V. The Effects of Criminal Defamation

Criminal defamation laws inevitably take a significant toll on the individuals to whom they are applied. The cases often drag on for a year or longer, costing time and money and bringing considerable stress to the defendants, their families, and their colleagues. The use of criminal defamation laws also has a chilling effect on the speech of others, particularly those working on similar issues. When citizens face prison time for complaining about official performance, corruption, or poor business practices, other citizens take notice and are less likely to draw attention to such problems themselves, undermining effective governance and a vibrant civil society.

Consequences of the Criminal Process

Defendants in criminal defamation cases interviewed by Human Rights Watch endured a number of difficult consequences as a result of the charges against them. Some experienced extremely lengthy investigations and trials—occasionally lasting for years—while others explained that they had heard nothing from police for long periods of time, leaving them confused as to whether the cases against them were still active or not. Some endured significant financial and professional consequences as a result of the claims against them, while others recounted feeling shame once members of their community realized they were being investigated by the police. Nearly every criminal defamation defendant we interviewed agreed that their personal lives had been negatively impacted; many explained that their family members had experienced significant stress, or feared that their families and friends could suffer as a result of their prosecution.

For example, Khoe Seng Seng, Winny Kwee, and Fifi Tanang experienced a grueling legal process after they were accused of defaming a real estate developer. They became targets of a criminal defamation investigation in November 2006, but the police investigation into their case lasted until September 2008, at which point their files were transferred to the prosecutors’ office. For several months preceding the beginning of their trials in November 2008, they were required to check in with authorities twice a week. Fifi’s trial lasted until May 2009 and Seng Seng and Winny were tried together until July 2009. Of their more than two-year-long experiences within the Indonesian criminal justice system, Winny said the worst thing was “the loss of time. That and the loss of concentration, which makes business go haywire.”[137]

Loss of time was not the only consequence they faced. Winny had been managing a small women’s clothing store with her husband for over a decade when she was accused of criminal defamation. However, the police investigation and subsequent prosecution severely impeded upon her ability to assist him, forcing them to rent their stall to others and leading him to seek business opportunities overseas. Winny told Human Rights Watch:

I’m the one who did the buying trips abroad. Especially during the criminal case, it is very hard to leave the country because you have to attend court sessions. For more than two years, I couldn’t go to Paris, so the business suffered. It also caused a rift in the family. Now my husband has gone to Singapore because the business here is gone. We will have to start over, and that is hard because he is over 50.[138]

Winny Kwee said of her husband, “When we talk, we talk less of [the case] because it might affect our marriage.”[139] Of the reputation she believed she had developed in her community she said, “It is hard for people to understand us. They say don’t get into trouble. They don’t understand we are fighting for our rights.”[140]

Other defendants reported similar experiences. Dadang Iskandar of Gunungkidul Corruption Watch told Human Rights Watch that his relationships with the NGO colleagues and friends who participated in the anti-corruption rally that gave rise to the defamation claim against him have suffered because the police have questioned many of them as witnesses in his case. “My relationship with [my colleagues] is strained. They are scared, worried. They feel threatened because the police are questioning them. I feel lonely—so many friends keep away from me.”[141]

Zamzam Zamaludin, the advisor to KMRT in Tasikmalaya acquitted on defamation charges in June 2009, said that the social stigma that had attached to KMRT as a result of the criminal defamation claim was making it very difficult for them to work:

Because we were in the courts, people were calling us criminals. Even the district chief called [KMRT] an “illegal organization.” A group said our organization should be dissolved because we had engaged in criminal behavior. Some that signed the letter calling for KMRT to be dissolved were my friends … It’s hard to work with other organizations now. I was so disappointed. I felt like a public enemy, and I still do now.[142]

Jamaluddin and Badruzaman of KMRT said that the defamation trial they faced was extremely stressful. “I feel very bad for my parents, even though they tell me, ‘keep fighting,’” said Jamaluddin.[143]

When Bambang Kisminarso and Naziri did not hear from police after they were declared criminal defamation suspects in April 2009, Naziri approached police on his own initiative in October 2009 and January 2010. On both occasions, the police confirmed that the investigation into the complaint remained active. Naziri says that the anticipation and apprehension are extremely troubling. “Psychologically I have a problem because my case is just hanging,” he told Human Rights Watch.[144] Bambang confirmed, “I’m ready if they want to open it. The uncertainty is worse.”[145] Beyond the uncertainty, the men note that the charges against them have caused their family members significant stress because they were initiated by a very powerful individual. Bambang Kisminarso told Human Rights Watch, “My family is scared because the matter deals with ‘RI-1’” [a code for the President of Indonesia].[146] Further, Naziri said that he felt as if his community now perceives him as a criminal, saying, “For people that don’t know me, there’s a stigma that I am a suspect, that I did something wrong.”[147]

Dyanawan Widjaya’s case demonstrates how any criminal defamation complaint can become a grueling ordeal. Dyanawan became the target of a criminal defamation complaint by his neighbor in November 2007, after he sent a letter to the Urban Planning Office regarding their property dispute and shared copies of the letter with other neighbors and a reporter.[148] Dynawan was summoned by police for questioning in December 2007 and March 2008. From April to September 2008, he was required to report twice a week, first to police, and then to prosecutors. Throughout his six-month-long trial, Dynawan was required to attend court hearings for several hours once a week. “I lost all concentration…. Reporting to the police can take all day,” Dynawan told Human Rights Watch.[149] Of the 20-month saga that he endured, he asked, “How can writing a letter result in so much havoc?”[150] As a result of the criminal defamation case against him, Dynawan also had to close the business he had operated out of his home since 1987. Dynawan said it was impossible to remain self-employed during the grueling process. “I lost concentration and my business faltered.”[151] He added that his family was shocked to learn that he was the subject of a criminal investigation. “I am embarrassed that I have to report to the police because people here know that you report to the police if you’ve done something bad,” he said.[152]

Few defendants faced a more difficult situation than Upi Asmaradhana, the Metro TV reporter who felt it was his professional duty to complain when a high-ranking city police official made statements suggesting that media freedom should be limited. When Upi traveled to Jakarta to file complaints against the official, Inspector General Sisno of the Makassar Police, he says that two senior managers of Metro TV ordered him to refrain from publicly criticizing Sisno, saying his actions could affect “the institutional relationship between the police and Metro TV.”[153] Presented with a choice between speaking out on behalf of his coalition of journalists and keeping his job, Upi chose the former and resigned. Today, Upi has no regular job and must work as a freelancer. Even that job has been difficult, as he feels that has become “a leper” in his profession.[154] Upi told Human Rights Watch that the professional and financial impacts of Sisno’s subsequent defamation claim against him have been significant. Upi explained that he had to sell his car and lost his income as a freelancer; that he lost his fiancé and his father became ill as a result of worrying about his case. However, for him the biggest loss was his job at Metro TV. Upi explained, “I loved my job—because I love my job, I did this.”[155]

Imprisonment and Other Sanctions

The threat and stigma of imprisonment also has a lasting impact on many criminal defamation defendants. Fifi Tanang recounted, “The first time I was called by the police as a suspect, not as a witness, I couldn’t sleep for a week. I was so afraid I would go to jail. In all my life, I’ve never gone to jail. I don’t know what it’s like.”[156] Tukijo, convicted of defaming a local official and sentenced to a three-month suspended prison sentence and six months’ probation, told Human Rights Watch at the time the police investigation into his case was still ongoing: “My family members are worried [that] I will be convicted and have to go to prison. One night, my wife and sons were crying and saying, ‘what if you are sent to jail and we can’t see you anymore?’”[157]

Those individuals convicted of criminal defamation but sentenced to probation and given suspended jail sentences, like Khoe Seng Seng, Winny Kwee, and Fifi Tanang, may have avoided the worst of punishments but, having come close, they live in fear. As Winny told Human Rights Watch: “I am scared that if we do anything, we will be sent to jail.”[158]

Defendants who were detained or imprisoned emphasized the continuing impact of the experience. Prita, a devout Muslim who was detained by prosecutors without warning in May 2009, noted that she arrived in prison without any spare clothing or prayer accessories and without having a chance to prepare her family for her absence:

I was shocked. I hadn’t prepared, especially for the kids. I had to stay in a three by four square meter room with twelve women. I wasn’t allowed to leave or see my family for the first week. I had to borrow clothes from my cell friends…. It was very traumatic for me and my kids. I’m never far away from them. I don’t want my kids to know that their mother was in jail. I asked my husband to tell them that I was in the hospital again.[159]

Prita’s most emotional moment, however, came on May 21, when she missed her son’s third birthday. She says family members came to the prison to comfort her on that day, but “they didn’t bring [my son] because I didn’t want him to come to prison.”[160]

Even months after being released, in November 2009, Prita described intense feelings of anxiety and shame. “When I’m walking in the mall I still feel like an ex-prisoner,” she said. “I feel inferior. My husband tells me I wasn’t in prison for murder or gambling, only because I wrote an email, so I shouldn’t feel like an ex-prisoner.”[161]

In Risang Bima Wijaya’s memoirs from his six-month detention in Cebongan Prison, he describes his emotions and the conditions he endured. Upon his arrival at prison, his cellmates explained the customary abusive initiation procedure that he would likely soon experience: “New prisoners would be tortured by their wardens. Punched and kicked, and forced to do the ‘duck walk.’”[162] Risang was fortunate in that he was only forced to complete one lap around the prison yard in an uncomfortable position in the rain—other prisoners were forced to continue until their feet were blistered and peeling. Risang spent his first four days in prison in “quarantine,” in which he was kept in solitary confinement and denied food and bedding. Eventually he was transferred into a 3.5m x 5m cell designed to hold four prisoners, but which, in his case, held nine. Risang received insufficient food and water, faced unsanitary bathing and restroom facilities, and often witnessed wardens physically abusing other inmates. However, he maintains that the most painful aspect of his detention was the constant boredom. “Missing my family, friends, and work … I always had trouble sleeping at night, counting the days until I would be free.”[163]

Since his release from prison Risang has continued to be affected by the consequences of his criminal defamation conviction. “I’m ashamed of having been imprisoned,” he told Human Rights Watch. “I don’t consider myself a hero. It’s me and my family who had to suffer.”[164]

Chilling Effect

Every defendant Human Rights Watch interviewed expressed fear that his or her experience with criminal defamation law would deter others like them from engaging in the same activity in the future.

This especially affects the work of anti-corruption and human rights NGOs. Usman Hamid told Human Rights Watch, “Many activists have said … ‘if this happens someone like you, who works in Jakarta and is well known, what about us, who work far from the center and away from the media?’”[165] Illian of Indonesia Corruption Watch said, “Our colleagues in the provinces are so scared. If ICW with its high profile can be treated like this, what will happen to those in the provinces?”[166]

The experience of Dadang Iskandar of Gunungkidul Corruption Watch illustrates this risk. Dadang said, “Our first demonstration had 150 participants, [but] the numbers have decreased,” he said, noting that people “feel that the police will target them.”[167] Of the larger consequences of his prosecution, Dadang said, “This situation is very counterproductive to our struggle. We are so disappointed. It gives people more opportunities to commit corruption in Gunungkidul.”[168]

Indonesia’s criminal defamation laws can also undermine the media’s willingness to investigate or even report on allegations of misconduct by powerful people, and this is particularly the case outside Jakarta. Risang told Human Rights Watch that he has resigned himself to inconspicuous reporting as a result of his experience. “I don’t want to repeat it again. I always lost. So I want to be a criminal reporter, doing my routine, nothing high-profile. I decided to be silent,” he said.[169] As to the effect his experience had on other reporters in Indonesia, he said, “It was like an infection with other journalists when they found out. Look at the quality of our journalism today—it has suffered a setback. They report on traffic jams now … It’s only a slogan to say that journalists cover the powerful.”[170] Leo Batubara, Deputy Chairman of the Press Council, agreed, saying, “When corruption is everywhere, we need quality media to fight,” he said. “But they don’t because it costs more.”[171]

While NGO activists and journalists are the people most obviously affected by criminal defamation laws, private citizens in a position to raise alarms—by sending letters to the editors of newspapers and writing letters, filing claims, or otherwise petitioning government officials—also are affected. Supriyadi W. Eddyono, the coordinator of the Indonesia Media Defense Litigation Network, told Human Rights Watch that his biggest concern with criminal defamation laws is that “regular people” are increasingly feeling the impact of criminal defamation laws, and that their experiences could have a powerful impact on the willingness of those around them to express their opinions.[172] Tujiko confirmed that this has been the case in his village, saying, “Other people are so worried [that] if they do the same thing they will be criminalized by the government.”[173] Winny Kwee claims that the criminal defamation claim brought against her has made others fearful of criticizing the real estate tycoon.[174] Tulus Abadi of the Foundation of the Indonesian Consumers Institution said Prita’s case, which gained wide attention inside and outside Indonesia, has had an extremely detrimental effect on the willingness of private citizens to publicly express anger or dissatisfaction about anything. “This case has killed [the] consumer’s right to complain and created a new fear about being critical,” he told the Jakarta Post.[175]

Criminal vs. Civil Defamation

While the Indonesian Civil Code does not contain any specific articles that deal with defamation, defamation can be punished through an ordinary tort action. Articles 1365 and 1372 of the Civil Code allow an aggrieved party seeking compensation to rely on the Criminal Code’s defamation provisions to establish that a violation occurred.[176] If the party proves that the defendant violated the defamation provisions of the Criminal Code or ITE, he or she can be awarded compensation for damages and “the reinstatement of good name and honour that were damaged by the offense.”[177]

Several of the individuals interviewed by Human Rights Watch for this report were accused of both civil and criminal defamation and several faced significant civil penalties. For example, Prita Muylasari was found guilty of defaming her doctors in a civil tort suit and ordered to pay Rp204 million (US$21,400) in damages,[178] and Khoe Seng Seng was also found guilty in a civil suit and was ordered to pay approximately Rp1 billion (US$98,000) in compensation.[179] Yet defendants who had faced civil suits agreed that the criminal charges they faced were of more concern.

Criminal defamation laws differ from civil defamation laws in a number of significant ways. The first is the degree to which defendants must interact with law enforcement authorities. Criminal defendants are investigated and interrogated by the police. They are frequently compelled to check in with police once they have been declared suspects and with prosecutors once they have been indicted. If their cases proceed to trial, they must attend all sessions and, if they are employed, they must be absent at least one day a week for as long as the trial continues—which can be six months or more. These interactions with law enforcement officials are more than just stressful and disruptive; they also provide the authorities with frequent opportunities to exact bribes. Anggara, executive director of the Legal Aid Center of the Indonesian Advocate Association (Pusat Bantuan Hukum Perhimpunan Advocat Indonesia, or PBH PERADI) told Human Rights Watch that one of the biggest impacts of being charged with criminal defamation is that “it’s a very long process and it’s very expensive, because you have to bribe police.”[180] Risang concurred, “I’m not afraid of prison. What scares me is the process—from police, to prosecutor, to trial…. When one enters prison one becomes calmer, because one has suffered all the other processes.”[181]

Criminal defamation laws are also easier and less expensive for aggrieved parties to use than civil law. A person who believes he has been criminally defamed needs only to file a report with the police, and in theory, law enforcement officials will take responsibility for investigating and prosecuting the case thereafter, with no cost to the complainant. Under civil law, however, a person who believes he has been defamed must hire a lawyer to conduct an investigation and litigate the claim on his behalf.[182] As Usman Hamid told the Jakarta Globe, “In other countries, you need a top-notch lawyer to sue someone for defamation. Here, all you have to do is ask the police to pursue the case and the rest is taken care of.”[183]

Of course, the most obvious difference between civil and criminal defamation laws is that only criminal laws carry the threat of imprisonment or probation. As Upi, who was subject of both a criminal and a civil defamation suit noted, “In a civil case, there is no threat of being in prison—the sanction is much lighter. The most is that you will be bankrupt. But a criminal case will rob you of everything, including your freedom.”[184]