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Indonesia – Legal Battles Add Injury To Insult.

28 July, 2013

 

 

Can an insult land you in civil court facing a multimillion-dollar lawsuit? It can if you happen to be in Indonesia, where an insult can be seen as an attack on a person’s “good name and honor,” carrying with it serious consequences under the Indonesian Civil Code (“ICC”).

 

Go back to 1984 and Mrs. Djokosoetono v. Selecta Magazine is believed to be the first serious legal battle over an “insult” to find its way into the Indonesian courts. And it was quite a battle between the wife of a well-known law professor and a local magazine, making it all the way to the Supreme Court. In the end, the Supreme Court ruled in favor of Mrs. Djokosoetono, finding that the article in question had insulted the plaintiff and invaded her personal life.

 

In 2007 another case involving a magazine and an “insult” made it to the Supreme Court. This case made global headlines because of the magazine and plaintiff involved, and the amount of money at stake. The Supreme Court ordered Time magazine to pay Indonesia’s former president, Suharto, one trillion rupiah (about US$100 million at today’s exchange rate) for a 1999 cover article that accused Suharto and his six children of amassing a fortune of more than $15 billion.

 

Time appealed that decision and the Supreme Court reversed itself in 2008.

 

Interestingly, the law has remained silent to this day on just what constitutes an insult to someone’s personal honor. In the Time case, the Supreme Court cited Article 1372 of the ICC in awarding damages to Suharto. The Article stipulates that a party who has been insulted is entitled to compensation, though it offers no guidance on what constitutes an insult.

 

It reads:

 

The civil legal claim with respect to an insult shall extend to compensation of damages and to the reinstatement of good name and honor that were damaged by the insult.

 

The judge shall, in the consideration thereof, have regard to the severity of the insult, also the position, status and financial condition of the parties involved and the circumstance.

 

After 2008 Indonesian courts experienced a rash of civil cases brought by parties claiming insults to their personal honor. Civil courts in Indonesia recognize only two types of cases: breach of contract and torts. Most plaintiffs in “insult” cases cited Article 1365 of the ICC on tort law and Article 1372 to demand compensation. Article 1365, as a general guidance to demand compensation under tort law, cannot be confused with Article 1372 and its stipulation of compensation for parties that have been insulted.

 

It is clear that Article 1372 should be used specifically and independently in claims related to insults. Introducing Article 1365 into the proceedings only muddles the argument.

 

It could be that a lack of access to previous decisions by Indonesian courts is the cause of some of this confusion around these types of cases. It can be maddeningly difficult to find previous court decisions in similar cases, at times leaving lawyers at a loss for how to proceed. (Note: the Indonesia legal system does not recognize stare decisis, the legal principle by which judges are obliged to respect the precedent established by prior decisions.)

 

Remember that in 2008, Time magazine successfully appealed the decision against it in part by arguing that combining Article 1372 of the ICC with Article 1365 obscured and nullified the entire argument of the plaintiff.

 

Another Suharto is testing the courts and their handling of “insult” civil suits. Hutomo Mandala Putra, or Tommy, won a 12.51 billion rupiah (about US$1.2 million at today’s exchange rate) ruling against Garuda airline in 2011. The High Court upheld the lower court decision in 2013. We are not aware whether Garuda has appealed to the Supreme Court or has reached a settlement with the plaintiff.

 

When it comes to the Indonesian civil courts it seems there is no such thing as a small insult. It will be interesting to see how these legal battles play out, and whether there will be a push to change the laws and the way these types of cases are handled.

 

SSEK

 

For further information, please contact:

 
Indrawan Dwi YuriutomoSoewito Suhardiman Eddymurthy Kardono
indrawanyuriutomo@ssek.com  
 

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