Why Indonesia's press law needs attention

Sirikit Syah, Surabaya

There have been a number of cases in recent years that challenge the implementation of the Indonesian Press Law (No. 40/1999). Article 7 of the law obliges every journalist to practice a code of ethics. Receiving money from thankful sources, for example, stands in violation of the code.

Considered the best press law in the world by Toby Mendel (a consultant behind the formation of the law), the Indonesian Press Law is very satisfying from the press's point of view, since it grants the press a great deal of legal protection. The only nonprotective articles are perhaps those about decency (Article 3) and accountability (Articles 15 and 17).

As somebody coming from a journalistic environment, in my 2002 dissertation (Westminster University, London) I proposed Article 7 be omitted from the law. In my opinion, breaking ethical codes should not be considered in violation of a press law. That kind of wrongdoing is a matter for the media company, the press association/organization, or the Press Council.

The press community should thank God that since the law's instatement in 1999, no journalist has been reported for violating any part of it, let alone Article 7.

Another crucial issue concerning press law is the law of libel/defamation. Beginning in 2003 with the case of Tomy Winata vs. Tempo, the law has been constantly challenged. While the press community rejects the use of criminal law to judge any case resulting from grievances with publication, no alternative law exists with which objects or victims of publication might challenge the press. The press law does not contain any regulation on libel (fitnah), defamation (pencemaran nama baik), or false news (kabar bohong/berita palsu). The Criminal Code has such regulations; this is why they use them.

The dilemma is this: if the press rejects the use of criminal law, and the press law doesn't contain a related regulation, does it mean the press cannot be tried in criminal cases? Does it mean the victim of publication loses his right to defend himself and demand justice? Does it mean the press always wins?

In the case of Soeharto vs. Time, it is common knowledge that Time didn't defame Soeharto. If Soeharto's name -- and the whole family's name -- was defamed, it began long before the Time articles were published. Soeharto's lawyer may just prove to court that the news was false. It's the same with the case of Tomy Winata vs. Tempo: it is not about defamation (granted, we agree they don't have good names) but, possibly, 'false news'. Is the story accurate, valid and verified? Or is it full of assumptions and predictions proven to be false?

Other press law articles in need of review are Hak Tolak (the Right to Refuse) and Hak Jawab (the Right to Reply). Hak Tolak is not clearly defined, and in many cases journalists (usually supported by their institution) refuse summons requests by the police or court to act as a witness.

This is a violation of the common law. A journalist is a citizen not above the law; he must obey the police or court like any other citizen. His refusal to disclose a source's identity must only be used in court, as supported by a panel of judges after they hear some experts testify. A journalist does not need to worry because among the expert witnesses is a representative from the media practitioners/observers.

The nature of the profession gives journalists privilege to withhold a source's identity, but the right to refuse should only be used in extraordinary cases, and only when supported by a credible group of people (a panel of judges, expert witnesses, etc.). The world would be in chaos if journalists made anonymous every source they met and every quotation they used.

The right to reply, on the other hand, is implemented quite well in the Indonesian media. Some news magazines dedicate almost half their readers' letters space to complaints and corrections and replies. When Jawa Pos published a false story on Syafri Samsudin in 2004, it devoted one whole page for Syafri to respond.

But often ignored by the press is that the right to reply does not prevent one from bringing a matter to court. There is no such clause in the Press Law. This means that regardless of whether one exercises his right to reply, and regardless of whether the right is granted by the media institution, he still can go to court. No person and no regulation forbids him from doing so.

We have been debating a possible review of the press law quite some time. The Parliament wants stricter regulations on the press, reducing freedom and adding responsibility, while the press community wants more freedom. My proposed solutions are to omit Article 7, redefine the right to reply and the right to refuse, and regulate libel/defamation in a revised press law.

The writer is Lecturer of Media Ethics and Law Stikosa-AWS, Post-Grad Communication Studies, at Airlangga University.
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