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.