EYE ON ETHICS

This article was first published in the September-October 2009 issue of the PJR Reports.

Mr. Basorie teaches journalism at the Dr. Soetomo Press Institute (Lembaga Pers Dr. Soetomo, LPDS) in Jakarta, Indonesia.
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(The media situation in the other countries of Southeast Asia is no less complex than that in the Philippines, as the following account of a free expression case in Indonesia reveals.)

It took the mother of two under-fives to unintentionally raise a public debate on the threat to freedom of expression by a new electronic information law. Prita Mulyasari, 32, had landed in the Tangerang Women’s Correctional Facility for e-mailing a complaint to friends on Aug. 15, 2008 about the hospital service she had received. The private e-mail got into numerous mailing lists. It reached the hospital concerned and the hospital sued her for libel.

The Omni International Alam Sutra Hospital in Tangerang, Banten province, a two-hour drive West from Jakarta, filed the complaint. The police compiled a dossier. The Tangerang prosecutor’s office, using the Criminal Code and the 2008 Electronic Information and Transactions (ITE) Act, indicted her. The Tangerang District Court found her guilty in a civil case last May 11. Officers from the prosecutor’s office picked her up at home and brought her to prison last May 13.

When the news media got wind of the case, a public outcry ensued. Sympathy surged among bloggers and Facebook users. Her forced separation from her three-year-old son and one-year-old daughter was a strong emotive factor. Netizens demanded Prita’s release.

The event occurred during an Indonesian presidential campaign, and all three presidential candidates got into the act and called for fairness. Pending a criminal case hearing last June 4, the district court released her “for humanitarian reasons” last June 3, but Prita must stay within city limits.

The case of Prita Mulyasari versus the Omni International Alam Sutra Hospital has become a cause célèbre, a much publicized legal issue. Four questions emerge. What was Prita’s complaint about in her private e-mail to friends? Does the hospital have the right to file a lawsuit and claim an offense has been committed against it? Was the use by the Tangerang prosecutor’s office of the Electronic Information and Transactions Act (ITE) appropriate? Are the articles in the Act as applied by the prosecuting attorney an infringement on freedom of expression?

The ITE articles cite acts liable to prosecution. This act is on the transmission of electronic information with libelous content (Art. 27, paragraph 3). The penalty for this offense is six years in prison and/or a one billion rupiah fine or approximately $106,000 (Art. 45).

What was Prita’s complaint about in a private e-mail to friends that allegedly contained elements of libel? Prita’s e-mail bore the heading “Fraud at the Omni International Alam Sutra Hospital, Tangerang.” The e-mail “gives a bad impact,” hospital lawyer Risma Situmorang said. Prita’s e-mail was sent out on Aug. 30, 2008. She had entered the Omni hospital Aug. 7 with a headache and fever.

Her complaint was that she was not fully advised what her ailment was and what medication she had been given. Her condition became worse and she switched to another hospital. She claimed the doctors at Omni lied to her concerning a medical record the hospital said was sent to Prita’s home but Prita insisted she did not receive. Upon questioning, the hospital told Prita the receipt was signed by a certain “Rukiah”, but Prita said there is no Rukiah at her home.

The Omni hospital issued a statement on Sept. 8, 2008 denying Prita’s claims. Several news outlets picked up the statement. The hospital said Prita’s e-mail “is not true and not in line with the facts that actually took place.” The letter further said that Prita’s “irresponsible actions” had “damaged the good name” of the hospital and that of two staff doctors.

The letter was a general statement of denial and expressed the intent to take legal action against Prita. But it did not respond to and did not clarify item by item the specific complaints that Prita had detailed in her e-mail.

Prita is charged under Article 310 of the Criminal Code on defamation. A conviction can lead to a maximum sentence of 14 months in prison. She is also charged with Article 311 of the Criminal Code on defamation in writing, libel, and that carries a maximum four-year jail sentence. On top of that, the ITE Act was also thrown at her.

Did the hospital have the right to sue a former patient for defamation? None of Prita’s supporters denied outright that the hospital has this right. However, it is arguable whether words like “fraud” and “lying” constitute defamation. Perhaps Pres. Susilo Bambang Yudhoyono summed it up best. He suggested to authorities that in enforcing the law they also use their conscience and a sense for justice.

Was the use of the ITE Act by the prosecutors appropriate? Attorney General Hendarman Supandji said the Tangerang prosecutors were “unprofessional” in drawing up the indictment. He unceremoniously removed the Banten province chief prosecutor who reportedly was directly involved in the Prita case.

Are the articles in the Act an infringement on freedom of expression? Freedom of expression advocates said the Act should in no way diminish the people’s freedom of expression. Its provisions should be used proportionately so that freedom of expression as defined by the Constitution is guaranteed outright, said Ifdhal Kasim, chair of Indonesia’s National Commission for Human Rights.

Ifdhal said Prita’s case is unique. Her complaint about the hospital was in a private communication that spread into the public domain. “Due to this, she should not be so unquestionably arrested just because her message entered the realm of the public. Further, there was no intent to damage a good name”, he told reporters.

Patra M. Zen, chair of the executive board of the Legal Aid Institute Foundation, said the authorities must look at the question of intent. Prita’s letter does not appear to contain any intent at defamation, Patra believes. Ifdhal and Patra agree the government should review the law so that its control mechanism does not cut back on the rights of citizens.

Last May a group of press freedom advocacy non-governmental organizations (NGOs) including the Press Legal Aid Institute (LBH Pers) and the Alliance of Independent Journalists (AJI) petitioned for a judicial review of Article 27 of the ITE Act by the Constitutional Court, the arbiter for complaints on the laws of the land. The Court rejected the petition in a May 4 ruling. Defamation or false accusations by electronic means is possible, reasoned Constitutional Court chief Mahfud M.D. But the application of the ITE Act must follow the Criminal Code, he contended during a press briefing.

No follow up judicial review is possible. However, the government and the House of Representatives (DPR) could initiate an amendment to the law.

Any amendment should specify whether electronic information transmitted privately and not released to a public domain can subject the sender or authors to indictment. Second, even if the information does enter the public sphere, the question is whether there is a clear case of malice so that legal action can be brought against the accused. If the final goal is to uphold freedom of expression, the lawmakers could move to erase Art. 27 and 45 of the ITE Act as well as Art. 310 and 311 in the Criminal Code. In effect, decriminalize libel and make it a civil offence only.

However if the articles are upheld, the lesson learned from the Prita case is that e-mail writers/senders, whether complaining or not complaining about a public service, should be mindful if their message contains any libelous wording.

Meanwhile, health minister Siti Fadilah Supari told the media that if a member of the public is dissatisfied with the health service obtained, she or he can complain to the head of the local health service. If the dissatisfaction persists, the person concerned can complain to the Indonesian Medical Honors Council.

On June 25 the Tangerang district court threw out the prosecutor’s indictment and ruled in Prita’s favor. In a provisional decision, the panel of judges said the ITE Act is not applicable until April 21, 2010, two years after it became law. (Art. 54 of the ITE Act stipulates, however, that the law is effective from the time it was enacted. The following paragraph in that Article states that government regulations relating to the Act must be in place within two years after the law’s enactment at the latest). The prosecutor has appealed. Prita is free, but her case and the case for freedom of expression await final closure.

Meanwhile the High Court of the province of Banten overruled the Tangerang District Court that acquitted Prita Mulyasari. In a July 27 decision, the high court ordered the lower court to reopen the case. It faulted the district court for dropping two Criminal Code Articles on defamation and for misinterpreting Article 27, paragraph 3, of the 2008 Electronic ITE, also on defamation. The high court determined that the ITE Act is already in force and need not wait for the issuance of implementing regulations two years after the passing of the Act, which was the basis of the district court’s acquittal of Prita.

The Tangerang district court reopened the trial of Prita Mulyasari last Aug. 19. No verdict has been reached as of this writing.