At the beginning of 2020, Indonesians were bombarded by the news regarding Sunda Empire, a solidarity that has been active since 2017. Based on the news, Sunda Empire has around 1000 followers from West Java to Aceh. Their activity then was under surveillance and in the end, they’re processed by the police. One of their leaders, Rangga Sasana, was arrested by the Directorate of Investigation of General Crime of the Regional Police of West Java in Tambun, Bekasi, on Tuesday, 28 January 2020. Rangga Sasana now has become a suspect with the allegation of publishing or spreading fake news through the activities conducted and information spread by Sunda Empire. Besides Rangga, the police also arrested Nasri Bank who claimed himself as the prime minister of Sunda Empire and Ratna Ningrum who claimed to be the Emperor of Sunda Empire.
How does Indonesian Law regulate the act of publishing/spreading fake news or what is known as a hoax? The following is the explanation.
According to Oxford Dictionaries the word “Hoax” means: “A humorous or malicious deception.“
Under Indonesian dictionary, the definition of Bohong (hoax) and Tipu Muslihat (Crafty Artifice) may be found on pages 147, 664 and 1079 of the General Dictionary of the Indonesian Language (Kamus Umum Bahasa Indonesia) compiled by W. J. S. Poerwadarminta, namely:
Bohong (hoax) is defined as something not consistent with the prevailing situation; lies, falsehood.
Tipu is defined as the act of lying, falsehood for the purpose of misleading or deceiving.
Muslihat is defined as lying through ploys or tactics. Hence, the level or degree of severity or wrongfulness of Tipu Muslihat (Crafty Artifice) is greater than merely Bohong (hoax), since the word Tipu (lie) itself already incorporates Bohong (hoax), hence Tipu Muslihat means an act of fraud perpetrated through a certain ploy or tactic, which is therefore a greater crime in Indonesia than mere Bohong (hoax).
Indonesian laws and regulations have never recognized the term hoax, but some regulations have a provision that regulates hoax or fake news. The leaders of Sunda Empire are declared suspects under the regulation concerning the prohibition of spreading fake news according to article 14 and article 15 of the Law regarding the Regulation of Criminal Law (“Law No 1/1946”) as follows:
Article 14 of the Law No 1/1946
1. “Any person, by spreading fake information or news, intentionally causes public unrest, shall be sentenced with imprisonment at a maximum of ten years.
2. Any person who publishes news or making information which may cause public unrest, while it can reasonably be suspected that such news or information is fake, shall be sentenced with imprisonment at the maximum of three years.
Article 15 of the Law No 1/1946
Any person who publishes news that is uncertain or exaggerated or incomplete, while it is understood or at least reasonably suspected that such news may cause or is already caused public unrest, shall be sentenced with imprisonment at them maximum of two years.
Article 14 and Article 15 of Law No 1/1946 is a copy and addition to Article 171 of the Criminal Code which is part of Chapter V of the code that regulates public order and also part of Book II regarding Criminal Offence. At first, there was only one provision under Article 171 of the Criminal Code which states “Any person who spreads fake news, intentionally causing public unrest shall be sentenced with imprisonment at the maximum of one year and fine with the maximum of Rp. 300.00 (three hundred rupiah).“ This provision is still retained and only its sentence is amended. While the provision of paragraph (2) of Article 14 of the Law No 1 / 1946 was originally from the Verdodening Militair Gezag which was enacted on 21 May 1940 with modification to its redaction and elements. The formulation in the Verdodening Militair Gezag states that “any person by spreading misleading news or information intentionally causes public unrest shall be sentenced with imprisonment at a maximum of ten years.” The provision of Article 15 of the Law No 1/1946 is a new formulation.
Furthermore, the crime of spreading fake news or hoax is also regulated in Article 28 paragraph (1) of the Law Number 11 Year 2008 regarding Electronic Information and Transaction (“EIT Law”) as amended with Law Number 19 Year 2016 regarding the amendment of the Law Number 11 Year 2008 regarding Electronic Information and Transaction (“Law No 19/2016”) which regulates the spreading of fake news in electronic media (including social media). The provision states:
“Any person intentionally, and without right spreading fake and misleading news which causes consumer loss in Electronic Transaction”.
If violating Article 28 of the EIT Law, the perpetrator may be sentenced with the penalty as stated in Article 45A paragraph (1) of the Law No 19/2016, as follows:
“Any person intentionally, and without right spreading fake and misleading news which causes consumer loss in Electronic Transaction as referred to in the Article 28 paragraph (1) shall be sentenced with imprisonment at a maximum of 6 (six) years and/or fine at a maximum of one billion rupiah.”
The action stated under Article 28 paragraph (1) of EIT Law is considered as a prohibited act under the EIT Law. The EIT Law does not define “fake and misleading news.” However, if we examine further the EIT Law and its amendment, specifically regulates provisions related to hoax (fake news) which causes consumer loss in an electronic transaction.
The criminal act of spreading fake news or hoax is also regulated under Article 390 of the Criminal Code which regulates a similar issue but with a slightly different formulation, by using the phrase “publishing fake news.” Article 390 of the Criminal Code states the following:
“Any person who, with the intent to benefit himself or other person, unlawfully reducing or increasing a price of a commodities, funds or securities by publishing fake news, shall be sentenced with imprisonment at the maximum of two years and eight months.”
According to Criminal Law Expert, R.Soesilo in his book titled Kitab Undang-Undang Hukum Pidana (KUHP) serta Komentar-Komentarnya Lengkap Pasal Demi Pasal (the Criminal Code and its complete commentary) (page. 269), suspect can only be sentenced under Article 390 of the Criminal Code, if it can be proven that the news he publishes is considered fake news. Moreover, what constitutes as fake news is not only publishing empty news, but also telling incorrectly about an event directly or indirectly.
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES