Legal Consequences of Hoax
Author: Leonardus Agatha P., S.H., M.H.
Nowadays, hoax became hot topic in public. Word “hoax” arise at the end of 18th century that suspected from “hocus” which abbreviation from hoces corpus (term used by a wizard or witch to state that everything they did is right and real) therefore interpreted with “to deceive”. Hoax in Oxford English Dictionary defined as “malicious deception” or “lie fabricated with bad purpose”. Meanwhile in Indonesia Dictionary “hoaks” interpreted as “fake news”. Although historically and grammatically very easy to understand the meaning of hoax, turns out hoax has huge legal consequence towards the maker or the person who disseminate it.
Generally there are 3 (three) categories of hoax which could be convicted based on Law No. 19 of 2016 concerning Amendment of Law No. 11 of 2008 concerning Electronic Information and Transaction (“Law 19/2016”), which are:
- Content that contains affronts or defamation;
- Fake and misleading news resulting in consumer loss; and
- Content that contains provocation about discrimination of Ethnic Groups, Religion, Race and Inter-group (Suku, Agama, Ras dan Antargolongan – “SARA”).
To understand those categories of hoax, we need to find out further the whole content of regulation as follows:
1. Content that contains affronts or defamation
Article 27 paragraph (3) Law 19/2016
“Any Person who knowingly and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with contents of affronts and/or defamation.”
In the Article above, it was obviously stated that content (posting) that contains affronts and/or defamation is a prohibited act. However, need to understood clearly what affronts and defamation means. Based on the explanation of Article 310 Criminal Code, affronts is harm someone’s honor or reputation, the one who harmed will embarrassed. Honor in this regulation only encompass reputation, and not in sexual aspect. Object of affronts must be a human, not an institution, organisation or company. Affronts must be done by accusing someone of doing certain act, it is not necessary that the action is punishable one such as robbing, it is considered sufficient with the embarrassing accusation such as prostitution.
The range of perpetrator or someone who can be punished based on this article is wide enough, including ones who distributes, transmits, or causes for the contents of defamation or slander to be accessible. So, if we are one of the netizen who take part to disseminate a content that contains defamation or slander, based on Article 45 paragraph (1) Law 19/2016, the said Person who takes part in distributing and/or transmitting and/or causes to be accessible shall be sentenced to imprisonment maximum of 6 (six) years and/or fine maximum of IDR1.000.000.000,- (one billion Rupiah).
2. Fake news and misleading resulting in consumer loss
Article 28 paragraph (1) Law 19/2016
“Any Person who knowingly and without authority disseminates false and misleading information resulting in consumer loss in Electronic Transactions.”
Law 19/2016 does not explain comprehensively regarding meaning of fake news and misleading as stipulated in Article 28 paragraph (1) Law 19/2016. The closest explanation is based on Article 390 Criminal Code which regulates and explains regarding meaning of disseminates fake news. Whereas the meaning of false/fake news is not only deliver empty news, but tell something which is not right. Fake and misleading news also include to definition of news that which is incorrect about an incident. It means that what have been reported is different with the fact.
However, fake news and misleading are not immediately punishable based on this regulation. It is necessary to prove the effect resulting from false and misleading news, which causes consumer loss. An example of false and misleading news that can be punished based on this article is the issue regarding rush money that entangled Abu Uwais. Whereas the criminal sanction based on Article 45 paragraph (2) Law 19/2016 is imprisonment maximum 6 (six) years and/or fine not exceeding Rp1.000.000.000,- (one billion Rupiah).
3. Content that contains provocation about discrimination of Ethnic Groups, Religion, Race and Inter-group
Article 28 paragraph (2) Law 19/2016
“Any Person who knowingly and without authority disseminates information aimed at inflicting hatred or dissension on individuals and/or certain groups of community based on ethnic groups, religions, races, and inter-groups (SARA).”
The issue of SARA itself is an issue that has always been a source of dispute and causes of regional conflicts in several parts of Indonesia. Some of them are conflict in Ambon, Poso, Sampit, and several other places. In order to avoid recurrence of these conflicts, this provision might be one of legal basis to minimize the dissemination of content that contains SARA provocation.
The provision of this article is actually very closely related to Law No. 40 of 2008 concerning The Elimination of Ethnic Groups, Religions, Races, and Inter-groups Discrimination (“Law 40/2008”). However, Law 40/2008 does not regulate the provocation of SARA issue used through online media and social media. The criminal sanction in Law 19/2016 is even more severe than Law 40/2008. Based on Article 45 paragraph (2) Law 40/2008, the criminal sanction of imprisonment maximum 6 (six) years and/or fine maximum Rp1.000.000.000,- (one billion Rupiah).
Other than that, fake news can cause society loss or groups of people that can cause hostility within the inter-groups. Article 14 and Article 15 Law No. 1 of 1946 concerning Criminal Law Regulation stipulate fake news that can cause trouble in society might imposed with criminal sanction maximum 10 (ten) years of imprisonment. True example that relate to this regulation is fake news (hoax) of Ratna Sarumpaet as if she had been persecuted, but turned out she the wound is from post-plastic surgery.
One thing that necessary to be criticized is the element of “knowingly and without authority” which is always exist in each of the regulation above. That element must certainly fulfilled so that action can be qualified as a criminal act. The element of knowingly in criminal law can be classified into 3 (three) forms, there are:
1. Knowing as purpose
This form of knowing obviously has purpose that their intention to be achieved.
2. Knowing as conscious of certainty
This form of knowing is conscious of the perpetrator that something will happen before reaching their intention.
3. Knowing as conscious of possibility
This form of knowing is conscious of the perpetrator there will be a possibility something else will happen as effect to reach their intention.
In the context of hoax, this knowing element can occur in those three forms. Perpetrator might realize there is a possibility whereas the news is not necessarily true. Or the possibility the perpetrator might be known that forwarded news is definitely hoax.
Without authority is interpreted as against the law (wederrechtelijk) which consist of:
- Contradict with objective law;
- Contradict with other’s rights;
- Without rights of someone; or
- Without authority.
Based on explanations above, we can identify the types of content (posting) that might has legal consequences to netizen who take part in posting or even contributing until that content became viral. Posted content must be examined the authenticity, one of the ways is by checking similar news on mainstream medias which its credibility has been approved nationally. Be a smart netizen to use your smartphone.