Since the enactment of Law Number 11 Year 2008 on Electronic Information and Transactions as amended by Law Number 19 Year 2018 on Amendment to Law Number 11 Year 2008 on Electronic Information and Transactions (“ITE Law”) many incoming complaints and reports to the Police are using ITE Law.
Reported from tirto.id in their article titled “How Small the Opportunity to Escape from the Snare of the ITE Law – Betapa Kecilnya Peluang untuk Lepas dari Jerat UU ITE”, from data collected since the first appearance of the ITE Law in 2008 to 26 June 2018 there are several reports and complaints related to the ITE Law, and the peak was in 2016 with 83 reports. 1
Still from the same article, there are at least 6 (six) articles used by the Rapporteur. Namely Article 27 paragraph (1) and paragraph (3), Article 28 paragraph (2), and Article 29 ITE Law. Besides ITE Law, the Rapporteur also reports the Reported with articles contained in the Indonesian Criminal Code (“ICC”), namely Article 156 of the ICC, Article 310 and Article 311 ICC. ((Ibid.))
Since 2008 until the end of 26 June 2018, 49.72 percent of the article used as the basis for reporting was Article 27 of the ITE Law paragraph (3) which regulates about defamation. 2
Article 27 paragraph (3) ITE Law stated:
Any Person who knowingly and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Documents with contents of affronts and/or defamation.
The second most used articles as a legal basis are Article 310 and Article 311 ICC with a total of 74 times used or as much as 20.9 percent. This article regulates the matter of insult related to intentionally attacking someone’s honor or reputation.
Article 310 ICC stated:
(1) The person who intentionally harms someone’s honor or reputation by charging him with a certain fact, with the obvious intent to give publicity thereof, shall, being guilty of slander, be punished by a maximum imprisonment of nine months or a maximum fine of three hundred rupiahs.
(2) If this takes place by means of writings or portraits disseminated, openly demonstrated or put up, the principal shall, being guilty of libel, be punished with a maximum imprisonment of one year and four months or a maximum fine of three hundred rupiahs.
(3) Neither slander nor libel shall exist as far as the principal obviously has acted in the general interest or for a necessary defense.
Article 311 ICC stated:
(1) Any person who commits the crime of slander or libel in ease proof of the truth of the charged fact is permitted, shall, if he does not produce said proof and the charge has been made against his better judgment, being guilty of calumny, be punished by a maximum imprisonment of four years.
(2) Deprivation of rights mentioned in Article 35 first to thirdly may be pronounced.
The third most used article is Article 28 paragraph (2) ITE Law which is used 60 times or 16.95 percent. This article regulates everyone not to disseminate information aimed at inflicting hatred or dissension on individuals and/or certain groups of community based on ethnic groups, religions, races, and inter-groups (SARA). 3
Article 28 paragraph (2) ITE Law stated:
Any Person who knowingly and without authority disseminates information aimed at inflicting hatred or dissension on individuals and/or certain groups of community based on ethnic groups, religions, races, and inter-groups (SARA).
After the above Articles, there are still several other Articles which are often used in police reports. Among others are Article 156 ICC 4 with 2.82 percent, Article 29 ITE Law 5 with 2.26 percent, Article 27 paragraph (1) 6 ITE Law 1.13 percent, and other articles with 6.21 percent. 7
Articles about defamation contained in Article 27 paragraph (3) ITE Law and Article 310 ICC, both articles are categorized as a crime by accusation. The difference between a crime by accusation and general criminal offense according to Drs. P.A.F. in his book “The Basics of Indonesian Criminal Law – Dasar-Dasar Hukum Pidana Indonesia” is:
“A crime by accusation is a criminal offense that can only be prosecuted if there is a complaint from the offended party. Whereas general criminal offense is a criminal offense that can be prosecuted without the need for a complaint.”
Articles that can be classified as a Crime by Accusation in the ICC other than Article 310 ICC are Article 322, Article 332, and Article 369 ICC.
Besides that, what we need to be considered is the issue of statute of limitations, in ITE Law itself there are no provisions on statute of limitations in reporting criminal acts, and therefore we need to look up to the provisions in ICC.
Article 74 ICC stipulates that:
(1) The complaint may only be filed within six months after the person authorized to file the complaint has knowledge of the committed act, if he is domiciled within Indonesia, or within nine months after he has knowledge of it, if he is domiciled outside Indonesia.
(2) If at the moment when the person against whom the crime has been committed is authorized to file the complaint, the term referred to in the first paragraph has not yet expired, he shall be competent to file the complaint after that moment only during such time as the term remains.
Based on the description above, it can be concluded that the period for filing or reporting a criminal act of defamation is 6 (six) months if domiciled in Indonesia, while for those domiciled outside Indonesia are 9 (nine) months.
Hope it is useful,
FREDRIK J. PINAKUNARY LAW OFFICES
- Betapa Kecilnya Peluang untuk Lepas dari Jerat UU ITE, Scholastica Gerintya, 30 August 2018, https://tirto.id/betapa-kecilnya-peluang-untuk-lepas-dari-jerat-uu-ite-cVUm
- A maximum imprisonment of four years or a maximum fine of three hundred Rupiahs shall punish the person who publicly gives expression to feelings of hostility, hatred or contempt against one or more groups of the population of Indonesia. By group in this and in the following Article shall be understood each part of the population of Indonesia that distinguishes itself from one or more other parts of that population by race, country of origin, religion, origin, descent, nationality or constitutional condition. –Article 156 ICC
- Any Person who knowingly and without authority sends Electronic Information and/or Electronic Documents that contain violence threats or scares aimed personally. –Article 29 ITE Law
- Any Person who knowingly and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Documents with contents against propriety. -Article 27 paragraph (1) ITE Law
- Betapa Kecilnya Peluang untuk Lepas dari Jerat UU ITE, op cit.