Right to reply must be promoted

Right to reply must be promoted

TM Luthfi Yazid, Director, Indonesian Law in Development Research
(Inlander), Jakarta

Recently we have witnessed a number of high profile disputes
concerning the public and the press. These include an incident
involving businessman Tommy Winata and senior journalist Goenawan
Mohamad and the Koran Tempo daily. The latter published an
article with the allegedly defamatory title: "the state must not
be allowed to fall into the hands of thugs/TW," an obvious
reference to Tommy.

Tommy's lawsuit is based on a clause on defamation, as
regulated in articles 310 and 311 of the Criminal Code. An uproar
ensued when the East Jakarta District Court approved the request
of the plaintiff to place an asset preservation order (or the
original Dutch term,conservatoir beslag) upon Goenawan's house in
East Jakarta.

The classic definition of defamation is, a publication which
is calculated to injure the reputation of others by exposing
him/her to hatred, contempt or ridicule.

It is important to make the people aware of the right to
reply" or the "right to defend" oneself, to counter a press
report. The public should understand their rights -- how to
protect them, how to appeal, or how to counter such reports.

Furthermore, legal experts say, the first criteria of
defamation through the press is that it is communicated to the
readers.

One must prove that the concerned words are defamatory, or
untrue, or published maliciously; and whether they have caused
special damage (Colin Duncan and Brian Neill, 1978). Therefore, a
fair defense, or the right to reply can only be made if the
defendant can demonstrate the absolute truth of fact to which the
comment was directed (Ian Loveland, 2000).

Here, it is still often the case that someone who believes
that his reputation has been damaged by press reports prefers to
respond in person. Such as meeting with reporters or editors,
rather than using other channels, such as the right to reply.

But, there are certainly times when people bring such
defamatory statements to the court, such as in the case of Tommy
vs Goenawan.

There are a few reasons why people fail to take up their right
to reply. First, they are not well informed about its essence.
Second, they consider that the press is not neutral. Third, they
may think that the right to reply will not be effective.

So far, the press has not made an adequate effort to inform
people of the potential effectiveness of this right, due to
limited space allocated to this matter in the media.

In relation to Act No. 40/1999 on the Press, the right to
reply needs to be disseminated, as the press is obliged to serve
the right to reply (Article 5 A2) as well as the right of
correction (Article 5 A3).

Article 5 Paragraph 2, Act No. 40/1999 on the Press states:
"The press is obliged to serve the right of reply. In addition,
press publishing companies that violate the stipulation in the
article's paragraph (2) are sentenced to a fine of maximum Rp 500
million."

Article 1 states: "The right of reply is the right of any
person or group of persons to respond or object to news
reporting, in terms of facts, that are deemed harmful to the
person or group of persons concerned."

Unfortunately, judges prefer implementing Article 310 and 311
of the Criminal Code in such press-related cases rather than the
Press Law. The Press Law is more specific than the Criminal Code,
hence it follows that the most specific regulation should be
prioritized.

However, many do not realize that journalists are pressed by
deadlines, work in a competitive field and are, therefore,
vulnerable to mistakes. Inaccuracies occur because, in the words
of Roger Fowler, "the institutions of news reporting and
representation are socially, economically and politically
situated, all news is always reported from a particular angle".
In other words, it is easy for the media to create "bias".

It is also important to educate readers about the distinction
between "news" and "views". News should consist of hard objective
facts, presented without bias, though with an eye to the
interests of the newspaper's readership. Basically, views or
opinions can lead to defamation, which is why most modern press
laws provide the mechanism of the right to reply to media.

Journalism is a profession, therefore a journalist, like a
doctor, is called a professional. If a doctor makes a mistake or
conducts a malpractice, then only other doctors have the capacity
to examine whether he has violated his ethical profession.

Therefore journalists' mistakes must be judged by the press
community, apart from the public. The press itself should thus
understand the right of reply. Adequate awareness and knowledge
about the right to reply should make journalists more careful and
wiser in their jobs.

The last resort is of course the courts, in particular when
the media is perceived to have conducted "trial by press".
However, such legal proceedings are expensive and time consuming.

A better understanding of the right to reply -- on the part of
both the press and the public -- is a preferable option and
should be the first resort, before bringing such matters to the
courts.

The writer is an alumnus of the School of Law, University of
Warwick the United Kingdom.