Media law needs a full overhaul

Media law needs a full overhaul

By A. Muis

UJUNGPANDANG, South Sulawesi (JP): Rapid changes in social and
technological developments over the last few years have made the
existing press law obsolete and archaic. It can no longer
adequately protect the freedom of the press from arbitrary and
devastating treatment by the authorities and society, or
guarantee legal certainty for anybody involved in the national
press system.

The existence of the "global village" -- cyber communications
or cyberpress -- also demands that Indonesia revise its press law
to pave the way for the press to freely disseminate information
globally.

The Indonesian press is now regulated by Press Law No.
21/1982, which revised laws No. 4/1967 and No. 11/1966.

Amending the press law will mean the formation of a new legal
package for the national press and imply the revision of the
penal code, especially its articles governing the press, the law
on defamation and articles XIV and XV of Law No. 1/1946. There
are, for example, several articles in chapter II of the penal
code and the 1946 law which need to considered for adjustment.

The revision also will call for the removal of Article 117a of
Law No. 1/1995 regulating limited liability companies.

In fact, a new press law should incorporate Article 19 of the
universal declaration on human rights regarding the freedom of
information and implement the concept of freedom of information
and communication stipulated in Article 28 of the 1945
Constitution.

The 1966 press law, the law on defamation and articles XIV and
XV of Law No. 1/1946 are inconsistent with Article 28 of the
Constitution and Article 19 of the universal declaration on human
rights concerning freedom of information.

Article 28 guarantees freedom of information and communication
without the need of any previous license, but such freedom must
be subject to the consequences of laws, namely the penal law as
civil law.

This article says that freedom to unite, to get together and
to express opinion by speaking (in an oral form) and by writing
is determined by law. The freedom of communication may not be
limited through censorship, bridling and regulations called
prepublication penalty. The article is actually in accordance
with Article 19 of the universal declaration on human rights.

Consequently, the law on defamation (haatzaai artikelen) in
Book II of the Penal Code (1918) -- e.g. articles 154-155 and
207-208 -- should be regarded as against Article 28 of the
Constitution, and would be no longer applicable according to
Article V of Law No. 1/1946.

In fact, articles 310 to 312 on libel and slander of the penal
code also run counter to Article 28 of the Constitution because
they have the nature of the precommunication penalty. These
articles do not allow a defendant, a journalist, to prove the
truth of his/her accusation to the plaintiff or his/her
slanderous or libelous utterance.

Also, the formulation of articles XIV-XV of Law No. 1/1946 are
too wide or unmeasurable in nature. This penal law could have
been applied by the police in the case of the publication of
taped telephone conversation purportedly between President B.J.
Habibie and Attorney General Andi Muhammad Ghalib, transcripts of
which were published by Panji Masyarakat magazine and several
other mass media.

The law on defamation and articles 154-155 and 207-208 of the
penal code are called formal mass communication offense because
they do not allow a defendant or mass communicator to prove the
truth of the slanderous or libelous utterance which was made
openly.

In short, the law on defamation and the law of libel/slander
must be removed. Otherwise, they will be harmful to the newly
established freedom of the press in this country. At the very
least, the formal nature of the laws must be changed into
nonformal ones, e.g. the mass communicators as defendants must be
permitted to prove the truth of their defamatory messages,
information or news/statement.

Even the code of enterprise is no longer relevant because the
press enterprise is not separated from the media as the channel
of information.

Articles XIV-XV of Law No. 1/1946 have to do with a
communication theory in which a journalist may be forced to act
as a gatekeeper to filter news at the expense of the free flow of
information and the public's right to know.

In relation to the theory of gatekeeping, there is the
prevailing problem of partisan press or mission. Some newspapers,
tabloids and magazines have become party-bound or party-directed
press. When the press becomes party bound or party directed, it
involves a problem of independence. However, there are mechanisms
that must be observed by journalists, namely news value, the
formulation of the 5 W + H, professional code of ethics, rights
of fair comment and criticism, rights of reply and correction
that enable the press to be more just and fair in publishing
news. Therefore, it is incorrect to prohibit journalists from
becoming political party leaders or members of political parties.
Prohibition is also against the principle of press freedom as a
human right.

Still, the amendment of the press law implies improvement in
the field of judicial institution. Empowering the court is a must
to enable it to maintain a fair trial.

What is the meaning of freedom of the press? Freedom of the
press stands for freedom from licensing, constraints, censorship
and other kinds of prepublication penalties. The press must only
be subject to postpublication penalties; the freedom and control
of the press should be balanced; and freedom carries concomitant
obligations. While on the one hand the press must have freedom
from licensing, censorship and restrictions, it should on the
other hand provide equal freedom for the society to make use of
news columns -- the editorial columns belong to the editors. The
phrase "freedom for" stands for the rights of the audience to
acquire true, accurate and reliable information from the press.

The meaning of press freedom also includes free access to
information sources. It follows that information sources have the
obligation to be open to the press except for personal privacy
and "off the record" events/issues.

Furthermore, press freedom implies acceptance of modern
journalism like investigative reporting, interpretative reporting
and participatory journalism or "truth-as-I-see-it reporting".
News dissemination must be transparent. In fact, freedom to
inform is not identical to information's transparency.

As the era of a global village has come into being, the
national press system has no choice but to accept a global
communication culture. In fact, what is coined the national press
system is nothing more than the subsystem of the global press
system. This phenomenon could be identified by looking at the
news preference by the mass media. At least 50 percent of the
news column is occupied by foreign news. "Global village" is
identical to the news value of global proximity.

Basically, press freedom, in that very broad sense, implies
the fourth estate theory. As the press plays an important role as
the fourth estate, the law should provide freedom for the press
accordingly. But how does the fourth estate work? Simply, it has
to act as a watchdog for the implementation of democracy and for
the practice of the government.

In this era of reform, the national press ought to play an
important role as an agent of reform. As such, the press also has
the right to act as a watchdog to effectively control the
government and to carry out surveillance of the environment in
that the press warns the society of imminent danger. It follows
that society must always be made vigilant in terms of ever
increasing dangers surrounding it.

Being an agent of reform, a watchdog and the fourth estate,
the press is also in charge of maintaining the peace and
productivity of the society, as Prof. Siebert pointed out.

Finally, there rises a question whether the national press has
abused its freedom leading to the violation of both the laws and
cultural norms, as many people argued in recent time.
Unfortunately there is no unanimous perception regarding the
measurement or indicator of "freedom abuse".

While many people are of the opinion that the press has
substantially abused its freedom in the euphoria of freedom, the
Ministry of Information argued against the criticism.

Society has its own standard to appreciate the practice of
press freedom in this era of reform. From the point of view of
the mass communication law, however, abuse of freedom of the
press implies violation of either the penal law or civil law.

The writer is a communications law professor at Hasanudin
University in Ujungpandang, South Sulawesi.