Ariel Looking Down the Barrel: Five on the Inside?

Nazril 'Ariel' Irham the front man for the Indonesian band Peterpan is facing a five-year jail term and a fine of IDR 250 million for his alleged role in a porn distribution racket. The sad part about this case is that it should never have gone to trial. There is no case to answer here. Even with a very novel and creative interpretation of the law it is very difficult to see exactly how Ariel has broken the law as the prosecutors have set out to prove.

This is simply a case of a celebrity making a sex tape, having the tapes stolen, and then watching them wend their way online. The only witness for the prosecution is a man who has everything to gain and nothing to lose in testifying that it was all Ariel's idea. Let's face it, Redjoy uploaded the sex tapes to the internet, of that there seems to be little debate. However, how he came into possession of those tapes is the crux of this case. Simply, the prosecutors have not proved beyond a reasonable doubt that Ariel was a participant in the crime as charged.

The fact that Ariel is the man in the sex tapes is not a crime in and of itself. So, even if the prosecutors were to have proven beyond any doubt that it was Ariel "doing the deed" with Luna Maya and Cut Tari there is no case to answer. This case is solely about the distribution of porn, and the prosecutors have not proven that charge.

The fact that Ariel is a celebrity does not place a larger burden on him to set a good example. If it does, then any public figure must be liable to the same degree. Surely the prosecution is not arguing that there should be one law for the rich and famous and another law for the rest of us, are they?

However, the defense case seems to be hinging on the argument that the anti-pornography law cannot be applied retroactively. This seems to be the weakest of the arguments that they could be making. The simple and best argument is that Ariel was not involved in the distribution of porn. As this seems to be the main thrust of the prosecution case. Irrespective of whether the tapes were made in 2005 or 2006 the production of a private sex-tape between consenting adults is not a crime. So, the production aspect is moot. Once again, this is a case about distributing porn. The tapes were uploaded to the internet in June 2010 and therefore at least in a temporal sense they fall within the gambit of the articles of the Anti-Pornography Law.

I just don't quite get why O.C. Kaligis is harping on the anti-retroactivity angle in preference to just saying "hey, the defendant has not committed any crime!" And, then add "the defense has proved beyond a reasonable doubt that the defendant was not involved in, and did not consent to, the distribution of the sex tapes!"

I guess Kaligis will be making these submissions at the next trial hearing.

Undoubtedly there are divergent opinions on what would constitute a good outcome in this case. But, from a legal perspective it is difficult to see how a conviction could be handed-down. Yet, perhaps more importantly in a legal certainty sense is why the prosecutors have pursued this case with such zeal why letting similar cases fall by the wayside.

Ho hum...

Prita Mulyasari and "That" Defamation Judgment...

There is one thing you can say about Indonesia, justice is a slow process through the courts. On the other hand, unchecked vigilante justice ensures the swift conclusion to almost any dispute! However, that old adage, which I am sure is too cliche now, "justice prevails", has proven true yet again.

Unfortunately, Prita Mulyasari had to wait a long time for justice to be recognised. Good for her, but one must not forget the very many Indonesians whose cases do not attract the same amount of public attention; they continue to languish in the system and without any light to be seen at the end of their nightmarish legal tunnels.

For Prita, her case should never have gone to the courts in the first place. It should not have gone to the courts for the simple reason that there was no case to answer, either criminal or civil. The case does highlight how over-zealous prosecutors can get it wrong, particularly when the ominous specter of case brokers and court mafia appear. That, and perhaps, a suggestion that the "victim" figured any up front case facilitation fees they might have to pay to get this thing off and running would be recouped several times over in any judgment that was awarded to them

The civil suit saw damages awarded to Omni International Hospital to the tune of IDR 204 million. The international here does not seem to relate to the level of service they provide, but more to the scale ..., nah, pet's not go there, I would not want to get sued for defamation or anything!

So, the Supreme Court in its infinite wisdom decided to toss the civil judgment against Prita. Tossing the case means the fine is expunged along with any need to make a public apology in a local rag in Jakarta. Nevertheless, the Supreme Court's decision to toss the civil suit ends only the civil action. The reality is that there is still a pending criminal appeal on which the Supreme Court is to decide (at least as I understand it). Prita's lawyers are bandying around the idea that it is unlikely the Supreme Court will toss the civil case and affirm the criminal case.

On face value, I would agree. But, it is the Supreme Court of Indonesia, the last bastion in many cases of hard-to-explain decisions. Let's face it, the last 48 hours has seen them reignite the KPK war by issuing a ruling that says the case against Bibit and Chandra must continue. It is fair to say the last 48 hours has been a real mixed bag at the Supreme Court.

Once the Supreme Court hands down the decision on the criminal appeal I might be able to close this sorry saga in a blogging sense.

Facebook -- Nude Photos -- Defamation?

This is not an only in Indonesia story as it the 'art' of sexting and sending naughty pictures of oneself happens pretty regularly so it seems. It has been reported that Tiger Woods asked at least one of his mistresses to send him a naughty photo or two. I guess he has more than one mobile phone, otherwise the odds of getting caught out by the wife seem a little on the 'not worth it side'.

Anyways, it has been reported that a 26-year-old civil servant encouraged his 17-year-old girlfriend to send a naughty picture of herself to him. She obliged. The nude photo then found itself uploaded onto a Facebook page. Apparently, the report was that he defamed her. I am not sure that this is the right 'complaint' to be lodging with the police. It would seem that the new pornography law and the information and electronic transactions law would be a little more appropriate. Considering the age of the 'victim' in this case there could be a criminal code angle to explore as well, perhaps along with some child protection issues.

Nevertheless, the nude photo is only part of the problem. It seems that the pair had a sexual relationship and decided that they needed to take some mobile phone footage of their encounters. The boyfriend has been using this footage as a means of keeping the girl his girlfriend by telling her that if she leaves him then he will show the footage to her parents.

Maybe the moral of the story is: do not voluntarily or knowingly allow yourself to be filmed in compromising positions and don't be tempted to send naked photos of yourself to supposed trusted confidantes. Sometimes things just do not work out.

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.

Prita Mulyasari -- The Case Continues...

The Prita Mulyasari case is an interesting one. It is interesting for a number of reasons. First, among these, is the necessity for criminal defamation in Indonesia. Second, was this the right case to test the those criminal defamation provisions. Finally, did the Tangerang District Court err in the manner in which it dismissed the indictments which set Prita free?

I noted in an earlier post that the manner in which the indictments were dismissed left the prosecutors no alternative but to appeal. The reason is simple, the judgment sets a bad precedent. The idea that a law does not come into force until all of the subsidiary or implementing legislation is in place is clearly not the case in Indonesia. The judges in this case have erred in the application of the law.

Even more so when one considers that the article under which the indictment was issued does not require any subsidiary legislation to be effective. This really was a case of putting the cart before the horse. Ultimately, this undermines legal certainty rather than reinforcing it.

Funnily enough when confronted with the fact that the Tangerang Office of the Public Prosecutor were going to appeal this to the High Court in their pursuit of a conviction, Prita is alleged to have said the following, "Is it the prosecutors' personal problem?" I wonder!

Prita's lawyers from the firm of OC Kaligis have stated that if the High Court accepts the appeal, then this would set a bad precedent. I am not sure how it sets a bad precedent as each case is judged on its merits. If the judges believe their is merit in the appeal then that appeal must be granted leave for the appeal to be heard. Prita's lawyers went further to suggest that if the judges accepted the appeal then this is indicative of their arrogance.

In my mind, if the prosecutors did not appeal and the judges did not accept the appeal, then I would argue that both had erred in their duties to the larger community. It is unfortunate that Prita is going to end up as a pawn in this struggle. But, the reality is that the judges fell victim to public outcry and their legal reasoning for dismissing the case is not sound.

The judges would have been better to allow Prita's defense team to present their case and then agree with the submissions of the defense and then dismiss the case because the elements of defamation had neither been made out nor had the prosecution presented sufficient evidence in support of the indictment. And, finally, the defenses to the indictment were made out.

If the judges had done this then Prita would be a free woman and not worrying about an appeal.

I have made the arguments for and against the prosecutors pursuing this case in other posts and they do not need repeating here. If our interested follow the link.

Information and Electronic Transactions

The House of Representatives (DPR) have finally been able to pass the Bill on Information and Electronic Transactions into what will become the prevailing law in this area (Undang-undang Informasi dan Transaksi Elektronik / UU ITE). The Bill first came before this DPR in September 2005 and this is the 96th bill to be passed into law by the DPR since 2004. It is worth pointing out that such a long gestation period is not uncommon for bills wanting to be passed into law. Unfortunately, it is not always the case of better late than never.

Much of the public commentary over the past few days has focused on Article 27(1) which prohibits the transmission, distribution, and the making available of material in an electronic form that breaches prevailing moral standards. However, the bill does not seem to criminalize those that choose to download this morally questionable material unless where once it is downloaded it is then transmitted to someone else.

However, the bill is about so much more than trying to limit the spread of what is considered to be morally suspect material. The bill deals with subject matter such as electronic signatures, electronic contracts, domain names, and electronic transactions. The overriding theme of the bill is to increase legal certainty and security for electronic transactions.

Much of the focus of the bill will not be on what it permits but rather on what it prohibits. In addition to the focus on pornography noted earlier the bill explicitly prohibits any electronic communication that threatens physical violence or strikes fear into the reader of the communication. The potential criminal liability for this is up to 12 years imprisonment and / or fines of up to IDR 2 billion.

Other prohibitions are expected such as the interception and tapping of communications and then the misuse or abuse of personal data. This would include such things as identity theft.

The biggest question that the bill poses is enforcement; particularly where there conceivably are competing privacy rights. The bill is clear as to what is permitted and what is prohibited. Any Internet user is aware of the great amount of anonymity in cyber space and myriad of web logs (blogs) are testament to this.

However, the bill would seem to grant the necessary powers and authorities to search and seize any tools or equipment allegedly used in the commission of an offence. Yet, it must be noted that the bill stipulates that investigators must comply with prevailing laws and regulations as they relate to privacy, confidentiality, the provision of public services, and the integrity of data. Therefore, this must be interpreted as preventing investigators from conducting fishing expeditions for example by requesting all the data of an Internet service provider (ISP) in the hope of finding supporting evidence of a crime.

The definition of what constitutes evidence has been expanded beyond that of the provisions in current legislation to include specifically electronic information and electronic documents.

The world is a very different place than it was 5 years ago, 10 years ago, 20 years ago, or 50 years ago. We as a race of people are well and truly into the electronic age and much of our personal and professional existence relies on sophisticated technology. We can to all intents and purposes live online and never have to physically leave the places that we live, if we wanted to of course.

We can shop online for everything we need and do not need from groceries to books to pornography; we can work online; yes, just about everything we need to do is something that can be done online or electronically. Most of us if we thought about it would be able to identify an occasion where rather than get up out of our office chair and walk to a colleagues office we sent an email instead or an SMS in preference to calling and talking to a colleague or a friend. This in and of itself evidences how much of our lives are now dependent on technology.

We must therefore ask ourselves how safe are we in this virtual world? How safe are our identities? And, How safe are our transactions? If we do not ask ourselves these questions then we expose ourselves to considerable danger. For those that have never considered these issues the government has done so on your behalf and this bill is an attempt to provide regulatory certainty to information and electronic transactions that are conducted using the sophisticated technology now at our disposal.

The world has quickly become a borderless place in the sense that electronic transactions are instantaneous and cross traditional sovereign State lines without ever having to ask for directions or permission. This is in spite of some sovereign states trying to filter information and electronic transactions through selected and approved service providers. Most experts tend to agree that censorship and regulation in this way has often proved ineffective at best.

This phenomenon has given birth to cyber law and this bill fits within Indonesia’s developing cyber law regulatory framework.

A quick scan or reading of the ‘General Provisions’, which in an Indonesian law is usually where all the definitions of the terms are listed, highlights that the bill is about so much more than protecting Indonesians from themselves with respect to the perceived dangers of morally suspect behaviours such as pornography, gambling, and violence.

The definitions include entries for what constitutes an electronic transaction, what constitutes an electronic document, what constitutes an electronic agent, what constitutes an electronic certificate, what constitutes an electronic signature and the authentication and validity of any such signatures used in an electronic transaction, as well as who constitutes a sender and a receiver of an electronic document or piece of information.

Each of these definitions are important as this is a new area of law for most, including practitioners of the law who will ultimately be tasked with prosecuting or defending cases in this field along with the judges who will decide who is in breach of the provisions and who is not.

Article 2 purports to include a degree of extra-territoriality as it explicitly states that the provisions of this law apply to all persons who commit an act against the provisions of this law whether they are within the jurisdiction of the Republic of Indonesia or outside of it provided that the act committed is an offence either within the Republic of Indonesia or outside of it and it causes a loss to an Indonesian interest. The Elucidation to the Law states that the utilization of information technology is trans-national and therefore universal, which thereby allows Indonesia’s jurisdictional reach to extend beyond its physical borders and into the realm of cyber space.

It is likely that this extra-territorial jurisdiction that is proclaimed here is going to be heavily reliant on mutual legal assistance and bilateral extradition treaties.

The basic purpose of the bill is to:
a. to develop a smarter nation able to participate more fully in the world of information;
b. expand national trade and the national economy to improve the social welfare of the citizens;
c. increase the levels of effective and efficient public services;
d. provide broader and greater opportunities for citizens to develop their talents and skills; and
e. to provide security, justice, and legal certainty to users and providers of information technology.

The bill gets straight to the point in Article 5(1) in stating that electronic information, electronic documents, or any printed version of either is to be considered legally valid evidence. However, there are exceptions. In this case if there are certain documents that must be in written form or notarized, then an electronic version of these documents is presumably not acceptable evidence for the purposes of a criminal or civil hearing.

Interestingly, a business person who offers a product via an electronic system is obligated to provide all relevant information associated with the product being offered including any contract conditions, the producer of the product, and the product itself. Furthermore, these types of businesses must be certified by an accredited agency.

Electronic signatures are to be considered the same as any ordinary written signature and consequently binding at law provided it meets certain conditions. Generally, these conditions will require that evidence be adduced that the electronic signature at all relevant times was only under the control of the person who is alleged to be the owner of that signature.

In consideration of the binding nature of an electronic signature, the Law is explicit that any one who is involved in the use of electronic signatures is under a special duty of care to ensure the safety and security of the signature and the identity of the relevant person. Businesses and signature holders must pay particular note to this as Article 12(3) states unequivocally that any breach of the provisions relating to electronic signature exposes the person that causes the breach to be liable for all losses associated with the breach. This includes any legal consequences that arise in addition to the losses accrued.

The critical feature of electronic transactions is that they can be either public or private but in any case they are binding on the parties who are signatories to them. An electronic transaction that binds the parties also allows those parties to choose the forum to resolve any disputes or grievances that may arise in the course of their contractual relationship. This includes court based mechanisms or arbitration or any other form of alternative dispute resolution. It must be noted that where one of the parties is international then the prevailing law is to be International Commercial Law.

As was noted earlier much of the public debate and perhaps much private debate has centered more on what is prohibited under the provisions of the law as opposed to what is permitted. Furthermore, much of this debate has focused on the pornography components to the detriment of other critical prohibitions contained in the Law.

In terms of pornography the target of the legislation is clearly the disseminators, distributors, and transmitters of the offending material as opposed to the downloader of the suspect pictures. Nevertheless, businesses should be aware that for their own protection filters should be installed so that a legitimate claim to making an attempt to restrict access from office servers was made. It was pointed out earlier that historically software filters have been ineffective. This is not the point though.

It might prove for interesting legal argument if a company’s internal server did not block offending material but allowed it to pass through to individual employee inboxes as to whether this would be a breach of the distributing or transmission provisions, particularly if the receiver of the offending material was then to forward it to all their friends back through the internal servers of the company and out into cyber space. It may be better to adopt “a better to be safe than sorry” attitude in this regard.

Aside from pornography the Law also explicitly prohibits gambling, defamation and slander, as well as threats of violence or just threats generally.

Furthermore, the Law prohibits the spreading of lies that are likely to result in a loss to consumers partaking in an electronic transaction. The Law also prohibits the spreading of information that is likely to lead to clashes between groups based on matters of race, ethnicity, and religion, among others.

The Law also explicitly prohibits the sending of threats or other information that is intended to cause fear in the receiver of that information.

Hacking in all its forms are prohibited with the simple provision that prohibits access by any means by anyone to the electronic system of another. This is then elaborated to include specific motivations such as to obtain personal data and information. The Law also prohibits interception of electronic documents and the tapping of electronic communications. These provisions obviously include exceptions in order to facilitate the work of law enforcement.

Piracy in all its forms also is prohibited. This includes the standard prohibitions against the piracy of hardware and software but also includes the reproduction of computer codes access codes, among others.

The Law provides for terms of imprisonment up to 12 years and fines of up to IDR 12 billion for the standard breaches noted earlier. However, where there are aggravating circumstances these terms of imprisonment and fines can be extended by a 1/3 or 2/3 depending on the breach and who it is committed against.

The closing provisions provide that all of the subsidiary legislation that is required to give force to this Law must be issued and enacted no later than two years after the law comes in to force. This law will come into full force once signed by the President or after 30 days from 25 March 2008.

It is clear from the provisions in the new Law that the government is taking seriously the need to regulate in the sphere of cyber space. The reality is that as time passes more and more of peoples’ personal and professional lives will be conducted online. The impact is that over time governments’ are also going to have to provide more and more of their public services online to satisfy the demand of people not wanting to travel to a government office to complete a form or apply for a permit.

This in turn means that there will be vast amounts of personal information, whether it be about individuals or corporations that if abused would conceivably result in very significant losses.

Therefore, this is a responsible piece of legislation. It may not be perfect and some of the imperfections have already been alluded to, but in comparison to a completely unregulated area of law, this is a significant improvement.