Right to reply must be promoted<\/p>\n
TM Luthfi Yazid, Director, Indonesian Law in Development Research
\n(Inlander), Jakarta<\/p>\n
Recently we have witnessed a number of high profile disputes
\nconcerning the public and the press. These include an incident
\ninvolving businessman Tommy Winata and senior journalist Goenawan
\nMohamad and the Koran Tempo daily. The latter published an
\narticle with the allegedly defamatory title: \"the state must not
\nbe allowed to fall into the hands of thugs\/TW,\" an obvious
\nreference to Tommy.<\/p>\n
Tommy's lawsuit is based on a clause on defamation, as
\nregulated in articles 310 and 311 of the Criminal Code. An uproar
\nensued when the East Jakarta District Court approved the request
\nof the plaintiff to place an asset preservation order (or the
\noriginal Dutch term,conservatoir beslag) upon Goenawan's house in
\nEast Jakarta.<\/p>\n
The classic definition of defamation is, a publication which
\nis calculated to injure the reputation of others by exposing
\nhim\/her to hatred, contempt or ridicule.<\/p>\n
It is important to make the people aware of the right to
\nreply\" or the \"right to defend\" oneself, to counter a press
\nreport. The public should understand their rights -- how to
\nprotect them, how to appeal, or how to counter such reports.<\/p>\n
Furthermore, legal experts say, the first criteria of
\ndefamation through the press is that it is communicated to the
\nreaders.<\/p>\n
One must prove that the concerned words are defamatory, or
\nuntrue, or published maliciously; and whether they have caused
\nspecial damage (Colin Duncan and Brian Neill, 1978). Therefore, a
\nfair defense, or the right to reply can only be made if the
\ndefendant can demonstrate the absolute truth of fact to which the
\ncomment was directed (Ian Loveland, 2000).<\/p>\n
Here, it is still often the case that someone who believes
\nthat his reputation has been damaged by press reports prefers to
\nrespond in person. Such as meeting with reporters or editors,
\nrather than using other channels, such as the right to reply.<\/p>\n
But, there are certainly times when people bring such
\ndefamatory statements to the court, such as in the case of Tommy
\nvs Goenawan.<\/p>\n
There are a few reasons why people fail to take up their right
\nto reply. First, they are not well informed about its essence.
\nSecond, they consider that the press is not neutral. Third, they
\nmay think that the right to reply will not be effective.<\/p>\n
So far, the press has not made an adequate effort to inform
\npeople of the potential effectiveness of this right, due to
\nlimited space allocated to this matter in the media.<\/p>\n
In relation to Act No. 40\/1999 on the Press, the right to
\nreply needs to be disseminated, as the press is obliged to serve
\nthe right to reply (Article 5 A2) as well as the right of
\ncorrection (Article 5 A3).<\/p>\n
Article 5 Paragraph 2, Act No. 40\/1999 on the Press states:
\n\"The press is obliged to serve the right of reply. In addition,
\npress publishing companies that violate the stipulation in the
\narticle's paragraph (2) are sentenced to a fine of maximum Rp 500
\nmillion.\"<\/p>\n
Article 1 states: \"The right of reply is the right of any
\nperson or group of persons to respond or object to news
\nreporting, in terms of facts, that are deemed harmful to the
\nperson or group of persons concerned.\"<\/p>\n
Unfortunately, judges prefer implementing Article 310 and 311
\nof the Criminal Code in such press-related cases rather than the
\nPress Law. The Press Law is more specific than the Criminal Code,
\nhence it follows that the most specific regulation should be
\nprioritized.<\/p>\n
However, many do not realize that journalists are pressed by
\ndeadlines, work in a competitive field and are, therefore,
\nvulnerable to mistakes. Inaccuracies occur because, in the words
\nof Roger Fowler, \"the institutions of news reporting and
\nrepresentation are socially, economically and politically
\nsituated, all news is always reported from a particular angle\".
\nIn other words, it is easy for the media to create \"bias\".<\/p>\n
It is also important to educate readers about the distinction
\nbetween \"news\" and \"views\". News should consist of hard objective
\nfacts, presented without bias, though with an eye to the
\ninterests of the newspaper's readership. Basically, views or
\nopinions can lead to defamation, which is why most modern press
\nlaws provide the mechanism of the right to reply to media.<\/p>\n
Journalism is a profession, therefore a journalist, like a
\ndoctor, is called a professional. If a doctor makes a mistake or
\nconducts a malpractice, then only other doctors have the capacity
\nto examine whether he has violated his ethical profession.<\/p>\n
Therefore journalists' mistakes must be judged by the press
\ncommunity, apart from the public. The press itself should thus
\nunderstand the right of reply. Adequate awareness and knowledge
\nabout the right to reply should make journalists more careful and
\nwiser in their jobs.<\/p>\n
The last resort is of course the courts, in particular when
\nthe media is perceived to have conducted \"trial by press\".
\nHowever, such legal proceedings are expensive and time consuming.<\/p>\n
A better understanding of the right to reply -- on the part of
\nboth the press and the public -- is a preferable option and
\nshould be the first resort, before bringing such matters to the
\ncourts.<\/p>\n
The writer is an alumnus of the School of Law, University of
\nWarwick the United Kingdom.<\/p>",
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