Risk of libel in freedom of the press<\/p>\n
Patrick Guntensperger
\nBusiness consultant
\nJakarta
\nttpguntensperger@hotmail.com<\/p>\n
One of the cornerstones of a democratic society is a free
\npress. Freedom of expression is therefore, one of the very first
\nfreedoms to be curtailed when a democracy is being undermined,
\neither as a prelude to a coup d'etat or as an early step in the
\nprocess of gradual tyrannization.<\/p>\n
Those of us in the business of the dissemination and exchange
\nof ideas tend to support the more extreme versions of press
\nfreedom while those concerned with law and order and the security
\nof the existing regime lean towards a more restrictive
\ninterpretation (assuming they support the concept at all). Not
\nsurprisingly, this issue is one that Indonesia is grappling with
\nduring the exhilarating process of democratization. It is right
\nand just that freedom of the press should be a contentious issue;
\nthere are compromises that must be made in implementing it and
\nevery compromise represents a cost.<\/p>\n
On the one hand, few thoughtful people would support the
\nconcept of absolute freedom of expression. The hoary example of
\nshouting "Fire!" in a crowded theater comes instantly to mind.
\nMost of us would agree that there ought to be limits on our
\nfreedom of expression for the simple safety of the public.<\/p>\n
Another abuse of the freedom of expression would be to make a
\nfalse statement of fact that others could be expected to rely
\nupon when making a decision to purchase something. If an
\nautomobile manufacturer were to claim his car came equipped with
\nan airbag and the purchaser found out after an accident that the
\nclaim was false, surely that would be an abuse of free
\nexpression.<\/p>\n
It would probably be fair to say that most Indonesians would
\nconsider it an abuse of free expression if they were to buy a
\nfood product advertised as being consistent with Islamic dietary
\nlaw only to find out after having consumed it that it was made
\nfrom pork. One cannot simply be free to say whatever one wishes
\nregardless of the consequences.<\/p>\n
On the other hand, no believer in the principles of liberty or
\ndemocracy would accept that those principles are consistent with
\nthe arrest and fining or incarceration of a journalist who
\npublishes an opinion critical of an incumbent leader. True
\nbelievers in the fundamental principles of democracy would agree
\nthat the press should be free to criticize, object to, exhort,
\nrail against and recommend alternatives to the current power
\nstructure. Government control over the press is not consistent
\nwith democracy. Unless the truth has an outlet for expression,
\nthe people would be insufficiently informed to be able to
\nexercise their democratic right to decide among the candidates at
\nthe polls.<\/p>\n
But therein lies the key to helping us find a comfortable spot
\nbetween the rock of totalitarianism and the hard place of
\nabsolute freedom. Truth.<\/p>\n
If truth is considered by the courts to be the ultimate test
\nof all claims of fact, we have a starting point for laying a
\nfoundation of laws governing freedom of speech and, by extension,
\nthe press.<\/p>\n
Libel is the publication of information or statements
\ndamaging to a person's reputation. Such is a dictionary
\ndefinition. A reasonable libel law, however, permits one absolute
\ndefense..that the statement was the truth.<\/p>\n
A journalist therefore would be within his rights to report
\nthat a politician is corrupt, if he was able to support the
\naccusation with objective evidence. On the other hand, that
\nofficial could reasonably file a libel suit if there was no truth
\nto the statement. A civil court could then determine the level of
\ndamage caused, if any, by an accusation that was determined to be
\ngroundless and award appropriate damages to the victim of the
\nlibel, including punitive damages, if the court was of the
\nopinion that there was sufficient malice to justify punishment as
\nwell as compensation.<\/p>\n
The upshot of these measures and countermeasures is this: In
\norder to be considered libelous and deserving of judicial censure
\nand punishment, a published statement must actually be damaging
\nto a person's reputation (merely ruffling a VIP's sensitive
\nfeathers isn't sufficient), it must be false and it must have
\nbeen maliciously intended.<\/p>\n
If the statement's publication meets all these conditions,
\ncivil measure may be brought to bear. And significantly, contrary
\nto the instinctive beliefs of politicians, it ought to b e harder
\nto win a libel case against someone who has commented on a public
\nfigure than someone who is accused of libeling a private
\nindividual. Being a public figure is a choice, and choosing
\npublic life entails choosing a higher degree of scrutiny and a
\nhigher standard of behavior. No one is forced to run for public
\noffice.<\/p>\n
There is no need for the criminal justice system to step in
\nwhen what is at issue is a statement concerning the character of
\na public official. If a journalist merely sates that, in his
\nopinion, a public official is objectionable, but makes no factual
\nclaims, the official in question simply has to accept that an
\nopinion is being expressed. He is, of course, free to disagree
\nwith it and express a contrary opinion. That is the nature of
\npublic life. And that is the nature of freedom.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/risk-of-libel-in-freedom-of-the-press-1447893297",
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