Sending someone to prison on flimsy evidence for sending WhatsApp messages critical of a company will have a disastrous and chilling effect on free speech. – Andreas Harsono, Indonesia Researcher
Jakarta – Indonesia's Judiciary Commission should review the prosecution of Saidah Saleh Syamlan for criminal defamation in the Surabaya district court, Human Rights Watch said today.
On February 26, 2019, the court sentenced Syamlan to 10 months in jail for defamation for allegedly sending four WhatsApp messages to two banks regarding a company's performance. She denies sending the messages. The Indonesian government should repeal criminal provisions that restrict peaceful free expression online.
"Sending someone to prison on flimsy evidence for sending WhatsApp messages critical of a company will have a disastrous and chilling effect on free speech," said Andreas Harsono, an Indonesia researcher. "The Saidah Syamlan case shows that criminal defamation laws are open to manipulation by people with political or financial power who can influence the behavior of investigators."
Syamlan's husband, Aziz Hamedan had long been the finance director of Pisma Textile but retired in 2016. The WhatsApp messages are four short sentences, in Javanese language, sent on June 23, 2017, separately to two bankers in Jakarta – Eximbank Indonesia and Bank Negara Indonesia officials – that questioned the credibility of Pista Textile, a well-known textile company that makes sarongs.
The messages came from Syamlan's former phone number. Jamal Ghozi Basmeleh, the owner of Pisma Textile, suspected that Hamedan had sent those messages to the banks and asked his lawyer to report Hamedan to the police in July 2017, he testified in court.
On September 12, 2017, Pisma Textile's lawyer, Muhammad Bayu Kusharyanto, reported "the owner of that mobile phone number" to the Surabaya police, accusing the sender of defaming the firm and providing the police screenshots of the chat messages.
On October 4, 2017, the Surabaya police questioned Hamedan and Syamlan. Both denied sending the messages.
Syamlan acknowledged that the number apparently used to send those messages was hers but said that she no longer had the phone. She said that it had been broken and that she had lost it in April 2017. She said she had used a new phone with a different number after that.
Syamlan, herself an ethnic Arab born in Jakarta, said in court that she does not speak Javanese, though it is widely spoken in Surabaya. Most Indonesian citizens speak the national language, Bahasa Indonesia, and their respective native tongues.On January 15, 2018, the police searched Hamedan and Syamlan's home while they were out of the country. According to Syamlan, the police did not find any device connected to the messages. In March 2018, the police nevertheless charged Syamlan with criminal defamation. Syamlan told the Surabaya Police's Division of Profession and Internal Security that she felt she was being harassed and intimidated and complained to the division but the police investigators soon sent her case to the Surabaya public prosecutors' office.
Her trial took place between October 2018 and February 2019. Prosecutors sought an 18-month prison term and a fine of IDR 500 million (US$35,500), under article 27 (3) and article 45 (3), which deal with electronic defamation under the 2016 Electronic Information and Transactions Law (Internet Law).
On February 26, 2019, the Surabaya district court found Syamlan guilty of defaming Pisma Textile and sentenced her to 10 months in prison and a fine of IDR 5 million (US$355). She is still free on appeal.
In 2010, Human Rights Watch published an analysis of the negative impact of criminal defamation laws in Indonesia (including the 2008 Internet Law) and urged their repeal. These laws can be exploited by powerful people to retaliate against people who had made allegations of corruption, fraud, or misconduct against powerful interests or government officials.
In 2016, the House of Representatives amended the 2008 Internet Law, reducing the jail term for defamation from six years to four but retaining criminal penalties if alleged defamatory statements are communicated over the internet.
The Indonesian government should repeal criminal defamation articles, including in the 2016 Internet Law, replacing them with civil defamation provisions that contain adequate safeguards to protect freedom of expression from unjustified interference.
"It is shocking that people like Syamlan can go to prison on the basis of vague and severe criminal defamation laws compounded by questionable evidence," Harsono said. "Instead, the government should establish civil rather than criminal penalties, and only applicable in cases in which the information is not an opinion, but a demonstrably false claim that causes real harm or damage."