The Distribution of Pornography -- The Case Against Ariel...

You really do have to wonder about the intent in this case. When it is all said and done this is a case of a two videos shot by consenting adults. Are there moral issues to be considered in a case like this? Perhaps, but the charges that Ariel has been charged with are not moral ones, they are criminal.

The charges relate exclusively to the distribution of the videos themselves. Nevertheless, it may be argued that the use of the 1951 Emergency Law  is intended as a "catch-all" charge that will allow prosecutors to take the moral route and claim that Ariel has violated some existing customary or traditional law that applies in Indonesia.

So far, only Ariel and Cut Tari have been charged. The most controversy over this relates to the use of Law No. 1 of 1951. The Emergency Law was clearly not drafted for this purpose. Contextually the 1951 Law relates to a period of Indonesian history where it was experimenting with its unique form of Sukarno-ist constitutional democracy and trying to untangle itself from myriad of Dutch created laws and norms and replace them with some of their own.

Funnily enough, in 2010 it could still be argued that the process is an ongoing one! Luna Maya, the other amateur porn star involved in these tapes has so far evaded charge. She used to star in an advertisement for Lux soap, perhaps there is a pun to be had here in relation to her ability to keep herself clean of charges.

So, what is Ariel really looking at here. The main charge relates to Article 29 of the Anti-Pornography Law (and for some reason the similar provision under the Information and Electronic Transactions Law), Article 56 of the Criminal Code and Article 5(3) of the 1951 Emergency Law.

The Anti-Porn law provides for a 16-year jail sentence for the distribution of pornographic material. Whereas the ITE law only allows for a 6-year sentence. This is standard prosecutorial procedure in a case where one is not so sure of what crime has been committed, so charge the same offense in myriad of ways ranging from the most serious to the least serious and with a bit of luck maybe one of them will stick somewhere along the line.

What is interesting about this case, aside from the stupidity of pursuing it, is that the police still have not been able to establish an accurate timeline of the event relating to the videos, particularly when the Cut Tari video was filmed. The police have also seemingly not been able to nail down exactly where it was shot either. Strangely enough there is some discussion that the video may have been shot in 2005, or perhaps 2006, or maybe even as recently as 2010...Ouch!

Oh well. Back to Ariel and his dilemma or lack thereof with the current charges. The primary charge seems to be that he was actively involved with the distribution of the videos. The police are apparently basing their entire case on the testimony of one man, Redjoy or Reza. Redjoy has piped up that he received the tapes in the form of computer files with the express instruction to prepare them for upload to the internet. According to Redjoy's testimony, these files were provided by Capung Studio. Capung Studio happens to be the studio that Ariel owns in Bandung. What seems to be missing from most reports on this transaction is whether it was Ariel himself that handed the files over to Redjoy.

This is going to quickly degenerate into a he said vs. he said scenario. Ariel, despite Cut Tari's admission to the contrary, has yet to acknowledge that it was him in the video. However, that aside, it has been consistently argued by the alleged amateur porn stars that they were the victim of a crime themselves, theft. And, it was this theft that saw the files wend their way online. Now, it would seem that if Redjoy was involved in the theft then it would make sense to start claiming that no theft happened but rather the files came into his possession through Ariel, or someone linked to Ariel, for the purpose of uploading the files for the enjoyment of the world over.

The trial seems destined to proceed. It would be a real turnaround for the prosecutors to fold on this case now. The trial will be in West Java, Bandung to be precise, so their should be a steady stream of infotainment journalists making their way to Bandung.

This is going to be messy.

Ariel and Miyabi (and Luna Maya and Cut Tari -- Possibilities)...

No, no, no!

It is not what you are thinking or what you are hoping for. There is no new tape of Ariel and Miyabi to add to the "Ariel Does Everyone He Can" collection. This is a story about Ariel getting some support from someone all to familiar with the attitudes of some Indonesians to sex and sex tapes, particularly for celebrities. Although, to be fair, Miyabi (aka Maria Ozawa) makes making sex tapes her professional calling. As far as I can tell, Ariel is still an amateur film maker and producer learning the trade.

If you want to read about Miyabi and her exploits, or lack thereof, in Indonesia, then I suggest you use the search feature for this blog. There are plenty of posts and plenty of photos, happy hunting. If you want to read a little about Ariel and his sex-capades then you will find most of them have been posted this month, so just look in the right hand column under 'July 2010', happy hunting there as well.

This post includes some 'safe' screencaps of some of the sex tapes out there at the moment. They are available over at Asia One.

Now, according to Miyabi, the moral police should not be judging Ariel or his exploits too harshly. In fact, she has used Twitter and 'tweeted' that people should not judge a book by its cover. I am not sure what she means by that, but perhaps she is referring to Ariel's sexual prowess and abilities as highlighted rather explicitly on the tapes. Or she might be referring to something else.

The best part about the Miyabi tweets is that she has expressed an interest in getting to know Ariel better. So, it seems that if things do not work out in Indonesia, there seems to be an opening in Japan that Ariel might be able to fill (no pun intended). Miyabi does think that Ariel is handsome and that "his girls" are good looking. This does sound like it has potential for a major film!

Luna Maya Returns to Twitter...

What is it with this grabbing the dog from behind picture. Everywhere one goes looking for a Luna Maya picture, this is one of the first ones to appear...





Luna Maya (@lunmay) has returned to the Twittering fold and reactivated her account on the microblogging site. I guess this means you cannot keep a good woman down, even if you lodge a criminal defamation complaint against her?

The Luna Maya fiasco erupted when some infotainment journalists became a little over-zealous in their pursuit of the interview and photo that we mere mortals crave in our daily celebrity fix. During the ensuing free-for-all Ariel's (the boyfriend of LM) little girl was clocked in the head with a camera or something. This led to the famous tweet comparing infotainment journalists to prostitutes and murderers. Subsequently, the Luna Maya Twitter account disappeared after a short apology was posted.

But, it is back! There have been no new tweets apparently. Apparently is because I do not tweet or twitter and I am going on what others have said. Ah, the beauty of second hand information.

What is interesting is that the Minister of Communication and Information, Tifatul Sembiring, has come out and said that the Information and Electronic Transactions Law that the Indonesian Journalists Association (PWI) is using as the basis of its criminal defamation claim was not drafted not designed for this sort of criminal defamation action.

According to Sembiring, the ITE Law was drafted and is designed to prevent computer related crimes such as credit card fraud and hacking., That said, it would seem that Article 27 also seems to open the door for arguments that the ITE Law also conceives that criminal defamation might also be a crime within the scope of the law.

As usual, a Luna Maya post lends itself to some gratuitous picture posting.

Liberty...

Every law is contrary to liberty.

-- Jeremy Bentham (1748 - 1832)
Principles of the Civil Code (1843)

This undoubtedly applies to every nation and every individual in the world. However, I post it here as I have been thinking about the pending criminal trial of Prita Mulyasari and the recent Twitter spat of Luna Maya and the use of the Information and Electronic Transactions Law (ITE Law) in Indonesia.

I am particularly interested in the different ways that journalists view this law as a restriction on free speech. The Alliance of Independent Journalists (AJI) in Indonesia has campaigned against the law whereas the Indonesian Association of Journalists (PWI) has decided to use the provisions of the law to file a criminal defamation complaint.

These are indeed interesting times in which we live.

Prita Mulyasari -- Defamation -- The Retrial...

The Prita Mulyasari defamation case, or perhaps "saga" is a better word, continues with the retrial commencing in the Tangerang District Court yesterday.

This case really does not contain enough legal issues of consequence for the prosecution to be pursuing this as some sort of test case for the provisions on defamation in the Information and Electronic Transactions Law or for that matter the overlap of those provisions with the ones contained in the Indonesian Criminal Code.

The saga is probably worth a PhD thesis, maybe it could be mine.

Brett over at Spruiked is always a man on a mission, and the Prita case is one he is quite vocal about.

If anything the case highlights the severe need for ongoing or continuing legal education in order to ensure that all legal practitioners are up-to-date with current legal developments and practice. Simply, this was not the case to run as a test case. Even more interesting is that in the retrial the prosecution has decided to lead with expert testimony from a linguist who admits on the stand that he has no real conceptual understanding of what defamation is in the legal sense.

The expert testimony of the linguist was simplistic at best; the contents of the email could be considered defamatory because there was a sentence that questioned the professionalism and politeness of the hospital staff. Ah, OK. But tell me you have more!

The idea that doctors can be unprofessional and hospital staff can be rude and impolite is hardly a revelation. There are probably more people floating round in the world who have a bad story to tell about the way they were treated in a hospital than those that have a good story to tell.

A visit to a few Australian websites and a good read of some of the news there would highlight that it is not uncommon for hospitals to be criticized for their poor service and professionalism. There have been a spate of recent cases over the last few years of women miscarrying in hospital toilets as they were made to wait for treatment.

The idea that Prita was treated unprofessionally and impolitely is not some kind of out of the ordinary shocking development. In any event, and as I have always maintained, even if by some magical alignment of the stars her email was defamatory, then the best course of action to defend the charge would be that the statements contained in the email are the truth.

The reality here is that Prita was diagnosed with dengue fever at Omni and after becoming fed up with the treatment she was receiving at Omni, checked herself out and into another hospital where she was diagnosed with mumps, treated and subsequently got well. At least, this is how I understand it. I am sure that if that is an incorrect understanding someone will inform me of that. And, then I will make a note here (as a postscript).

The fact of the matter is when you are sick and you go to the doctor you are expecting that the doctor will get the diagnosis right and treat you. A misdiagnosis can sometimes happen but all the same a misdiagnosis is a misdiagnosis and in that sense it is not unreasonable to question the professionalism of the doctor involved.

Anonymous Blogging, Wordpress, and the Prophet

This story is a couple of days old and I have been too lazy to write about it before. However, I figured I should as I have recently made a presentation relating to the recently enacted Information and Electronic Transactions Law (ITE Law).

The story is that there is an anonymous blogger in town and they are posting a comic strip of the Prophet Muhammad which has riled the sensibilities of many Muslims. What caught my attention was the headline in the Jakarta Post which reads "Govt to pressurize Wordpress into disclosing blogger's ID". I am not sure that pressurize is the right word for this sentence. I am guessing that it is like terrorizing using pressure to get a pressurize situation.

The language choices aside, there are just a couple of points that are worth making here.

If you think that you are anonymous then make sure that you are smart enough to know how to use the technology to make it so. The government is demanding that Wordpress reveal the identity of the blogger because the content of the offending blog is deemed to be a cyber crime. The threat is that if Wordpress does not disclose the blogger's identity then the National Police Force's Digital Forensic Lab is going to get involved and uncover the blogger's identity themselves.

It seems that there is still a fair amount of road to be travelled in terms of what constitutes free speech and freedom of expression, particularly in light of Article 27 of the new ITE Law.