DEFAMATION THROUGH SOCIAL MEDIA

Journal Article

Compiled to fulfill the duties of English courses

Composed by:
Raden Muhammad Mukhlasin
8111421769

Fakultas Hukum
Universitas Negeri Semarang
2021
Abstract
Indonesia is a country that has a constitution that safeguards human rights and human rights to
life. As well as honor and a good name in Indonesia are also guarded in the constitution and
whose goods violate them and are subject to criminal offenses. With technology in this decade,
you can see what you want in other media. Behind it, a lot also has been reduced from this
technology. One of them is his defamation and humiliation and honor. At present, the Criminal
Code does not meet the specific article governing defamation. As well as the chest of the ITE
Law there is also nowhere you can see what you want. Especially in someone who has died
where it is very difficult to sue the offender in the case of a nautical name polluter. There is no
specific article governing defamation, reputation, and honor in both the Criminal Code and ITE
law
Introduction
Protection of honor and good name is the human right of every Indonesian citizen. This is
stipulated in the Indonesian constitution, article 28 G paragraph (1) of the Constitution of the
Republic of Indonesia of 1945. Protection of honor and reputation of a person is not only done to
the subject of human criminal law who is still alive but the honor and reputation of someone who
has died are also given protection by existing laws in Indonesia. Along with the rapid
development that occurred, both in terms of technology and democracy caused many violations
of the honor and reputation of someone who was done either orally or in writing, even appeared
cases of criminal contempt against people who had died through social media.
Examples of cases of insults against people having died through social media is an insult
that the author finds on several Twitter accounts where the content insults the former president of
Indonesia who he died, namely Suharto and also K.H. Abdurahman Wahid or others. Better
known as Gus Dur, such as the sentence written in account @sigitfir “Don't turn black to white,
don't turn wolves into sheep, DON'T TURN BASTARDS INTO HEROES #AntiSoeharto”. And
words that gave him a bad reputation. There are no rules that directly govern insults to the dead
through social media resulting in a legal vacuum when there is a criminal offense of contempt
people who have died through social media and most people don't know what they are insulting
to people who have died, moreover, the insult is done through social media, can be Complaints
are made to the police for legal processing.
Literature Review
1. Basis for Establishment of Law Number 11 of 2008 concerning Electronic Information
and Transactions
Indonesia as a country has experienced a lot. Development in all aspects, both in the
economic, political, social, and others, as well as in terms of science and technology or
commonly abbreviated as science and technology in Indonesian called IPTEK. Constitution
Number 11 of 2008 concerning Electronic Information and transactions are formed to fill in
the legal vacuum governing the use of information technology. The ITE law began to be
drafted in March 2003 at the time the government of President Susilo Bambang Yudhoyono
by the Ministry of State Communication and Information (In Indonesia it is called
KOMINFO) who cooperates with the team from three Colleges in Indonesia, namely
 Padjadjaran University (UNPAD) Indonesian State University (UI), and the Bandung
Institute of Technology (ITB) then submitted to the Parliament in 2005. Unpad Team
collaborates with experts from ITB to name the academic script with draft Law on
Utilization of Information Technology, while the team from UI named its academic script
with the Draft Electronic Information and Electronic Transactions Act. Because it happened
to name different bills, then appointed Prof. Dr. H. Ahmad Mujahid Ramli, S.H., M.H as
chairman of the synchronization team then named the academic text the Draft Law on
Information and Electronic Transactions.
When viewed well in an academic script, the consider weighs The ITE law and the
minutes of the Parlament's plenary session on the discussion of the ITE Draft Law, ITE Law
on the basis is a statutory regulation that was formed because new crimes, especially in the
economic field, which done by utilizing technology that has developed rapidly where these
crimes have not been accommodated in positive law Indonesia both by the Criminal Code
and by other laws and regulations.
So that the arrangements regarding criminal acts of humiliation and pollution
reputation in the ITE Law are not specifically regulated as it is in the Criminal Code. The
ITE law only mentions acts that have content of insults and defamation only, not describe in
more detail what actions can be attacked someone's honor and good name.
2. Defamation on social media
The honor and good name of someone who has died are still permanent important to
be protected from acts of humiliation and defamation what others do is because it is solely
intended to protect the honor and good name of the family left behind or expert inheritance
from the deceased person. Proof that protection the honor and good name of a person from an
insulting crime and defamation aims to protect the interests of wari experts from someone
who has died whose honor and good name is insulted contained in Article 320 paragraph (2)
and paragraph (3) and Article 321 paragraph (3) of the Criminal Code. The article shows that
the crime is insulting to people the deceased is a crime of a meal or klacthdelict.
A criminal offense is a new crime that can be committed by prosecution due to
complaints from parties entitled to submit the aduan this is rumored that the personal
interests of the person who is a victim of the offense are greater than the loss rather than the
public interest.
Article 320 paragraph (2) and paragraph (3) and 321 paragraph (3) of the Criminal
Code are rules that state who has the right make complaints when there is a crime of
contempt for people who died. Based on article 320 paragraph (2) and paragraph (3) and
Article 321 paragraph (3) of the Criminal Code, it can be known that which can complain the
criminal offense against a deceased person is a family inbreed or who has a blood
relationship because of ties marriage in offspring that is straight or deviant to the degree
second or husband or wife of the deceased person.
Humiliation is the title of chapter XVI of Book II of the Criminal Code which he
experienced was not explicitly written what was meant by an insulting crime. Some articles
such as Article 310 on defamation (smaad), Article 311 concerning slander (laster) do not
use insulting words. Article 315 contains a crime known as minor insults or also referred to
as modest insults (eenvoudige beleediging). The blasphemy criminal offense provided for in
Article 310 of the Criminal Code is a special form of a criminal offense, therefore if you
want to look for what is meant by insults, then you can also see through the formulation of
blasphemy criminal acts. Under Article 310 of the Criminal Code, an act is said to be a
criminal offense for blasphemy is:
1) The act was done on purpose
According to criminal law, the element of deliberate action is a subjective element
inherent in the criminal offender. Intentional acts are acts that have been realized or have
been known as a result of the perpetrators of the crime. Intentional acts in the case of
criminal offenses or defamation are the perpetrators of the crime of humiliation or
defamation by consciously committing the act. Realizing means that the offender knows
that the action was done it certainly contains a violation of one's honor and good name
even though the offender does not have the intention to insult.
2) These acts attack person’s honor and reputation.
Acts that attack one's honor and reputation in this case are not acts that are
physically carried out by the offender against the victim because the object is not physical
but a feeling of one's honor and good name. Acts of attacking in this case are acts that
give rise to honor and a person's good name becomes polluted.
3) The act is done by accusing something
To accuse something in the crime of humiliation and defamation can be
categorized into 2 things, first is to accuse something clear, both place and time. To
accuse something clear both the place and the time in the offense are called to accuse a
certain act translated from Dutch bepaald feit. Second, accuse something unclear whether
place or time. To accuse something unclear where the time is a minor offense.
4) The act aims to have something to be alleged known to the public
Known by the public in its application must be done carefully because it is
necessary to prove the element of real intent to broadcast. Letting is an act that spreads
something to the public or the public or can be said in public. Public understanding
cannot only be interpreted narrowly, that is, seen by anyone who can be present at the
place where the crime was committed, but must be interpreted broadly that anyone from
a public place can hear it through radio and television media.
Blasphemy in Article 310 of the Criminal Code is a special form of a criminal
offense. The specificity of the blasphemy crime lies in the element of accusing a particular
act that is committed to broadcasting the accusation publicly. Therefore, if the specificity of
the blasphemy crime is eliminated, then what is meant by the criminal offense will be found.
An insulting crime is an act that attacks someone's honor or good name. What is meant by
insults can also be seen through the elements in Article 315 of the Criminal Code regarding
minor insults?
Minor insults on Article 315 of the Criminal Code can be interpreted as acts that
attack one's honor and good name by not accusing something of a particular act or not aiming
to be broadcast to the public but limited to how it is done. These methods can be divided into
three kinds, namely done by oral or public writing, by oral or written in the face of the person
himself, and by letter sent or imitated to the person. Based on the description of Article 310
and Article 315, if the element of specificity of the two articles is removed, then humiliation
is an act of attacking one's honor and good name.
 An act can be categorized as an insult or defamation based on Article 27 paragraph
(3) of the ITE Law, namely:
1) Everyone
The ITE law provides limits on everyone in Article 2. Every person referred to by
the ITE Law is any person who commits a legal act and results in the law both in the
Indonesian jurisdiction and outside the Indonesian jurisdiction which harms the interests
of the Indonesian State. So that every person who is both an Indonesian and a foreign
citizen can be convicted if he fulfills the offense that has been regulated in Article 27
paragraph (3 of the ITE Law includes a legal entity.
2) Intentional
Intentional understanding in the ITE Law is not explained, nor is it in the Criminal
Code. But two theories can be used to determine the element of intentional, namely:
a) The theory of will, in determining an act has indeed been desired by the offender, it
must be proven that the activities carried out are by the motive for the do and the goal
to be achieved. In addition between motives, deeds and goals must have a causal
relationship with the inner perpetrators of crime
b) Knowledge theory, in determining the existence of an element of intention, must be
proven the causal relationship in the mind of the offender between the goal to be
achieved and the motive.
3) Without Rights
The element without rights in Article 27 (3) of the ITE Law is not explained in
detail, but the element without rights in the formulation of this article is an element
against the law. A person has no right to do an act because the act is prohibited, but when
he continues to do the act, he has broken the law while continuing to do the act. It is an
absolute obligation for someone not to disturb others by insulting the person, meaning
that someone does not click on the right to disturb others by insulting.
4) Distribute, transmit and make accessible electronic information or electronic documents
The element of distributing, transmitting, and making electronic information
accessible in article 27 paragraph (3) of the ITE Law is clear enough to regulate the
actions that are carried out.
5) Has a charge of humiliation or defamation.
This element is what the author says is unclear because the concepts of
humiliation and defamation in this article are not explained in the explanation of the law.
If seen in the explanation of article 27 paragraph (3) of the ITE Law, it is also only
written quite clearly. Though when seen in the Criminal Code where the regulation was
formed during the Dutch Colonial government, crimes against honor and good name are
not as sophisticated as they are at the moment, however, arrangements regarding criminal
offenses of humiliation and defamation are regulated in detail by dividing criminal
offenses of humiliation and defamation into seven kinds. The concept of humiliation and
defamation in the Criminal Code has differences.

The humiliation regulated by the Criminal Code, in Article 315, has an element of
specificity. The element is "not accusing something of a particular act or not aiming to be
broadcast to the public but limited to how it is done". Whereas specificity in defamation or
the Criminal Code is also known as blasphemy is "by accusing a particular act and aiming to
be broadcast to the public". So it is clear that the differences in the concepts of humiliation
and defamation in the Criminal Code, but the differences in this concept are not found in the
ITE Law, because the ITE Law only regulates criminal acts of humiliation and defamation in
general and is only contained in one article.
Although article 27 paragraph (3) of the ITE Law is unclear in regulating the issue of
criminal acts of humiliation and defamation, the crime of humiliation and defamation of
people who have died can still be convicted. The Criminal Code as a lex generalis can be
used as a legal basis for ensnaring perpetrators of criminal offenses against people who have
died, namely by using Article 320 and Article 321 of the Criminal Code. Whereas the ITE
Law which is lexed species is used as a legal basis for ensnaring perpetrators of insulting
crimes against people who have died through social media regarding the means and media
used to commit these crimes. This can be used as an alternative step when there is a criminal
offense against people who have died through social media, given the Criminal Code which
regulates the criminal offense of insults to people who have died has limitations in terms of
the means and media used, namely through information technology. Whereas the ITE Law
governing information technology issues has limitations in terms of criminal offenses and
defamation.
Related to the limitations of the Criminal Code in regulating the methods and media
used by perpetrators of criminal offenses against people who have died, Article 320 of the
Criminal Code does not directly mention how and what media can be used to do offenses
against people who have died, because in Article 320 the Criminal Code only mentions "....
committing an act that if the person is still alive will constitute written pollution or
pollution ...", therefore, in examining the ways and media used in the offense of the deceased
must look at the offense, namely in Article 315. As explained earlier, insults to Article 315
can be done in three ways namely verbally and in public upfront writing, verbally and in
writing on the person's face, and through letters sent or imitated to him, based on this, in
contempt of a deceased person, the way is done verbally, writing or by sending or receiving a
letter to the victim.
Based on that, the method used in criminal offenses against people who have died
both in the Criminal Code and the methods used in criminal offenses of the ITE Law is
essentially the same, that is, making the general public aware of the writing, picture,
information that has the burden of humiliation and defamation.
In addition to the methods used by perpetrators of criminal offenses against people
who have died, Article 320 and Article 321 of the Criminal Code also regulate media in
criminal acts of contempt for the deceased, but as in the manner carried out, the media in the
Criminal Code are also limited. Article 320 and Article 321 of the Criminal Code state that
acts can be said to be an insult to a deceased person if the media in the form of pictures or
writings contains insults to a deceased person. The drawings and writings referred to in
Article 320 and Article 321 of the Criminal Code are pictures and writings in physical form.
Therefore, the Criminal Code has not been able to accommodate criminal acts of contempt
for people who have died through social media, because of the limited Criminal Code in the
regulation of the means and media used by utilizing information technology.
The ITE law regulates media used in criminal acts of humiliation and defamation that
have not been accommodated in the Criminal Code, namely, electronic agents as distributors
 of electronic information. Article 1 number 8 of the ITE Law states that electronic agents are
devices of an Electronic System that are made to take any action on a particular Electronic
Information automatically organized by people. Whereas electronic information based on
Article 1 number 1 is one or a set of electronic data, including but not limited to writing,
sound, picture, map, draft, photo, Electronic data interchange (EDI) electronic mail
(electronic mail) telegram, telex, telecopy, or the like, letter, sign, number, Access Code,
symbol, or perforation that has been processed which has meaning or can be understood by
people who can understand it. Based on the understanding of electronic agents in the general
provisions of the ITE Law, electronic agents can be a set of computers, handphones, tablets,
and other electronic objects capable of sending electronic automation that can be in the form
of pictures, writing, sound, photos, and others. Social media such as Facebook, Twitter, path,
etc. that have been described in the previous chapter, are an application in electronic agents
as a means to communicate with others, to send or exchange electronic information such as
photos, pictures, writing, and others. When there is an insult to people who have died through
social media, in this case, insults to people who have died are only regulated in the Criminal
Code whose media arrangements are limited to description and writing, then the ITE Law
can be used as a legal basis in the case of media used in criminal acts of contempt for people
who have died through social media.
It is hoped that the media regulated in the Criminal Code and the ITE Law, namely
pictures, photographs, and writing, etc. are the same, but have different dimensions. If the
Criminal Code is only physical, then the media in the ITE Act is virtual, even in the ITE Act
it is also not only limited to pictures, photos, and writing but also includes such as sound,
telegram, telex, symbol, numbers, letters, etc. as stated in Article 1 paragraph 1 of the ITE
Law.
Based on the results of the discussion, the author believes that when there is an insult
to the deceased the offender can still be convicted even if done through social media. This is
maintained that the manner and media in the criminal offense provided for in Article 27
paragraph (3) The ITE Law and Article 320 and Article 321 of the Criminal Code have
similarities, the reader is in the ITE Law the way and media in committing criminal offenses
is done by utilizing information technology, while the methods and media regulated in the
Criminal Code are done verbally, writing and by letter sent or animated. The legal basis used
to ensnare perpetrators of insults to people who have died through social media can use
Article 27 paragraph (3) ITE article 320 and Article 321 of the Criminal Code. Article 27
paragraph (3) is used as a legal basis regarding the manner and media used to commit
criminal offenses, namely social media, whereas Article 320 and Article 321 of the Criminal
Code are used as a legal basis for the type of humiliation carried out by the offender, that is,
insults to people who have died. Whereas criminal sanctions can use Article 45 paragraph (1)
of the ITE Law.
Conclusion
Based on this analysis, the first problem can be concluded that the ITE Law is a statutory
regulation established to be the legal basis for economic activity or economic activity, which is
carrying out such activities or activities that utilizes information technology. The ITE law is not
purely a criminal law, but laws that have criminal sanctions, so that the criminal arrangements
for insults and defamation that utilize information and communication technology are only
referred to in general and are not specifically regulated as in the Criminal Code. In addition, in
the ITE Law, no article states that criminal acts of humiliation and defamation are acts of dual
crime like the one in the Criminal Code.
The second problem regarding the midwife of someone who commits an insulting crime
against someone who has died through social media, the author concludes that the arrangement
of the criminal offense which is only mentioned "has a burden of humiliation and/or defamation"
in the formulation of article 27 paragraph (3) ITE Law, make the article governing the issue of
crimes against honor unclear. So when there is a criminal offense against people who have died
through social media, there is no statutory regulation that accommodates the crime in one rule.
Unregulated insults to people who have died through social media do not necessarily make the
perpetrators of these crimes unable to be convicted. The author believes that the criminal offense
of insults to people who have died through social media can still be convicted by using existing
laws and regulations in Indonesia, namely Article 320 and Article 321 of the Criminal Code
junction Article 27 paragraph (3) ITE Law. Article 320 and Article 321 of the Criminal Code are
made as a legal basis for the type of humiliation, in this case, is an insult to a person who has
died, whereas Article 27 paragraph (3) The ITE law is made the legal basis for the media used to
commit criminal offenses, in this case, social media.
Suggestions
The author provides advice to several parties related to this research. For the Police and
Prosecutors' Office, when you get a complaint that there is a criminal offense against a person
who has died, then it can use existing laws and regulations in Indonesia, namely Article 27
paragraph (3) ITE Law junction Article 320 and Article 321 of the Criminal Code. For
legislators, the author gives some suggestions as follows:
1) Re-take a re-trial and amend Law Number 11 of 2008 on Information and Electronic
Transactions specifically Article 27 paragraph (3) regarding insults and defamation so
as not to regulate criminal acts of humiliation in general, so there is no interpretation
of different rules.
2) Include rules that explain whether the criminal acts of humiliation and defamation in
the ITE Act are a quip or not a quip.
3) Compile new laws and regulations governing the issue of humiliation and defamation
carried out by utilizing information technology, so that Indonesia has special
regulations regarding criminal acts of humiliation and defamation.
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