INSULT AGAINST PUBLIC OFFICIALS IN SOCIAL MEDIA: THE ETHICAL AND LEGAL DEBATE OVER THE RIGHT TO FREEDOM OF EXPRESSION IN INDONESIA

International Journal of Civil Engineering and Technology (IJCIET) Volume 9, Issue 5, May 2018, pp. 1059 1065, Article ID: IJCIET_09_05_118 Available online at http://www.iaeme.com/ijciet/issues.asp?jtype=ijciet&vtype=9&itype=5 ISSN Print: 0976-6308 and ISSN Online: 0976-6316 IAEME Publication Scopus Indexed INSULT AGAINST PUBLIC OFFICIALS IN SOCIAL MEDIA: THE ETHICAL AND LEGAL DEBATE OVER THE RIGHT TO FREEDOM OF EXPRESSION IN INDONESIA Adi Hardiyanto Wicaksono and Faisal Arif Universitas Diponegoro, Faculty of Law, Semarang, Indonesia ABSTRACT The presence of social media enhances public participation in the use of the right to freedom of expression which is the mandate of Article 28(e) Paragraph (3) of the 1945 Constitution of the State of the Republic of Indonesia. On another side, the public criticism and dissatisfaction towards public officials in performing their functions can be conveyed directly and often expressed through social media. This paper aims to explore the criminal provisions related to insult to public officials in social media, ethical debate in law enforcement for insult against public officials through social media, national accommodation on the recognition of the right to freedom of expression, and the direct election to fulfill some public official positions. This paper focus on the Law No. 11 of 2008 concerning Information and Electronic Transactions, one of which is an intentional act and without the right to distribute and / or transmit and / or make accessible electronic information which has defamation and / or defamation charge. This article is often used by victims to ensnare offenders through social media. The offense of abuse through social media is the offense of complaint, which in order to be followed up by law enforcement, it is required that any person complain about the act. Keywords: criminal act, abuse against public officials, social media, ethics, freedom of speech Cite this Article: Adi Hardiyanto Wicaksono and Faisal Arif, Insult Against Public Officials in Social Media: The Ethical and Legal Debate Over the Right to Freedom of Expression in Indonesia, International Journal of Civil Engineering and Technology, 9(5), 2018, pp. 1059 1065. http://www.iaeme.com/ijciet/issues.asp?jtype=ijciet&vtype=9&itype=5 1. INTRODUCTION Technological developments have an effect on the way people interact (Budiharseno, 2017; Nugroho et al., 2017). The process of buying and selling that was once done conventionally by meeting between the seller and the buyer has now changed to meet in the gameplay, as well as the way someone expressed his opinion (Wahyuni & Ginting, 2017). They no longer http://www.iaeme.com/ijciet/index.asp 1059 editor@iaeme.com

Insult Against Public Officials in Social Media: The Ethical and Legal Debate Over the Right to Freedom of Expression in Indonesia have to meet in person. By utilizing technology, one can easily express his or her opinion of a thing in the new social space of social media. The presence of social media enhances public participation in the use of the right to freedom of expression which is the mandate of Article 28(e) Paragraph (3) of the 1945 Constitution of the State of the Republic of Indonesia. However, sometimes the utilization of such rights is exercised without consideration of the disadvantages that may arise in persons other. As a result, chaos in term of the impact can be felt in society that is not only in the virtual world, but also in the real world. The real law must be in line with the development that occurs in society. If the law lags too far, then not only will the law be irrelevant, but also the law cannot be applied in society, whereas the main function of the existence of law is to regulate society so that there is no chaos. In this regard, the Government of Indonesia has made changes related to regulations on the use of technology in disseminating information, namely the enactment of Law No. 11 of 2008 on Information and Electronic Transactions. The presence of this law is a lex specialist of the Criminal Code which means for certain cases that comply with the elements of this rule, then the Criminal Code can be ruled out. Law No. 11 of 2008 on Information and Electronic Transactions regulated some criminal provisions (Lubis & Maulana, 2010). One of them is an insult to someone in the social media. The victim of defamation is not granted a restriction, so that everyone can be qualified as a victim when attacked by the forbidden act. One that can be a victim is public officials. Public Officials in Law No. 14 of 2008 on the Openness of Public Information is defined as the person appointed and given the task to occupy certain positions or positions in public bodies. The said public bodies are executive, legislative, judicative, and other bodies whose functions and duties relate to the administration of the state, which part or all of its funds are sourced from the State Revenue and Expenditure Budget and/or Regional Revenue and Expenditure Budget, community contributions and / or overseas. Public officials in performing their functions, there is the possibility of dissatisfaction with the performance of the community. Such dissatisfaction can be conveyed directly, but it is often expressed through social mediagiven its ease and impact. Debate arises when the dissatisfaction is expressed in words that attack against the self from the official. In view of its function, the public official must be prepared to obtain such scorn or criticism, but given his rights as a citizen, public official is entitled to legal protection for the dignity of the attacked. This paper aims to explore the criminal provisions related to insult to public officials in social media, ethical debate in law enforcement for insult against public officials through social media, national accommodation on the recognition of the right to freedom of expression, and the direct election to fulfill some public official positions. 2. CRIMINAL PROVISIONS RELATED TO INSULT TO PUBLIC OFFICIALS IN SOCIAL MEDIA Conventional criminal liability-considering the Criminal Code-can only be done by a person (naturlijk persoon), but related to a crime related to technology misuse, the subject of criminal law is expanding not only people but also legal entities. Penalization arrangements in the Criminal Code relate to the subject, often requiring the inner intent of the offender. Associated with the inner intentions, then that can have only human. In addition, it is also seen from the type of criminal who was dropped which can only be done by humans (Arief, 2014). In Article 1 number 21 Act No. 11 of 2008 on Information and Electronic Transactions shall be stipulated that the subject of criminal law covers Indonesian citizens and foreign citizens as well as legal entities. With the expansion of such criminal law subjects, accountability for criminal acts has become enormous and has met the needs of developments in society. http://www.iaeme.com/ijciet/index.asp 1060 editor@iaeme.com

Adi Hardiyanto Wicaksono and Faisal Arif In relation to the place of incident, it is stipulated that which can be snared not only acts committed in the jurisdiction of Indonesia, but also acts committed outside the jurisdiction of Indonesia of origin meet two requirements namely: a. Having legal consequences in the jurisdiction of Indonesia and / or outside the jurisdiction of Indonesia; and b. Adverse the national interests. Both of the above-mentioned requirements are cumulative, both of which must be met and not just one. If one of the two requirements is not met, then the act cannot be accounted for by using Indonesian law. In relation to the locus delicti, it can be analyzed that it is related to criminal misuse of technology, its arrangement uses several principles namely territorial principle, active national principle and passive national principle (Moeljatno, 2009). The territorial principle emphasizes the place of action. Anyone who does so, an Indonesian citizen or a foreign national, is not a consideration. This principle is commonly used by most countries. The second principle is the national principle active or often equated with personal principles. It focuses on people who commit criminal acts. The place of the offense on this principle is positioned as not important. This principle is quite difficult to apply because it relates to the sovereignty of the country where the crime occurred. To execute an incident in accordance with this principle, an extradition treaty is usually committed against a criminal offender. The third principle, the passive national principle focuses on the place of losses on criminal acts committed. Although such acts are committed outside the jurisdiction of a country, but if the act is detrimental to a particular country, then that particular country may take action against the offender. In relation to criminal misuse of technology, its locus delicti is more difficult to determine than with ordinary crimes (contained in the Criminal Code). However, these difficulties can be tricked by determining the place where the act resulted in a loss. Seeing such a case, it is necessary to have a progressive law enforcement officers related to the determination of place of crime for the realization of regularity as one of the functions of criminal law. Prohibited acts regulated in Law No. 11 of 2008 concerning Information and Electronic Transactions, one of which is an intentional act and without the right to distribute and / or transmit and / or make accessible electronic information which has defamation and / or defamation charge. This article is often used by victims to ensnare offenders through social media. The offense of abuse through social media is the offense of complaint, which in order to be followed up by law enforcement, it is required that any person complain about the act. The person who complained must be the person who suffered a loss for what the perpetrator has done. Unauthorized persons cannot be claimants. Problems arise when the insulted are public officials, especially those elected through the democratic system. Reporting actions that harm him can sometimes harm the image that is in him so that the electability decreased. There is no special treatment for public officials related to his humiliation. The treatment provided by law is similar to the treatment given to citizens in general. Crime that can be imposed if a person commits a prohibited act as mentioned above shall be sentenced to imprisonment for a maximum of 6 (six) years and / or a maximum fine of Rp. 1,000,000,000 (one billion rupiah). If the act is committed by a corporation / legal entity, it is criminally charged with two or three thirds. The problem that arises is if the action is done by the corporation. Given the existing criminal type, the corporation cannot be closed or dissolved by the government. http://www.iaeme.com/ijciet/index.asp 1061 editor@iaeme.com

Insult Against Public Officials in Social Media: The Ethical and Legal Debate Over the Right to Freedom of Expression in Indonesia 3. ETHICAL DEBATE IN LAW ENFORCEMENT FOR INSULT AGAINST PUBLIC OFFICIALS THROUGH SOCIAL MEDIA As a public official, one must be prepared to accept all the rational and irrational scorn of society. However, as a citizen, public officials also deserve legal protection just like any other citizen. They-public officials-who are insulted through social media means, are entitled to complain of criminal offenses to which they are victims. They are also entitled to the complaints they report to law enforcement officers for follow-up. The humiliation of a person in social media can have the effect of mimicking public opinion to think the same as the offender. The effect will not only be felt by public officials, but also by family members of the public officials. Losses suffered by public officials are not just a public scorn for him, but also a scorn on his family members. It can have a poor psychological impact, especially on the children of public officials, which should not happen. On the other hand, criticism of the performance of public officials is required as checks and balances (see also, for official immunity, Rosenbloom, 1980; Epstein, 1978; Woolhandler, 1986). If criticism of public officials is silenced, then it has claimed the right of citizens to speak up especially if the performance of public officials is very bad. If criticism is silenced by using insulting articles through social media, then public officials are likely to be authoritarian and anti-critical that should be avoided in a democratic country. The problems that occur in relation to the insult article through social media, especially to public officials are what is the boundary between humiliation and criticism (see also Chase, 1889; Thompson, 1980). Legislation does not set such limits, so that the article can be said to be a multi-interpretation article that is the article that can ensnare anyone, regardless of what is mentioned right or slander. If the limit of contempt is untruthfulness of what is uploaded in social media, then the public official who is the victim must prove that what has been uploaded is not true. However, this does not happen in court practice, which may mean that regardless of whether the upload has a truth value or not, the offender can be criminalized. Ethical problems arise seen from the reporting side by public officials for the humiliation he experienced, whether the acts committed by public officials are true or not. Given the position held by him, then it is not a good thing to do. This is related to the function of public officials serving the citizens. The services provided by him certainly will not satisfy each party. Related to this matter, public officials should be accepted with sincerity over all criticism directed at him. However, what perpetrators do is not justifiable either from the side of law or ethics. If the defamation is intended to give criticism to the performance of public officials, then the criticism should be directed to the means directly provided. If a public official in the mind of the offender has committed a disgraceful act which is regulated in legislation, then the offender should report the matter to the authorities. Judging from the above mentioned descriptions, it can be concluded that several matters relate to the cause of a person's humiliation of a public official in social media: a. The lack of adequate facilities related to the check and balance function of the public on the performance of public officials; b. Where the means for channeling criticism exist, the criticism has not been followed up or followed up but without transparency to the public; and c. The absence of clear limits on criticism and contempt in legislation. The community itself has not fully understood the rights associated with others that must be maintained in an upload on social media. Society is indifferent to the harm experienced by others. Which is contrary to the noble values-which he says-is owned by the Indonesians. http://www.iaeme.com/ijciet/index.asp 1062 editor@iaeme.com

Adi Hardiyanto Wicaksono and Faisal Arif In relation to law enforcement positions, what should be done is to follow up on any complaints made by public officials. Law enforcement officials have an obligation to treat a person equally before the law. On the ethical issue of public officials who complain, it is not the area of law enforcement to take care of it, because law and ethics exist in different dimensions. 4. HAS INDONESIA REALLY ACKNOWLEDGED THE RIGHT TO FREEDOM OF SPEECH? As a democratic country, the 1945 Constitution of the State of the Republic of Indonesia has accommodated the recognition of the right to freedom of expression. Everyone has the right to express his opinion in public. Restrictions on this right have also been regulated in the form of rights that exist in others. In the present era, the right has really been felt by society. Indonesia had an emergency over the right to freedom of expression during the Soeharto era. At that time, all press agencies are required to report content that will be published before they are published. If any content is disapproved by the authorities, then the content cannot be published. If the press commits a reckless act, then it can be criminalized and the agency is revoked. In that era, government critics were not given space. Critics of the rulers are even subjected to torture in ways outside the law. Those who criticize too harshly are omitted and never again known to their bodies, or at least killed in ways previously planned. Some of the biggest cases that critics have experienced in the New Order era is the death of Buru Island Case 1965-1966, mysterious shootings 1981-1985, Tanjung Priok 1984-1987, Talangsari 1984-1987, Military Operations Area in Aceh (1989-1998). Indonesia has changed. Indonesia has given space to all opinions. Nevertheless, Indonesia has not forgotten to set such limits of freedom for the sake of creating order in society. As a country, the regulation of the right to freedom of expression has been completed. 5. ELECTIONS: INCREASE ELECTABILITY BY DESTROYING COMPETITORS Some positions of public officials are obtained through a democratic system that is a direct election by the community (Reilly, 2018). Those who get the most support can reach the position. Positions as President, Governor, Regent, Mayor, and the members of House of Representatives are contested by candidates through general election. Prior to the general election, candidates conducted a campaign which was conducted with the aim of obtaining sympathy from the community. The campaign was conducted, even before the determination of the candidate. Prospective public official s campaign by voicing their vision and mission if they are elected later. Conducting political agreements with the voters can then serve as a measure of whether candidates when elected have implemented the policy in accordance with the promise or not. If it is not in accordance with the promise, then it is a reasonable reason for voters to criticize. In addition to voicing its vision and mission, candidates often criticize its competitors. These criticisms are ranging from mission vision to criticism related to personal issues. Criticism of the candidate is not only done by another candidate, but also done by successful teams and even sympathizers of competitors. Social media becomes a means to lead public opinion to choose or not to vote for a person in an election. Seeing this, successful teams, sympathizers and candidates use social media as a means to gain support. The humiliation of public officials in social media-especially those who want to resume the general election-is done with the aim of imposing the electability of the public official. Such humiliation is in fact done in the form of defamation of the public official relating to http://www.iaeme.com/ijciet/index.asp 1063 editor@iaeme.com

Insult Against Public Officials in Social Media: The Ethical and Legal Debate Over the Right to Freedom of Expression in Indonesia performance as well as personal matters. Disdain for performance is commonplace to accept, only on the condition that it is a fact and not a slander. With regard to personal matters, it is not really appropriated to be uploaded in social media because the seizure of the vote in this way is an ethical violation to gain a position of public servant. 6. CONCLUSION Public officials have two roles in the life of the state, namely as citizens who have the right to be treated equally before the law and a public servant who must receive any criticism from members of the community. His humiliation through social media is worth following up, but criticism of him for his performance, should not be complained. The absence of restrictions between criticism and contempt in insulting articles through social media, a condition with the interests of officials to carry out silencing criticism. The community itself has not been able to exercise its rights wisely. REFERENCES [1] Arief, Barda Nawawi. 2014. Pelengkap Hukum Pidana I (Complementary to Criminal Law). Semarang: Pustaka Magister. [2] Budiharseno, R. S. (2017). Factors Affecting Online Buying Behavior on G-Market Site among International Students in Busan: A Qualitative Research. Arthatama: Journal of Business Management and Accounting, 1(1), 1-5. [3] Chase, G. (1889). Criticism of Public Officers and Candidates for Office. Am. L. Rev., 23, 346. [4] Epstein, R. A. (1978). Private-Law Models for Official Immunity. Law and Contemporary Problems, 42(1), 53-66. [5] Kung, Hans, Global Ethic, Law, and Politics. The Global Ethic and Law: Intersections and Interactions. Nomos Verlagsgessellschaft mbh & Co, KG, 2015. [6] Lubis, M., & Maulana, F. A. (2010, December). Information and electronic transaction law effectiveness (UU-ITE) in Indonesia. In Information and Communication Technology for the Muslim World (ICT4M), 2010 International Conference on (pp. C-13). IEEE. [7] Moeljatno. 2009. Asas-Asas Hukum Pidana (Principles of Criminal Law). Jakarta: Rineka Cipta. [8] Nugroho, A. H., Bakar, A., & Ali, A. (2017). Analysis of technology acceptance model: case study of Traveloka. Arthatama: Journal of Business Management and Accounting, 1(1). [9] Reilly, Shauna, Direct Democracy: A Double-Edged Sword. (Boulder: Lynne Rienner, 2018). [10] Rosenbloom, D. H. (1980). Public administrators' official immunity and the Supreme Court: Developments during the 1970s. Public Administration Review, 166-173. [11] Sudarto. 1990. Hukum Pidana I (Criminal Law). Semarang: Yayasan Sudarto. [12] Thompson, D. F. (1980). Moral responsibility of public officials: The problem of many hands. American Political Science Review, 74(4), 905-916. [13] Wahyuni, S., & Ginting, M. (2017). The impact of product quality, price, and distribution on purchasing decision on the astra motor products in Jakarta. Arthatama: Journal of Business Management and Accounting, 1(1), 18. [14] Woolhandler, A. (1986). Patterns of Official Immunity and Accountability. Case W. Res. L. Rev., 37, 396. [15] Dr. Meenakshi Tomar, Dr. Krishan K Pandey and Dr. Devendra K Punia, Customer Engagement on Social Media: Understanding the Functional Perspectives of Social Media http://www.iaeme.com/ijciet/index.asp 1064 editor@iaeme.com

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