The Meaning of Defamation on Information and Electronic Transactions (IET Law) According to the Constitutional Court (CC) : Facts and Critics
Prelude
0. Some cases of (allegation of) slander and/or defamation (in this paper referred to "Defamation") that attract public attention. The cases were broadcasted by television media are trying to play the emotional of a community. Call it like Prita Mulyasari who has triggered coin collection of Prita, up to the case of Florence Sihombing who was interesting Sultan of Yogyakarta to meet her. All are imposed by the trap of the Defamation Clause of IET Law. Frequently, as a result of these cases, the society has the bad image of this Law. In the end, CC has been selected as a forum to convey the people's aspirations to conduct a constitutional review.
The Review of IET Law
1. One of the constitutional tests of the UU ITE discussed in this paper is the Court Decision No. 50/PUU-VI/2009 dated May 4, 2009, where a petition filed by a journalist/blogger ("Petitioner") who suffered losses due to the IET Law for writing published in the blog deemed has been insulting one of politician.
2. The Petitioner has made an opportunity for the politicians to confirm his writing. Also, he has been trying to contact some of his colleagues in his circle. In addition, the right of reply from the source has also been accommodated to make a room in his blog. However, all of his efforts is unsuccessful.
The Rationale of The Decision
3. The Court found that the Defamation Clause is not only found in the merely IET Law but is found in the Criminal Code so that CC was divided the territorial of applicability of IET Law and the Criminal Code whereas the first to apply in online (cyber world) and the latter to apply in offline. Due to the elements of the criminal act or the formulation of words in the Criminal Code, in particular of Article 310 paragraph (1) of the Criminal Code such as "common knowledge", "public" is inadequate to cover the expression of the virtual world. Therefore, it requires a special formula that is extensive through Article 27 paragraph (3) of the IET Law (The Legal Considerations of CC).
4. In spite of Article 310 of the Criminal Code cannot be applied in the cyber world, but, according to CC, the enforceability and interpretation of Article 27 paragraph (3) of the IET Law cannot be separated from the basic norm as referred to in Article 310 and Article 311 of the Criminal Code as a genus which requires a complaint (klacht) to be prosecuted and should be treated to criminal law prohibited in Article 27 paragraph (3) of the IET Law. In other words, Article 27 paragraph (3) of the IET Law can only be applied if the investigator receives complaints from the public.
5. According to the Court, despite everyone has the right to communicate, but does not eliminate the right of the state to set the freedom to communicate and obtain information does not violate the rights of others. UU ITE is a political product to educate people in the direction that is in line with Article 31 paragraph (3) of the Constitution 1945 which substantially, it is an education to the society which improves of faith, piety and character.
Reflection
6. We definitely all agree that the right to communicate, the right to obtain communication and human rights should be restricted by law as described in the legal reasoning of CC. However, how its procedure? Whether the in-depth meaning of the right to communicate and human rights described in the court legal considerations only can be accommodated by the formulation of the defamation clause in EIT Law ?
7.
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The formulation of the article is not entirely clear and may give unlawful interpretations in the case brought in front of judges. In fact, the principle of criminal law is lex certa, mandates that the formulation of a criminal act shall be clear. Otherwise, it is feared will be used unlawful law by the law enforcers itself. Does the clause meet such principle?
8. If noticed in the Petitioner’s arguments, it seems that the Petitioner did not elaborate on the fundamental principles of the criminal law. Petitioner more, basically, vested on the argument of human rights and private rights. However, the Petitioner requested that the decision rendered by the fairest (ex aquo ex bono), therefore CC should be able to consider the fundamental principle of criminal law, basically, lex certa principle. Thus, would be in line with the opinion of CC that Article 310 and Article 311 of the Criminal Code is a genus of the criminal law of the Defamation clause in the EIT Act.
9. The Petitioner is a journalist who became the victim of his own writing in the blog, but should as a journalist, the Petitioner has access to check and recheck the above article conducted, for example, make contact for confirmation regarding news of the politician as a subject in his writings. The confirmations have been conducted if we read on his petition. Unfortunately, the Petition did not even use such fact to strengthen his argument. On the contrary, he said would be too naive to have to confirm of any posts made.
10. The process to make efforts to confirm the legal subject in his writing should be disclosed and evidenced been conducted. If successfully evidenced, particularly, regarding the journalistic profession, if in his writing has been complied with the standards of professional ethics and legislation related to the profession of journalists, and then the defamation article should be applied only if the reporter had failed to fulfil the journalistic procedures that previously had to be conducted.
11. If there is a detailed procedure of item 11 above, regarding the certain procedures, conditions and requirements which has been carried out previously in order to not be covered by the Defamation clause of EIT Law, therefore the formulation of the Defamation clause becomes more able to balance the needs of citizens to disclose information with the legal protection of the legal subject mentioned in the news. If CC does not play a role in balancing the rules are too extensive (mentioned by its own statement in the consideration of CC that required extensive arrangements in order to regulate Defamation in cyber world), then it is feared that the interpretation of the Defamation clause to be a justification tool for private interests of law enforcers, not a means of justifying the enforcement of our Constitution.
12. Finally, I am uncomfortable by the legal reasoning of CC which this defamation clause upheld is intended as an educational tool to increase faith and piety of its citizens. What do the measurements of its abstract argument? Whether necessarily does the state enter to regulate the faith and piety? Furthermore, the Applicant’s action is implied as an act of people who does not have faith and piety. Whether does it appropriate that CC give The EIT Law label as a "stick" or punishment if the faith and piety of our citizens broken? It would be naive