01 August 2009

Prita Mulyasari -- Defamation -- To Be Retried...

This is unfortunately one of those cases where one just knows what is going to happen before it actually happens. It would also seem that the Banten High Court reads The RAB Experience, but this would not seem to be the case for Prita and her legal team.

The Banten High Court has ordered the Tangerang District Court to retry the defamation case against Prita Mulyasari. This may have come as a surprise to some, but the reality was that in a strict legal sense the decision could not have been any other way. Simply, the Tangerang District Court erred in the manner in which it dismissed the indictment against Mulyasari (news).

The Banten High Court held in its decision to send the case back to Tangerang for trial was that the decision of the Tangerang District Court was unlawful. In essence, this means that the legal reasoning provided to justify the dismissal of the case in the first instance was wrong. The Chief Judge of the Banten High Court, Sumarno, was unequivocal in stating that the Tangerang District Court erred in its judgment.

The debate on the legal reasoning can probably be found in lots of places. However, I wrote about it here and here. However, although the earlier comment about the judges of the Banten High Court reading The RAB Experience was somewhat tongue in cheek, the legal reasoning of the panel of Banten High Court judges explicitly stated that the error of the Tangerang District Court judges was the belief that the Information and Electronic Transactions Law does not come into force until 2010.

The lawyer for Prita Mulyasari, Slamet Yuwono, might be keen to test the defamation provisions himself, as he went on the record to say that, "... I just hope that the high court judges were not compelled by anything other than legal considerations." Ah, Slamet, compelled by what exactly? A small fee from the Office of the Public Prosecutors or the Omni International Hospital? Unfortunately, Slamet, refused to elaborate on what the suggestion was.

The Information and Electronic Transaction Law is contentious. It is contentious not because of the date the law comes into force. It is not contentious as to whether the definition of defamation is clear or not. It is not contentious because the Law provides a two-year window for subordinate or subsidiary legislation to be put into place to give effect to or clarify certain articles. However, it is contentious for the simple reason that Indonesians are currently engaged in a debate about the validity and usefulness of criminal defamation provisions in any law.

The contentious nature of the Law is whether criminal defamation is a means to an end. That is, is the Law a means of stifling legitimate free speech and expression? Further, and perhaps even more important to some, is whether this case highlights the way in which big business can bury consumer complaints about the services received by the consumers themselves?

A quick read of the Letters to the Editor pages of most Indonesian newspapers will see Indonesians writing letters of complaint about one thing or another. Usually about the notoriously bad service provided by banks and financial institutions, and quite often this is to do with credit cards. What the Mulyasari case has shown to date is that big business no longer need to respond to complaints but rather use their vast financial reserves to bankrupt their customers or at least use the threat of doing so.

Going forward. The Tangerang District Court now has no choice but to revisit the Mulyasari case and hear the arguments from both sides. The only way that Mulyasari is victorious here is if her legal team can prove that what was written was not defamation in the manner in which defamation is defined in the Information and Electronic Transactions Law. If they can then the Court can once again dismiss the case and Mulyasari will be free to go on about her life.

Nevertheless, and at the risk of raining on the parade, this is a test case and no matter what the outcome of the retrial, it seems clear that both sides would be likely to appeal if they are on the wrong side of the verdict. This is a case that is going to be tied up in litigation for a good while longer yet.

That said, the only way this would end quickly is if Mulyasari gets the verdict and the Office of the Public Prosecutor in Tangerang declines to appeal the verdict. Judging the performance of prosecutors to date, it would seem that they are intent on seeing this one through to the bitter end. They want a conviction or they are going to die trying.


lawby said...

Excellent update.

you wrote:

.......for the simple reason that Indonesians are currently engaged in a debate about the validity and usefulness of criminal defamation provisions in any law.

Ok, that may be so.

Can I ask, is it possible that Criminal defamation will one day be amended out of the Electronic Transactions Law (by the way do the parallel acts in Oz include criminal defamation?)? I assume that under the Criminal Code unelectronic defamation remains and will remain?

(Do I recall that Prita lost the civil defamation case?)

I feel sure that you believe that big business et al can and does use the defamation laws here to maim critics, but you fall short of saying it. Perhaps elsewhere you have addressed the extent to which you feel that defamation should remain on the law books generally, but being one who seems so enamoured of free speech I would like to hear your opinion again.

Have you studied Prita's letter for elements of defamation: which seems to have become lost in this debate?

Anonymous said...

I listened to Metro English TV news yesterday - a 40 second report on the Prita case.

I would hazard a guess that the report included at least errors of fact.

What is worse one wonders? false reporting (a form of fraud or negligence) or defamation?

I am reminded of what Brett said - I was a lawyer but I hate litigation. It left a powerful impact on me.

lawby said...

Sorry, the anon above was me.

Not to waste a box..........

In her last trial, would you say that Prita was "acquitted"? in the true sense of the word?

Rob Baiton said...


Anything is possible. I am not convinced that it will be or that it needs to be. There are plenty of democracies that still have criminal defamation provisions on their statute books.

The problem is not generally the provisions but their application. The problem here in the Prita Mulyasari case is that the purpose of the provisions was, supposedly, not really to capture unhappy housewives like Prita.

Then again, sustainable arguments can be made that this indeed was the intent of the parliament.

Australia has criminal defamation provisions on its statute books. If I recall there was a recent case in WA.

I do not think that defamation turns on the electronic and non-electronic element. A much more basic definition is in use. Generally, requires publication, and the medium is not irrelevant but not the primary concern.

In the Gutnick case, the issue was where publication occurred when the defaming material was published on a website.

Yes, Prita lost the civil case. I believe it was to the unhappy tune of IDR 312 million (about USD 30K).

Yes, I have looked at the letter. Yes, arguments that it defames can be made. However, whether the statements are in fact defamation is a matter of fact that the court must decide. In any event, there are defenses to defamation.

I don't know that it matters in the sense of what is worse; defamation or false reporting. Both are wrong, aren't they? The difference for me would seem that there is a defense to defamation. I am not sure what the defense is to knowingly airing false reports.

Not all lawyers are litigators.

NO, I do not believe Prita was acquitted in the true sense of the word.

Simply, the decision was subject to appeal. If the highest court in the land acquits her of the charges and there are no further avenues for appeal or the prosecutors lose the retrial and decide not to pursue the case on appeal, then yes, Prita would have been acquitted.

lawby said...

I know I seem pedantic...

From JP today:

....Prita Mulyasari and Omni International Hospital as Banten High Court has overruled the acquittal of Prita, the defendant in a recent widely publicized online defamation case.

Do you agree with the use of word "acquital" here?

In view of this:

The legal battle seemed to be over when the court bowed to public pressure and decided to drop all charges against Prita on June 25. Prosecutors Rachmawati Utami and Riyadi then appealed. (is appeal the correct word here?)

On Thursday, Banten High Court ordered Tangerang District Court to reopen the case, saying the court's verdict only explained why they had dropped Article 27 of the ITE law from the prosecutors' charges but gave no explanation as to why they had dropped the two Criminal Code articles. ....

.......which is an informative paragraph.

For me at least it important to get the terms right, which is not easy for me, and perhaps others.

Rob Baiton said...


Acquittal is the right word to a degree. However, when one talks about a court of first instance a "true" acquittal as you refer to depends entirely on there being no appeal.

The idea of a true acquittal seems dependent on there being a final ad binding decision by a court of law. Final and binding, at least in my mind, is when there are no avenues remaining where an acquittal can be made.

Selective reporting would be my guess. I would imagine the written decision is a little more comprehensive. The JG has quotes suggesting that the Chief Judge talked about the idea of when a law comes into force as part of the reason for the decision to send the case back to Tangerang.

Generally, prosecutors do that. That being whack all the charges into one place and then wind them back to the most likely to succeed. The ITE and KUHP provisions together to my mind is overkill.

The terminology problem might be because the journalist is not a regular crime reporter or something. I do not know for sure on that. You will note that most of the law reporters on TV and in the newspapers here are generally well-versed in the law and the terminology. Indonesia will get there I am sure.

Final point. I am pretty sure that I wrote somewhere that the problem with the initial Tangerang District Court decision was that it seemed to fall victim to public pressure.

Maybe the second time around they can get it right! Then again...

Anonymous said...

Check out the australian today for case in point

Rob Baiton said...


Sorry to trot out the standard fare for anonymous posters. I would much prefer my anonymous posters to adopt a pen name. Only so that I can distinguish you one from the other.

Now, which article in particular (online link or page number).


oigal said...

Sorry Rob..Anon was me..technology got me again..Article was on oz's most repugant Islamic Representatives..I see you have laready posted..

Rob Baiton said...


No dramas, and yes.