Human Rights Watch (HRW) examines Indonesia's harsh defamation laws in a report issued in April, "Turning Critics into Criminals: The Human Rights Consequences of Criminal Defamation Law in Indonesia." CQ Global Researcher writer Barbara Mantel discussed the report with Elaine Pearson, deputy director of HRW's Asia Division.
CQGR: Indonesia has eliminated many of the most pernicious laws that officials once used to silence critics, but criminal defamation and insult laws remain.
EP: Six criminal defamation and "insult" provisions are commonly invoked by powerful people in Indonesia. These include provisions in the Criminal Code on slander or libel, with higher penalties invoked if the person is a public official. There are also specific provisions against insulting a public authority and a particularly harsh provision that punishes the communication of defamatory statements over the Internet, with up to six years' imprisonment and a fine of up to 1 billion rupiah (approximately $106,000).
CQGR: What if the statements are true?
EP: Under Indonesia's "insult" laws, truth is not a defense if an official finds the content of your statement "insulting." Under the other defamation laws, if defendants want to use truth as a defense they have to both prove their claim is true and also that they acted in the "general interest" or out of necessity. And this is risky; if the judge hears a truth defense but is not convinced, the defendant can be found guilty of "calumny" which carries a more severe penalty of up to four years imprisonment.
CQGR: Why is the penalty higher for defamation over the Internet?
EP: One justification is that Internet defamation has the potential to be far more harmful than regular defamation because the Internet can be used to communicate content to an infinite number of people. Human Rights Watch believes that it is precisely because the Internet can dramatically expand the channels for communication and sharing of information that laws on Internet use should not seek to repress the peaceful airing of grievances.
CQGR: How have officials and powerful private citizens used these laws to silence criticism and opposition?
EP: Because the laws contain extremely vague language, powerful people can use criminal defamation laws to retaliate against people who had made allegations of corruption, fraud or misconduct against powerful interests or government officials. These laws are also open to manipulation by individuals with political or financial power who can influence the behavior of investigators. For instance, in some cases the police aggressively pursued the criminal defamation complaint without properly investigating the validity of the underlying complaint of corruption or fraud.
CQGR: Can you give an example of a government official using the laws to silence opposition?
EP: Three activists from the Coalition of Students and People of Tasikmalaya were put on trial in 2009 for criminal defamation on a complaint filed by a local education official after they held an anti-corruption demonstration related to corruption charges they had made against him. Tukijo, a farmer, was convicted of defamation earlier this year. The charges were brought by a local official whom he asked for the results of a land assessment. He had previously argued with the local official.
CQGR: Can you give an example of these laws' use against the media?
EP: Bersihar Lubis, a veteran reporter, was convicted of defaming the attorney general when he criticized his decision to ban a high school history textbook in an opinion column. Journalist Risang Bima Wijaya was convicted of defamation and served six months in prison after he published unflattering articles about a local media figure in Yogyakarta who had been accused of a crime.
CQGR: What impact do these criminal defamation laws have on democracy in Indonesia?
EP: All those accused of defamation engaged [in conduct] that included holding peaceful demonstrations against officials accused of corruption, publicizing consumer complaints and disputes with businesses, requesting information from the authorities and lodging complaints with them and reporting in the media on subjects of public importance. Democracy requires a vibrant civil society that can monitor the performance of public officials and a free press that shares information about prominent people and events, even when the news is negative. And democracy requires an atmosphere in which people are free to speak their minds and participate in public discourse. But under Indonesia's defamation laws, people who do these things can be found guilty of a crime if they offend the wrong person.
These laws have a chilling effect on free speech in Indonesia. This is harmful to every individual who has something to say but is afraid to do so because they fear imprisonment. Journalists told us how they are afraid to get an exclusive story on sensitive topics because they fear going to jail.
CQGR: What other countries in Southeast Asia have criminal defamation laws?
EP: Many countries -- such as Singapore, Malaysia, Cambodia and Thailand -- have criminal defamation laws or other "insult" or national security laws which have a similar chilling effect. However from what we have seen in Indonesia, the use of criminal defamation laws is more widespread. Also Indonesia has more criminal defamation offenses than any other country in the region.
CQGR: Human Rights Watch wants to see criminal defamation laws eliminated. Why is there no place for criminal penalties?
EP: Criminal penalties are always disproportionate punishments for reputational harm and should be abolished. International human rights law allows for restrictions on freedom of expression to protect the reputations of others, but such restrictions must be necessary and narrowly drawn. As repeal of criminal defamation laws in an increasing number of countries shows, such laws are not necessary. Civil defamation and criminal incitement laws are sufficient for the purpose of protecting people's reputations and maintaining public order and can be written and implemented in ways that provide appropriate protections for freedom of expression.
Elaine Pearson is deputy Asia director at Human Rights Watch.