Defamation law lurks, will Indonesia be barren of reviews?

All Stella Monica wanted was sharing her experience after receiving treatment at a beauty clinic, but now she has to undergo legal proceedings because she is sued for defamation.

Stella’s skin reportedly flared up with pimples after trying beauty products. She then searched for a beauty clinic for treatment. From the recommendations, Stella chose L'Viors clinic in Surabaya.

Stella then underwent treatment for approximately nine months, from January 2019 to September 2019. According to Safenet, in October 2019 Stella decided to stop the treatment because she suspected that her skin became dependent on medicine provided by the clinic and began consulting another doctor.

This was where the problem began. Stella uploaded her conversation with the new doctor to her Instagram story (December 2019). In the content, Stella told the story about her inflamed skin after undergoing treatment. The content was met with responses from her friends who apparently experienced a similar incident due to treatment at the same clinic.

The treatment Stella underwent at L'Viors included injection to treat difficult acne. There were times when she was late to redeem the medicine, which caused the acne to return. This was where the suspicion about dependence arose. The new doctor she consulted said that her acne worsened due to dependence on the medicine and it will take one year to heal.

A month later, Stella received a legal notice from the legal representative of L'Viors. Stella is deemed to have framed the clinic for sharing negative-toned comments from her friends. Due to Stella’s content, L'Viors received numerous calls asking about Stella's complaint.

L'Viors' legal representative explained that if Stella was not satisfied with the treatment, she should have lodged a complaint to her attending doctor instead of blaming the clinic on social media which can be commented on by anyone. That is because people who commented do not necessarily understand the problem.

In an interview with The Finery Report, Stella explained that at that time, her Instagram account was on a private or locked mode, so only those who followed her would have been able to see her posts. At that time, Stella had approximately 2,000 followers. She said L’Viors’ statement that her post could be seen by all Surabaya residents is not true because she only posted on Instagram.

To this date, the legal proceedings are still ongoing at the Surabaya District Court. As of 21 October, 2021, the public prosecutor charged Stella with Article 27 paragraph (3) jo. Article 45 paragraph (1) of the ITE Law. This charge caused controversies among the public.

Anindya Sabhrina, the spokesperson of the Consumer Defenders Community Coalition (KOMPAK), in an interview with The Finery Report explained that the charge is not fair. This is based on the facts that: first, Stella did not disclose the name of the clinic.

"It's not right that Stella is being punished for reviewing a beauty product because she only uploaded a rant," Anindya said. “This is the same like when we confide in our friends through group chats. Stella uploaded that type of conversation,” she explained. Stella is not doing a review and does not mention the name of the clinic.

Second, Anindya saw that the ruling used by the prosecutor as a reference or jurisprudence was not correct because the case, experienced by the drummer of Superman Is Dead, Jerinx, bears a different charge. Jerinx was charged with Article 28 paragraph (2) jo. Article 54 A paragraph (2) of the ITE Law related to SARA (ethnicity, religion, race and inter-group relations), while Stella was prosecuted for defamation as regulated in Article 27 paragraph (3) of the ITE Law.

The defamation article is part of the offence of defamation regulated in Article 310-Article 321 of the Criminal Code (KUHP). It is clear that this is a different act compared to the definition of hate speech charged against Jerinx.

In addition, in the evidence examination phase of the trial, Stella presented a criminal expert witness, Ahmad Sofian, who assessed that Stella's actions could not be charged with the ITE Law because there is no criminal element in it. The prosecutor also does not describe the elements of Article 310 and Article 311 of the Criminal Code as the basis for reference to Article 27 paragraph (3) of the ITE Law as explained in the joint ministerial decree (SKB) on the ITE Law.

Guidelines for the implementation of Article 27 paragraph (3) of the ITE Law SKB state that it is not considered defamation if the distributed content is an assessment, opinion, evaluation result, or a fact.

The ITE Law SKB also explains that the type of complaint adopted by Article 27 paragraph (3) of the ITE Law is absolute complaint, which means that only the victims can file a complaint. The victims recognised by the law are individuals, not corporations. This is the third injustice, according to Anindya, because the complaint was made by L'Viors, a business entity.

The focal point in Article 27 paragraph (3) of the ITE Law is on the action of the perpetrator who intentionally distributes information that attacks a person's honour, not the feelings of the victim. Therefore, what should be the topic of attention is Stella's intention when sharing her story: was it intended to attack the honour of L'Viors, or was it just a consumer who shared her opinion.

SuaraSurabaya reported that L’Viors’ legal representative, HK Kosasih, stated that charges against Stella should have been heavier because her actions resulted in significant material losses for the clinic. According to him, this will create a deterrent effect for Stella and other people so that they will be wise in using social media.

In addition to problems related to defamation, Stella's complaint should also be studied from Stella's position as a consumer. Anindya explained that "all reviews submitted by consumers are protected by law, especially the Consumer Protection Law". This is regulated in Article 4 letter d of the Consumer Protection Law which states that consumers have the right to have their complaints heard about the goods/services used.

To this date, no decision has been made by the court.

Correction: The year stated in the first sentence of third paragraph ‘Stella then underwent treatment for approximately nine months, from January 2019 to September 2020’ is supposed to be 2019. We have edited the mistake.