist of Aliansi Jurnalis Indonesia (AJI) said.

The point of view unfortunately is common around the world. ARTICLE 19, an international organization of free expression survey revealed that in 2007, at least 94% countries around the world are subjected to laws that human rights defenders the world over have condemned as in appropriate, abusive and misused. 113 countries have special laws offering special protection to the most powerful and privileged figures in public life and only 10 countries around the globe have eliminated criminal defamation laws and a further 9 have done away with imprisonment as a penalty for defamation.

“In some developed and developing countries which have further modern laws, defamation cases are no longer seen as criminal acts, but as inter personal dispute, therefore considered under non criminal laws,” Margiono said.

The debate continues on whether or not using non criminal laws against defamation cases are appropriate. Using non criminalization law allowed defendant to be charged with almost unlimited material compensations, which happened in Soeharto versus Time case with claim of US $ 27 billion or Tommy Winata versus Tempo case with claim of US$ 1 million.

“But at least by using that kind of law, the defendant’s freedom was not raped by being imprisoned,” Margiono said.

For Edmon Makarim, an expert staff of Indonesian information and communication ministry whom part of the team that delivered UU ITE, the debates that expanded national wide trough media seemed has misintepreted the law.

“We made the law (UU ITE) contents simply by following the existed laws,” said him. “The law was created to protect everybody.”

In 2003, the government built UU ITE framework to protect Indonesians especially their banking system from cyber crimes. But later on, in article of 27, the law also criminalized defamation acts spread through electronic device. Makarim said the article was made to give reply rights for the person whom his or her information spread wide through internet.

“The law content substantively was not new, because defamation is different from freedom of expression. Is freedom of expression means you are allowed to mock others? It’s totally different (perspective),” he said.

He said UU ITE has put firewall between freedom of speech and defamation in article 27, by considered only “any person whom has no rights and intentionally” delivered any false information through electronic device as defamation violator. He claimed the law will not treats freedom of press or expressions by excluding any information that published for the sake of public interests or made for self defense.

Though, at the beginning of June 2009 AJI with several NGOs went to Constitution Council, demanding elimination of article 27 UU ITE. The demand failed but will pursue further to the parliament, supported by UNESCO recommendation for all UN members to eliminate criminal defamation laws. Margiono said they are not willing to eliminate all kind of defamation laws and allow Indonesians became barbarians in cyber world, but simply demand defamation to be considered under non criminal laws. So no housewife or other common people have to stay days in jail, waiting to the court to settle their defamation charges.

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Print edition was published in Jurnal Nasional english edition, 6 July 2009