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.