LIBEL IN INDONESIA
By Akhmad Kusaeni
Against the backdrop of Indonesia’s young democracy, the Central Jakarta District Court on 16 September 2004 sentenced Tempo chief editor Bambang Harymurti to one year in jail for libel against business tycoon Tomy Winata.
The judge ruled that based on the Criminal Code, the magazine was guilty of defamation and inciting unrest by disseminating lies through its article Is Tomy in Tenabang?. The article appeared in Tempo on 3 March 2003 citing allegations that Tomy may have been behind a fire that gutted 5,500 kiosks in Tenabang, the Jakarta’s Southeast Asia textile market.
Bambang is the first journalist in the country to be sent to prison for something he issued in the post-Soeharto era. Soeharto regime imprisoned some journalists in the early years of his presidency in the 1970s, and later in the 1990s. Soekarno, Indonesia’s first president sent some prominent journalist to prison in the 1950s. Most of them were found guilty of libel and defamation.
For Indonesia, the laws that control libel first began to take shape even before the country got independence on 17 August 1945. Ki Hajar Dewantoro, one of Indonesia founding fathers, had to stay in jail because what he wrote in De Express daily on 20 July 1913. Dewantoro criticized the Dutch government for celebrating independence in its colony, Indonesia.
Today, the Indonesian press is one of the freest in South-East Asia. This country also has one of the most liberal press laws in Asia, but the ancient Criminal Code inherited from Dutch colonial era continues to have several articles that allow journalists to be imprisoned for their views. The government still did not make any commitment to reform this code.
Media workers and organizations have strongly denounced the way in which the Criminal Code is being used against journalists and publications. The Press Council underlined that the use of the Criminal Code had threatened freedom of the press, while the press freedom was characteristic of democracy.
“The application of ancient criminal laws instills a fear of publishing good reporting,” said senior journalist Goenawan Mohamad.
There is a strong desire to decriminalize libel in Indonesia. Media people argued that the future of a free press was extremely dim in Indonesia if the criminal law continued to be used against the media. By applying libel laws with criminal penalties that date from the Dutch colonial period, Indonesia was muzzling the press.
There is a need to revise the Press Law 40/1999. The current Press Law only deals with violations of social norms, religious norms, and presumption of innocence. It does not give any punishment on coverage or story that insult and tarnish one’s reputation. As a result, law officials resort to Criminal Code to try press crime committed by the media and journalists. The Press Law is then ignored.
This paper will discuss the history of libel cases in Indonesia and the need to have a new regulation that guarantee the freedom of the press and fulfill the public sense of justice. In order to be more logical and readable, the discussion will be structured as follows:
A. Libel in the pre-independence Indonesia.
B. Libel in the post-independence Indonesia.
C. Libel in the today Indonesia.
D. Decriminalizing of Libel and Revising the Press Law
A. Libel in the pre-independence Indonesia
Ki Hajar Dewantoro, one of Indonesia founding fathers, had to stay in jail because what he wrote. In De Express daily on 20 July 1913, Dewantoro wrote article “Als Ik, een Nederlander was” or If I am the Dutch Citizen.
He criticized the Dutch government for celebrating independence in Indonesia. “It is not appropriate for the Dutch to have fiesta here in its colony,” wrote Dewantoro.
The colonial court found him guilty of libel and spreading hatred against the government. The judges sent Dewantoro to several months in jail.
Another important libel case in pre-independence was involved KENG PO daily. It was in 1938 when the Dutch and her colonies were eagerly awaiting the birth of Beatrix, the present queen of Holand, daughter of Princess Juliana and Prince Bernhard, and granddaughter of the then Queen Wilhelmina.
Feasts are being prepared hectically everywhere. There was rejoice in the tropical colonies, except in Pandeglang, West Java. There, for the big feast, the Regent himself had instructed the erection of bamboo stalls, roofs, constructions, fences and tents. Bamboo and labor were requisitioned from people with no compensation.
Some families, close to tears, apparently told correspondents of the daily KENG PO. On 4 January 1938 the newspaper appeared with an item headed “For the Attention of the Resident in Pandeglang”. The gist of the article is that the Regent should not mar the celebrations by bringing more misery to ordinary people who do not dare to complaint about the fate that is befalling them.
The court on 29 November 1938 determined that the defamation was directed more against to the authority rather than the person of the Regent. Therefore, punishment to KENG PO daily was increased. The newspaper was guilty to insult not only a person (Regent of Pandeglang), but also the authority of the government of the East Indies.
Before the country got its independence on 17 August 1945, the Indonesian media must run a gauntlet of restrictive colonial era laws. Officials, state apparatus, and powerful business were routinely bringing libel charges against journalists, forcing them to face of jail time. Here are some cases.
A police detective in Palembang, South Sumatra Province, got drunk in a bar. He started quarreling with his wife who was jolly drunk as well. They were shouting angry words at each other, and pulling each other’s clothes. The very same police detective was later found quarreling and using bad words with women whose profession seemed to be serving at the pleasure of men.
Pertja Selatan, a newspaper published in Palembang took up what it considered fit to print under the sober heading “Ada apa? Tengah Malam Membikin Riboet?”. (What’s the Problem? Making all the Noise in the Deep of the Night?) The police detective registered the complaint of criminal libel with the indigenous district court of Palembang, the Landraad.
On 19 January 1939, the court’s Chief Justice E.C. Bruins convicted the publisher of libel pursuant to article 483 of the Criminal Code. The editor who instructed the publication of item, although known, was convicted only as accomplice in a libelous act, while the publisher was convicted because he was not able to mention the name of the author.
The newspaper appealed the verdict to the Raad van Justitie of Batavia (District Court of Jakarta). The court affirmed the lower court’s judgment and increased the fine. The newspaper was proclaimed guilty even though the identity of the police detective was never mentioned in the article.
In Blitar, East Java Province, a rich Chinese businessman sued KENG PO daily. He abducted a 19-year old girl and had extra-marital sex with her. The diligent correspondent of KENG PO reported the story and embellished the report with jazzy details.
The rich man (plaintiff) ended up richer by almost a thousand Nederlands East Indies guilders. Justice Zorab, Kroon, and Swaab of the Raad van Justitie of Batavia (District Court of Jakarta) issued their decision on 22 August 1941. The defendant daily KENG PO did not appeal.
The court argued as follows: The deliberateness of the act of libel required by the law is evidenced by the way the details in the story have been written, and its appearance in print in KENG PO, while the facts of the matter are unproven. The story has been written up in an unnecessarily sensational way.
The defendant’s argument that the daily was merely acting in the public interest pursuant to its New Life Ideology according to which bad practices such as gambling, prostitution, keeping concubines, and opium smoking ought to be banished, is not acceptable. Pursuing the interest of the public cannot be carried out by disclosing details in private lives of individuals.
The defense that defendant publisher has no prior knowledge of the insulting content of the writing is also unacceptable. It merely shows negligence and insufficient supervision by the publisher.
B. Libel in the post-independence Indonesia
Attempts to castrate press freedom by criminalizing journalists who carry out their obligations to society are not only the practices of the colonial ruler, but also of the legitimate government of Indonesia.
Near the end of the constitutional democracy era in 1957, the national press was suddenly subject to a shower of criminal charges. There were 60 press cases to be brought before the Special State Court in Jakarta in 1957.
President Sukarno began his guided democracy in the mid 1950s. It changed the entire basis of life in Indonesia. Not to be excluded was the arrival of a new age for the Indonesian press, as everything then had to be fully guided. Whoever failed to comply with the limitations set by those in power would quickly suffer the consequences.
According to Koestiniyati Mochtar, a senior woman journalist, there was a flood of press offences. In 1956-57-58 and possibly up to 1960, judges and prosecutors were kept busy with complaints against the press, sometimes with up to 3-4 cases everyday. Court cases with reporters as the accused were an everyday occurrence that drew many interested onlookers.
History records that the government declared a state of martial law on 14 March 1957. The strong protection of freedom of the press that was guaranteed by article 19 of the Interim 1950 Constitution was first shaken and finally collapsed when President Soekarno put his system of guided democracy into effect in 5 July 1959. Soekarno declared that Indonesia would return to the 1945 Constitution.
The collapse of the democratic system in Indonesia thus began with an attempt to undermine freedom of the domestic press through the criminalization of journalists.
Soekarno, Indonesia’s first president sent some prominent journalist to prison in the 1950s. According to U.S. scholar Edward C. Smith, there were 125 libel cases against media. Most of defendants were found guilty of libel and defamation against high-ranking officials and local leaders.
As a part of the process of the change of government after an aborted communist coup in 1965, and under his newly acquired powers, Soeharto began by cutting “a swathe through the country newspapers”. In the early period of the New Order regime, nearly a third of all Indonesian newspapers were closed down, and journalists suspected of having communist or left-learning sympathies were persecuted, losing their jobs, or worse.
Under the New Order regime, the Indonesian government exercises tight control over the media through a variety of methods and requires the provision of information to promote the state and government under the guise of Pancasila journalism. According to this version of journalism, media reports should be positive and promote state welfare, or at the very least they should not be negative.
According to Damien Kingsbury, a part of the common interpretation of the state ideology of the Pancasila is that criticism of state leaders should not be tolerated because it is against national interest. Indeed, articles 134, 154, 155, and 160 of the Indonesian Criminal Code ban “the public expression of feelings of hostility, hatred or contempt toward the government, disobedience of a government order, or insults directed at the president”.
In 1974, in response to reporting of the Malari riots in Jakarta, the government closed several newspapers. Included in the closures were six Jakarta dailies, along with two regional dailies and four weeklies magazines. Many journalists were held without trial, or were blacklisted, requiring clearance from the director general of Press and Graphics before being allowed to work again.
Asia Watch human right report in 1988 noted that the Indonesian press is governed by an extensive regime of legal restraints, and the press organs operate under the pervasive threat of closure. Thus, everyone would agree that the press freedom during Soeharto government was bad.
Soeharto regime maintains that journalists must be silenced, because freedom will result in anarchy, conflict and instability. Three publications, for example, were banned again in June 1994 (Tempo, Detik and Editor). Journalists have been intimidated, jailed, and even killed like Udin case in Yogyakarta.
Soeharto imprisoned some journalists in the early years of his presidency in the 1970s. In 1995, Achmad Taufik and Eko Maryadi, the president and senior member of Independent Journalists Association (AJI), were sentenced to 32 months’ imprisonment each. Taufik and Maryadi, both were publishers of the monthly magazine Independen, were jailed for ‘spreading hatred’ against the Indonesian government.
One thing to emphasize here that during the New Order government, there were almost no libel cases reached the court. Apparently, Soeharto regime preferred to ban publications and put journalists in jail without trial rather than to file the libel lawsuits.
C. Libel in the today Indonesia
After the downfall of Soeharto in May 1998, Indonesian media began enjoying its freedom. President BJ Habibie government, with a stroke of the pen in 1999 abrogated the regulations that hampered the freedom of the press. The very restrictive regulation decreed by the Soeharto regime that an official license was needed to publish a magazine or newspaper was suddenly removed. In short, there were no more censorship and no need licenses to publish newspapers.
In 1999, as part of the post-Soeharto reformation process, Press Law 40/1999 was enacted which grants important protections to the media while making provision for the establishment of a Press Council to mediate between the media and the public. Under this arrangement, the state lost its power to ban publications or to close down newspapers.
But, as an editorial in the Jakarta Post mentioned in 1999, the sudden freedom that the Indonesian press enjoyed, which consisted not only of the abolition of the license requirement, but also the freedom to write and to disseminate news, sort of caught the Indonesian media unprepared. Apparently, President Habibie’s government assumed that with the termination of the requirement, it had done the public a service and established democracy overnight.
As it turned out, with new publications emerging like mushrooms after a rainstorm and television stations burgeoning, the demand for experienced reporters, sub-editors, and editors specializing in a variety of subjects rose considerably, while at the same time the supply was extremely limited. One simply does not produce a good journalist overnight.
With censorship lifted, newspapers and magazines have proliferated over the past six years, while competing television and radio stations now crowded the airwaves. When Soeharto resigned there were only 284 press publications in Indonesia. In just one year after, there were 1,138 new publications, 641 of them were tabloids. Many of the tabloids focus on sex and scandals.
Imbalance, opinionated news and a lack of professionalism continue to plague journalism in Indonesia in the post-Soeharto era. The Press Council stated that less than 10 percent of the Indonesian reporters work with integrity.
Former Press Council chairman Atmakusumah Astraatmadja said many of the more than 10.000 journalists currently working in the country are untrained and uninterested in ethics.
“We are free now, why we should need ethics?” said RH Siregar, former Secretary General of Press Council quoting reporter question to him in a seminar.
Indonesian press is now like a wild horse come out from its den. Joseph Kirschke of Pacific Media Watch described Indonesia’s news outlets as “free-wheeling”, particularly when compared to those in Thailand, Malaysia and Singapore.
“Before Indonesian society was oppressed by the military, now they are oppressed by the press,” said a member of parliament.
The State Minister for Information and Communication Syamsul Muarif said that Indonesian press today has “five diseases”, namely: pornography, character assassination, false and provocative news, misleading advertisements, and unprofessional journalists.
Some media practitioners even believe that ethics is only constrained and limitation for their freedom. So, for the sake of freedom of the press, they put code of ethics in the iron box of history.
“Print it, and be damned!” said media expert Tjipta Lesmana describing the latest situation of press freedom in Indonesia.
Some media in the country think that they have absolute freedom to write and report everything that “fits to print”. They print libelous statement, false reports, misleading facts and opinion related to character assassination.
This euphoria of freedom may not last for long. While government restrictions are not as suffocating as they were during the 32-year-long Soeharto reign, media activists say the free press in peril. There is a new enemy at the gate: the public outcry of bad practices of journalism in certain media. Not all media are bad, of course. Several newspapers have very long history of practicing “good journalism” and maintain its credibility to the readers.
But there is tendency that news organizations and journalists today find themselves in a challenging situation as they have become subject to violent attacks and legal action from individuals, officials, and business corporations.
“During the Soeharto era, the greatest threat to the press in Indonesia came from the regime. Today, it is coming from different sources: The public,” said law expert Nono
A number of lawsuits for libel have been filed against publications in Jakarta and other provinces. These developments, according to Pacific Media Watch, represent a serious reversal of the democratic gains, which followed the downfalls of the Soeharto regime in May 1998.
At least 14 cases of libel suits have reached the courts since the past years, and every single one of them is being heard using the Criminal Code, which Indonesia inherited from the Dutch colonial government. President Megawati Soekarnoputri sued the editor of the tabloid Rakyat Merdeka for criminal defamation under colonial-era laws over insulting headlines, including two that compared her to a cannibal and a leech.
The speaker of the House Representatives, Akbar Tanjung, sued another Rakyat Merdeka editor after being depicted in a political cartoon as bare-chested and dripping with sweat. Both editors were found guilty and given suspended prison sentences.
Indonesian Defense Forces (TNI) commander General Endriartono Sutarto sued the Washington Post for $1 billion over a report a report alleging that he discussed an operation against Freeport before an ambush near its huge mine in Timika, Papua province that killed two Americans and one Indonesian on 31 August 2002.
The U.S. newspaper wrote an article on 2 November 2002 with title “Indonesia Military Allegedly Talked of Targeting Mine”. Citing intelligence from “a US government official and other sources”, the article said “senior Indonesian military officials discussed an operation” against Freeport prior to the August killings.
The TNI commander said such reporting is libelous and an affront to the military and to Indonesia’s national dignity.
“Because I did not do any such thing, I believe the news was untrue,” he said, adding that it doesn’t matter if his lawsuit jeopardizes efforts to resume military relations between Indonesia and the US.
If the legal action succeeds, according to Sutarto, the damages awarded would be paid to the victims of the incident. TNI dropped on December 2002 its plan to sue the Washington Post because the US based daily provided a letter of apology to TNI for the use of unverified intelligence reports by its reporters. The Post published a front-page apology in several newspapers in the U.S. and Indonesia.
A number of lawsuits also have been filed against the Tempo magazine (and Tempo daily), one of Indonesia’s leading publications, which was banned twice during Soeharto era. Leading the attack is the country most influential businessman, Tomy Winata. A court ordered Tempo daily in January 2004 to pay $1 million to Tomy as well as publishing apologies on three consecutive days in several national newspapers. The publication has appealed against this verdict.
The judges said the newspaper had insulted Tomy by suggesting that he had sought a casino license in one province and might be looking at another location for one. Gambling is illegal here.
Tomy has also filed a criminal action against Tempo’s chief editor Bambang Harymurty for an article lingking Tomy to a disastrous fire in the Tenabang market. The Central Jakarta District Court on 16 September 2004 sentenced Bambang to one year in jail for libel against Tomy.
Goenawan Mohamad, a co-founder of Tempo back in 1974, called on journalists in February 2004 to stand together against the assaults on the press, saying that Indonesia should not be allowed to fall into the hands of a gang of criminals. This statement has resulted in his being charged by Tomy for libel. In the early stages of the trial, the court ordered that his home be seized as collateral against a possible claim for damages in the event that he loses the case, though he is still resident in the house. The case is still ongoing.
Another court verdict found Tempo daily guilty of running libelous reports from January 2003 to April 2003. The court ordered the defendant to apologize to business tycoon Marimutu Sinivasan by running ads in 41 media outlets –print and electronic—for three consecutive days. Should the newspaper fail to comply with the ruling, it will be fined Rp10 million (US$1,176) per day until it does so.
Sinivasan had sued Tempo daily for $50 million for carrying reports critical of his highly diversified but ailing business. However, the court refrained from awarding damages. Tempo daily criticized the verdict and appealed at the appellate court.
Sinivasan, who is on the brink of bankruptcy, also sued Kompas daily for $150 million in damages in the Jakarta District Court, but the Sinivasan-Kompas case ended in an out-of-court settlement.
The future of Tempo is very much in doubt because of the financial burden imposed by the verdict.
“We may be called the ‘late Tempo’,” said Bambang Harymurti. Legal fees alone last year were equivalent to one month’s salary for the entire Tempo’ reporters and editors.
Some media and human right advocates said that these series libel suits by businessmen, politicians and senior military officers were creating a chilling atmosphere and threatening to roll back some of the gains made by Indonesia’s press after the end of the dictatorship of Soeharto in 1998.
Indonesia’s libel laws generally favor the plaintiff. Truth is not a defense.
D. Decriminalizing of Libel and Revising the Press Law
Insulting another, assaulting the honor and good name of a person, even committed in public interest is libel under the Indonesian Criminal Code. Libel carries both a fine as well as a jail term in case of conviction. In short, under Indonesian law, libel is still a criminal offense and a suit for libel can get one arrested.
Article 310 of the Criminal Code stated:
(1) He who on purpose makes an assault against somebody’s honor and good name, by making an accusation of a certain fact, with the obvious aim to make public the same, shall be punished as guilty of defamation by a prison term of a maximum duration of nine months or a monetary fine of a maximum amount of three hundred guilders.
(2) If this occurred by means the written word or images, disseminated, openly exhibited or pasted, the actor shall be punished as guilty of libelous writing by a prison term not exceeding one year and four months, or a monetary fine of no more than three hundred guilders.
(3) Neither defamation nor libel exists insofar as the actor has clearly acted in the public interest or in compelling defense.”
Article 316 of the Penal Code stated:
“The punishments determined in the preceding articles of this title can be increased by one-third in the event the insult is affected against a administration official during or relating to the lawful execution of his service.”
Some people disagree if the press case settled with this “draconian” Criminal Code. Media workers and organizations have strongly denounced the way in which the Criminal Code is being used against journalists and publications, while the Press Law is being ignored.
Hinca Panjaitan, a member of the Press Council, said that if there’s a problem caused by a press report, the solution should be with the press approach too.
This arguments based on the fact that Press Law 40/1999 has been promoted as the Special Law governing all aspects of the print media, and that therefore, it should take precedence over and above other provisions in the Indonesian legal codes bearing on both criminal and private law aspects in media activities. (Lex specialist derogate lex generalist principle)
In meeting with Chief Justice Bagir Manan, the Press Council Chairman Ichlasul Amal asked all the judges to abide by the Press Law 40/1999 in cases against the press, instead of using the Criminal Code.
The Press Council underlined that the use of the Criminal Code had threatened freedom of the press, while the press freedom was characteristic of democracy. Ichlasul said that only when press freedom was upheld, could the country continue its democratization process.
Recently, there is a widespread pressure for the decriminalization of legal penalties for freedom of opinion, expression, and press freedom.
Bambang Harymurti, chief editor of Tempo, is one of the campaign activists on “Stop Criminalization of the Press!”.
He said, the United States has already practiced decriminalization of the press since 1964 through the decision of US Supreme Court in the case of “New York times vs. Sullivan”. In Japan, the decriminalization of press articles has been in effect for decades.
The tendency to decriminalize journalistic works and to limit to the value of civil claims has not only occurred in advanced countries. Ghana and Ukraine did this in 2001, Sri Langka in 2002 and Philippines in a few years ago. Even Timor Leste, witch still uses the Indonesian law produced until 1999, through UNTAET decree No.2/2000 has withdrawn all articles containing criminal penalties affecting the freedom of opinion, expression, and press freedom.
Hinca Panjaitan, said the journalistic work is self regulatory in nature. So to carry out their duties, journalists should be protected by specific regulation. “If a journalist stole something, he should be punished under the Criminal Code, but if he made mistakes in his journalistic work, it should be dealt with journalistic regulation’ he said.
But, not all people buy the idea to use Press Law and abandon Criminal Code in dealing with media dispute.
Tjipta Lesmana, a political and journalism analyst at the University of Indonesia said that in the context of libel, the judges are right when they use the Criminal Code, because the Press Law no. 40/ 1999 does not regulate such case.
Former Supreme Court judge, Benyamin Mangkudilaga, said that the current Press Law does not cover the press crime complained by victims to law officials. Various kinds of press crimes he mentioned are untrue articles, lies and libel.
“Like it or not, the uncompleted Press Law makes law officials to resort to the Criminal Code,” Benyamin said.
O.C. Kaligis, a prominent lawyer, said there is nothing wrong with using the Criminal Code against media.
“If a journalist called me a thief or crook, why can’t I find justice and sue him for insult. If the press people hide behind the press immunity and the press can just abuse and humiliate people. This is not right,” he said.
“Journalists aren’t angels. They are not above the law,” said Tjipta Lesmana.
According to Tjipta, even in the United State as a champion of democracy, of 50 federal states, 15 adopt penal court for libel by the press.
With this argument, it is not surprise if the government challenged the Press Council’s appeal for the Supreme Court to abide by the Press Law in cases involving the media. The Press Law was considered too lenient. State Minister of Communication and Information Syamsul Muarif said that the Press Law did not fulfill people’s sense of justice.
“Under the Press Law, for instance, a newspaper would only be fined for a libelous report, while the damage inflicted on the person’s reputation could be much greater,” Syamsul said after attending a meeting with the new members of the Press Council on 20 February 2004.
He asserted that it was preferable to use the Criminal Code in cases involving the media, unless the Press Law stipulated heavier sentences. “Publishing an insult could have a grave consequences as millions of people would read it. The media community should propose a revision to the existing Press Law before we can apply it,” the minister said.
He added that the Criminal Code would be used against journalists than the Press Law. Explaining that the government is now pressing for a revision of the Press Law, he said that until this happens, the Criminal Code would be used.
Apart from pros and cons on discourses about decriminalization of libel, everyone may agree that there is a need to make a revision of the Press Law No.40/1999. Until this revision happens, the Criminal Code would be used against media and journalists.
The Press Law No.40/1999 provides for anyone dissatisfied at their treatment by the press to use their right of reply. The current Press Law primarily deals with what legal texts term “droit de response”, which aims at giving the opportunity to the victims of libel to defend themselves in the same media and space the libelous writing were published.
Resort to the droit de response in no way diminishes the rights of the aggrieved to file claims for damages under Civil Code provisions, or to complaint of criminal libel under the Criminal Code.
The Press Law itself, in both of its body of provisions and its official elucidation, said that other laws which are in existence at the time of promulgation of the Press Law would still apply unless stated in the Press Law as in violation of the new law or nullified by the same.
The provisions in the Criminal Code as well as the Civil Codes relating to print media were in existence at the time of promulgation of Press Law No. 40/1999. None of such provisions have been declared nullified or in violation of the new law.
Thus, if the revised Press Law intents to be a specialist law (lex speacialis), it should declared clearly that other laws relating to media are nullified. In cases related to media and journalists, it should be declared that the Criminal Code must be set aside and the new Press Law used.
Article 3 of the Criminal Code itself said that: “If a certain act, which is included in the general criminal provisions, is also regulated under special criminal provisions, only the special ones are then applicable”.
The media community should propose a revision to the existing press law. Indonesian Press Law No. 40/1999 stated that the press is obliged to serve the right of reply (Article 5 A2) as well as the right the right of correction and retraction (Article 5 A3). Press publishing companies that violate this obligation are sentenced to a fine of maximum Rp500 million (US$6000).
The problem of the right of reply legislation under Indonesian existing law is this. If media offers a right of reply to the victim, it is not foreclose or bar any further prosecution of libel. As consequences, over the last few years, some of Indonesia’s most popular publications have been staggered by a series of libel lawsuits filled by businessmen, politicians and senior military officers.
The proposed revision should clearly stated that if the offending media publish a retraction or apology, or offers a right of reply, then the libel case may proceed but without criminal penalties. In this case, only compensation will be awarded. There should be no jail terms to be imposed in this law.
These kinds of settlement have been worked in the case of Commander of Indonesian Armed Forces (TNI) General Endriartono Sutarto with The Washington Post. General Sutarto withdraws the libel suit against The Washington Post, because the US based newspaper offers the right to reply and publish an apology for its mistake.
Other example is Shinivasan vs Kompas daily. Businessman Shinivasan filled libel suit against Kompas, but then both parties seek out-of-court settlement. Kompas daily offered the right to reply and a formal apologize, Shinivasan then withdraw the lawsuit.
These two cases give a good precedent for promoting the right to reply in order to avoid civil and criminal libel prosecution. As Attorney Pablito Perez said the right to reply will be an important alternative remedy particularly when there is no malice in the libelous report, only error, slight negligence or even poor editorial judgment.
Where there is malice, the right may be a little more complicated since a reply does not fully restore reputation severely injured. In this case, a party aggrieved by news or story can still fill libel lawsuit to the civil court.
But, going to court in a libel action is rarely a happy experience for any of the participants. Plaintiffs are rarely gratified. Lawyers’ fees can take as much as 50 percent of their winnings. It takes four year to litigate.
The press isn’t happy either. Defense cost is expensive and editors are immobilized for long periods of time. Publicity about the lawsuit only reinforces the negative attitudes many persons have about the news media, further damaging its credibility.
Thus, the best way to avoid the risk of libel lawsuits is the right to reply must be promoted and media voluntary correct their mistakes. If necessary, make an apology. But, the best thing media can do is to practice “good journalism”. Keep code of ethics in seeking truth and in report it. Lawyer says the truth is the best defense in libel case.
Most of the plaintiffs would never have filled a lawsuit if the news media would have published or broadcast a correction, retraction, or apology.
CEO of Mobil Oil William Tavoulareas has this to say when he fills a lawsuit against Washington Post:
“I’m not trying to destroy the press. I know what a free press means to this country. This suit would not have happened if they’d admitted their mistakes”.
The problem is many journalists are reluctant to do this. Like the title of an old song “It is hard to say I am sorry”. Yes, sorry seems to be the hardest word for journalist.
Other important thing in the effort to decriminalize libel and to revise the current Press Law is how to empower the Press Council as a tool to mediate between the media and the public. Thus, revising the Press Law means clearly stating that all media-related cases be resolved through the Press Council. This revision will make the Press Council more effective and efficient to resolve the press disputes compared with the court proceedings.
Those truly looking for fairness, not retribution, from the press should see this as an attractive means of addressing their concerns.
Akhmad Kusaeni, Sorry Seems To Be The Hardest Word For Journalists, Pilars
Internasional Magazine, October 2004.
Ardimas Sasdi, Verdict on Tempo Daily a Deathblow to Media, The Jakarta Post,
8 January 2004.
Asia Watch human right report, 1988.
Bambang Harymurti, Defence Note: A Reporter Accuses, 2004. The author read it at the
Central Jakarta District Court, 16 August 2004.
Damien Kingsbury, The Politics of Indonesia, Oxford University Press, 1998.
Don R Pember, Mass Media Law, New York, McGraw-Hill, 2002.
Edward C. Smith, A History of Newspapers Suppression in Indonesia (1949-1965),
University of Iowa, 1974.
Jose Manuel Tesoro, The Invisible Palace, 2004.
Joseph Kirschke, New Worries for Indonesia’s Free Press, Pacific Media Watch,
18 December 2003.
Koestiniyati Mochtar, A Women Reporter Tells, Badan Penerbit Indonesia Raya, 1968
Laksamana, Mining: Military Chief to Sue Over Report, Laksamana.Net, 10 November
Lukas Luwarso, Give Freedom of the Press a Chance, Inside Indonesia, Oct-Des 2002.
Ministry of Information, Various Sides of the History of the Development of the Press in
Indonesia, Academy of Sciences, 1980.
Nono Anwar Makarim, Defamation and the Print Media in Indonesia (Three Pre
-Independence Cases), Aksara Jakarta, 2004.
Pablito Perez, lecture on Media Law at the Center for Journalism at Ateneo de Manila
Pacific Media Watch, Press Freedom Under Threat In Indonesia, a press release on 22
Pilars International Magazine, Volume 17, 3 October 2004.
Raymond Bonner, Battle against Indonesian press moves into the country’s courts,
The New York Times, 1 February 2004.
RH Siregar, Code of Ethics in the Era of Reformation, July 30, 2002.
The Jakarta Post, September 3, 2004.
The Jakarta Post, 24 February 2004.
The Jakarta Post, 18 October 2004.
 Nono Anwar Makarim, Defamation and the Print Media in Indonesia (Three Pre-Independence Cases), Aksara Jakarta, 2004.
 Ministry of Information, Various Sides of the History of the Development of the Press in Indonesia, Academy of Sciences, 1980.
 Koestiniyati Mochtar, A Women Reporter Tells, Badan Penerbit Indonesia Raya, 1968.
 Bambang Harymurti, Defence Note: A Reporter Accuses, 2004. The author read it at the Central Jakarta District Court, 16 August 2004.
 Edward C. Smith, A History of Newspapers Suppression in Indonesia (1949-1965), University of Iowa, 1974.
 Damien Kingsbury, The Politics of Indonesia, Oxford University Press, 1998.
 Asia Watch human right report, 1988.
 To learn more about Udin case, please read “The Invisible Palace”, the book written by the Filipino writer Jose Manuel Tesoro in August 2004.
 RH Siregar, Code of Ethics in the Era of Reformation, July 30, 2002.
 Joseph Kirschke, New Worries for Indonesia’s Free Press, Pacific Media Watch, December 18, 2003.
 Lukas Luwarso, Give Freedom of the Press a Chance, Inside Indonesia, Oct-Des 2002.
 Akhmad Kusaeni. Sorry Seems To Be The Hardest Word For Journalists, Pilars Internasional Magazine, October 2004.
 The Jakarta Post, September 3, 2004.
 Pacific Media Watch, Press Freedom Under Threat In Indonesia, a press release on 22 March 2004.
 Mining: Military Chief to Sue Over Report, Laksamana.Net, 10 November 2002.
 Ardimas Sasdi, Verdict on Tempo Daily a Deathblow to Media, The Jakarta Post, 8 January 2004.
 Raymond Bonner, Battle against Indonesian press moves into the country’s courts, The New York Times, 1 February 2004.
 Pilars International Magazine, Volume 17, 3 October 2004.
 Bambang Harymurti, Defence Note: A Reporter Accuses, 2004.
 Pilars International Magazine, Volume 17, 3 October 2004.
 Jakarta Post, 24 February 2004.
 Pablito Perez, lecture on Media Law at the Center for Journalism at Ateneo de Manila University, 2004.
 Don R Pember, Mass Media Law, New York, McGraw-Hill, 2002.