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Wed, 31 Oct 2007

IMLA NEWSLETTER OCTOBER 2007

1. Albania

2. Australia

3. Bangladesh

4. Chile

5. Egypt

6. EU/Brussels

7. France

8. India

9. Indonesia

10. Iran

11. Ireland

12. Jordan

13. Kazakhstan

14. Malaysia

15. New Zealand

16. Peru

17. Republic of Ireland

18. Russia

19. Tajikistan

20. Turkey

21. United Arab Emirates

22. UK

23. US

24. Uzbekistan

25. Venezuela

26. Zimbabwe

27. Various/Useful Links

1. Albania

Regulatory authority decides to suspend TVA Albania - Apace Media Plc says it has learned that on 10 October 2007 the Albanian National Council for Radio and Television (NCRT), the regulatory body for the broadcasting sector in Albania, issued a preliminary decision to suspend the National Broadcasting Licence of the Albanian national television broadcaster, TVA - TV Arberia sh.p.k (TVA). The NCRT has at the same time issued a warning to the other Albanian national broadcaster - TV Klan.

Source – Media Network 15.10.07
http://blogs.rnw.nl/medianetwork/regulatory-authority-suspends-tva-albania

2. Australia

Telegraph, Jones could face Kovco contempt charges - High-profile 2GB radio presenter Alan Jones and Sydney's the Daily Telegraph could face contempt charges over reports on the future inquest into the death of Australian soldier Jake Kovco in Iraq. NSW coroner Mary Jerram says she is outraged by the comments and has urgently listed the matter for mention today.

Source – ABC 17.10.07
http://abc.net. au/news/stories/ 2007/10/17/ 2061776.htm? section=australi a

Source – ABC 17.10.07
http://abc.net. au/news/stories/ 2007/10/17/ 2061776.htm? section=australi a

Libel law concerns – The Federal Government's near-uniform defamation legislation has been in place since the start of last year, and in the latest issue of Australian Journalism Review, Professor Mark Pearson gives a mixed report card on its progress.
Source – 22.9.07
http://www.theage.com.au/news/opinion/media-matters/2007/09/21/1189881771243.html

3. Bangladesh
Bangladesh arrests creator of Muhammad cartoon, suspends magazine over publication – Bangladesh suspended publication of weekly satire magazine Alpin Friday after hundreds of Bangladeshi Muslims protested the publication of a cartoon depicting a young boy and his "Muhammad cat," saying the cartoon ridiculed the Muslim prophet Muhammad. Protesters burned copies of Prothom Alo, the daily newspaper that publishes the Alpin magazine, and demanded that the cartoonist, editor and publisher be arrested.

Source – Jurist 21.9.07
http://jurist.law.pitt.edu/paperchase/2007/09/bangladesh-arrests-creator-of-muhammad.php

4. Chile

Chilean congressional report calls for advertising law reform – The Chilean Congress last week approved the findings of a congressional investigation on government advertising practices and called on the government to reform the sector. A bipartisan investigative committee, established in June 2006, found serious shortcomings in the way government advertising is allocated among Chilean media and other beneficiaries.

Source – Open Society Justice Initiative 24.10.07
http://www.justiceinitiative.org/db/resource2?res_id=103924

Rights group condemns China Net controls - An international media rights group called on China to loosen controls on news and personal expression on the Internet, saying the country's system of censorship is an insult to the spirit of online freedom.

Source – USA Today 10.10.07
http://www.usatoday .com/tech/ news/2007- 10-10-china- net-censorship_ N.htm

5. Egypt
Thirty-four IFEX members, other organisations call for an end to imprisonment of journalists - Just last month, five editors were each sentenced to a year in jail. Cases of journalists being harassed through the courts and sent to prison have increased tremendously over the past few years. In a joint action, 41 IFEX members and other organisations call for an end to the jailing of journalists for simply expressing their critical views of the government.

Source – IFEX 11.10.07
http://www.ifex. org/en/content/ view/full/ 86919/

6. EU/Brussels

Europe rights court upholds defamation conviction of French author – The European Court of Human Rights on Monday upheld a 1999 conviction of French author Matthieu Lindon for defamation. In his book “The Trial of Jean-Marie Le Pen”, Lindon suggested that the France’s far-right National Front leader Jean-Marie Le Pen bore responsibility for two 1995 murders committed by supporters of his party.

Source – Jurist 22.10.07
http://jurist.law.pitt.edu/paperchase/2007/10/europe-rights-court-upholds-defamation.php

European journalism groups unite for press freedom - Organizations in Romania and Slovenia are among those participating November 5 in Europe’s Stand Up for Journalism initiative, to urge more support and freedom for news gatherers. The European Federation of Journalists and various national organizations are planning events to mark the day.

Source – IJ Net 22.10.07
http://www.ijnet.org/Director.aspx?P=Article&ID=306827&LID=1

Commission confirms UK-list of major events to be televised free-to-air - Today the European Commission adopted a decision on the UK list of events of major importance for society to be broadcast free to air, either live or with a slight delay. The list covers international events like the Rugby World Cup Final, the Olympic Games and the FIFA World Cup Finals and specific national events like Cricket matches, the Grand National, the Derby, the Ryder Cup and the Commonwealth Games.

Source – Europa 15.10.07
http://www.europa. eu/rapid/ pressReleasesAct ion.do?reference =IP/07/1493& format=HTML& aged=0&language= EN&guiLanguage= en

“Media diversity: a core element of true democracy” - Governments often complain about the mass media in their own country; they feel that their messages are distorted and unfairly criticized. True, there are media outlets which are not very serious and professional. However, this problem should not be exaggerated and is not a good excuse for draconian interventions or state control.

Source – Council of Europe 1.10.07
http://www.coe.int/t/commissioner/Viewpoints/default_en.asp

The Council of Europe adopts Guidelines on protecting freedom of expression and information in times of crisis - The Council of Europe Committee of Ministers just adopted several important documents related to the challenges freedom of expression and information face today in its 47 Member States. The Committee adopted Guidelines on protecting freedom of expression and information in times of crisis.

Source – Council of Europe 1.10.07
http://www.coe.int/t/dc/press/NoteRedac2007/20071001_cm_en.asp

Activities of the Council of Europe Media and Information Society Division - October 2007 -
You will find below the list of activities carried out by the Media and Information Society Division in October 2007. I would like to draw your attention to the following consultation:
- "Civil society and media professional organisations' views welcome on possible Article 10 monitoring mechanism", see under the Media and Information Society Division Website homepage (www.coe.int/media) Should you need any further information, please do not hesitate to contact us.
With best wishes,

October 2007Analytical summaries of replies by member states to two questionnaires of the MC-S-PSM group
12 September – 1 October EC 20297

Regional Conference on converged regulatory bodies for countries in the Western Balkans, organised in the framework of the Joint Programme between the European Commission and the Council of Europe to promote the democratic process in Ukraine and South Caucasus States
1-2 October, Skopje (''the former Yugoslav Republic of Macedonia'') IN 19145 Seminar on media coverage of judicial proceedings, organised in the framework of the Joint Initiative between the European Agency for Reconstruction and the Council of Europe to promote freedom of expression and information and freedom of the media in Serbia
4-5 October, Belgrade (Serbia) LD 15500 42nd meeting of the Standing Committee on Transfrontier Television (T-TT)
8-9 October, Strasbourg, Council of Europe AVK 18045
Seminar for members of Parliament on European standards in broadcasting regulation, organised in cooperation with the Assembly of the Republic of Albania and the European Commission
9-10 October, Strasbourg, Council of Europe IN 19140
6th meeting of the Group of Specialists on public service media in the information society (MC-S-PSM)
11-12 October Strasbourg, Council of Europe EC 18016
Study visit for members of the National Commission on Radio and Television to the Communications Regulatory Authority in Bosnia and Herzegovina, organised in the framework of the Joint Programme between the European Commission and the Council of Europe to promote the democratic process in Ukraine and South Caucasus States
15-19 October, Sarajevo (Bosnia and Herzegovina) FK 12768
Training workshop on monitoring capacities of the ORTT, organised in cooperation with the Hungarian regulatory authority for the broadcasting sector (ORTT)
16-17 October, Budapest (Hungary) EC 19956
Meeting of Bureau of CDMC
18-19 October, Strasbourg, Council of Europe JM 19815
8th meeting of the Group of Specialists on human rights in the Information Society (MC-S-IS)
29-30 October, Strasbourg, Council of Europe LH 18013
Study visit for members and staff of the National Council of Television and Radio Broadcasting of Ukraine to other Council of Europe member States, organised in the framework of the Joint Programme between the European Commission and the Council of Europe to promote the democratic process in Ukraine and South Caucasus States
October, Several locations in Ukraine LD 12698
Media & Information Society Division
Directorate General of Human Rights & Legal Affairs Council of Europe FR - 67075 Strasbourg
Fax: +33 3 88 41 27 05
http://www.coe.int/media

7. France

EFJ Supports Petition for the Right to Report through News Pictures - The European Federation of Journalists (EFJ), the regional group of the International Federation of Journalists, today announced its support to the “Perpignan Call,” a petition in favor of the right to information through pictures and the right to publish news photographs.

Source – International Federation of Journalists 9.10.07
http://www.ifj. org/default. asp?index= 5387&Language= EN

8. India

Four journalists get jail terms for contempt of court - Reporters Without Borders voiced outrage at a New Delhi court decision today to sentence the publisher of the Mid-Day newspaper and three of his employees - two editors and a cartoonist - to four months in prison for contempt of court because they accused a former senior judge of issuing a ruling that benefited his son.

Source – 21.9.07
http://www.rsf.org/article.php3?id_article=23733

9. Indonesia

Twenty-two IFEX members condemn Supreme Court ruling against "Time Magazine - In August, the Supreme Court ordered "Time" magazine to pay former president Suharto a whopping three trillion Rupiahs (US$110 million) for a story that accused him and his family of amassing a fortune during his rule. Twenty-two IFEX members and partners expressed solidarity with "Time" to fight against the ruling.

Source – IFEX 12.10.07
http://www.ifex. org/alerts/ content/view/ full/86975/

10. Iran
Iran jails three students for insulting Islam- Iran on Tuesday handed down jail sentences of at least two years each to three students imprisoned since May on charges of insulting Islam, the Mehr news agency reported.

Source – The Daily Star 17.10.07
http://www.dailysta r.com.lb/ article.asp? edition_id= 10&categ_ id=2&article_ id=86008

11. Ireland

Justice Dept to create internet safety office - The Minister for Justice, Brian Lenihan, has announced he is to establish an Office for Internet Safety. The office, which will be part of the Department of Justice, will be responsible for Internet safety, awareness campaigns and monitoring Internet Service Providers.

Source – RTE 20.9.07
http://www.rte.ie/news/2007/0920/Internet.html?rss

12. Jordan

Jordan jails royal critic over e-mails - A critic of Jordan's royal family was sentenced to two years in jail on Tuesday for sending e-mails abroad that the court ruled to be carrying "false news" and harmful to the dignity of the state. The verdict against Ahmad Oweidi al-Abbadi, after a two-month trial, comes at a time that human rights groups are voicing concern about what they call an official clampdown on the media.

Source – Reuters 9.10.07 http://today. reuters.com/ news/articlenews .aspx?type= technologyNews& storyID=2007- 10-09T152238Z_ 01_L0959103_ RTRUKOC_0_ US-JORDAN- DISSENT.xml

13. Kazakhstan

Adil Soz, other NGOs issue joint statement on shortcomings of proposed media law reforms - The Ministry of Internal Affairs has initiated amendments to defamation legislation. This was surprising because defamation and insult provisions refer to cases that are based on private complaints and the police have nothing to do with them.

Source – IFEX 16.10.07
http://www.ifex. org/en/content/ view/full/ 87018/

14. Malaysia

Blogger faces contempt proceedings - The New Straits Times Press (M) Bhd, and three others, have applied to the High Court for leave to initiate committal proceedings against blogger Ahirudin Attan - They claimed Ahirudin had allegedly committed contempt of court, as he had breached an undertaking that he had given to the court on Jan 29.

Source – New Straits Times 21.9.07 http://www.nst.com.my/Current_News/NST/Friday/National/20070921085513/Article/index_html

15. New Zealand

Restrictions on satire in New Zealand - New Zealand's Parliament has voted itself far-reaching powers to control satire and ridicule of MPs in Parliament, attracting a storm of media and academic criticism. The new standing orders, voted in last month, concern the use of images of Parliamentary debates.

Source – Press Gazette 23.7.07
http://www.pressgaz ette.co.uk/ story.asp? sectioncode= 1&storycode= 38302

16. Peru
Judge Sentences newspaper’s editor, journalists and cartoonist without proving that a crime took place - On 18 September 2007, Judge Haydee Monzón, of the First Criminal Transitory Court of Lima, convicted the editor of newspaper La República, Gustavo Mohme Seminario, as well as the cartoonist Carlos Tovar Samanez “Carlín” and the journalists Ángel Páez and Edmundo Cruz, of aggravated defamation. The ruling imposes a two year suspended prison sentence and the payment of 50 thousand soles (US$ 16 thousand) in civil reparation to the accuser, Gladys Barboza Peña, a career official in the Department of the Interior.

The crime attributed to Mohme by the judge is based exclusively on his position as editor of La República, the journalists’ as signatories of the articles, and the cartoonist’s as such. The sentence never analyzes the content of the news pieces, but it does accuse the newspaper of having used the official’s image without consulting her when it published her photograph, and of insulting her through the publication of cartoons.

The information published by La República was based on public and private sources and was verified by the same accuser. the articles call into question the probity of her public activities in the Department of the Interior, and even originated her change to a position with other responsibilities.

Judge Monzón Gonzáles’s sentence infringes article 139.5 of the Constitution, which recognizes the right of every individual to be sanctioned by sentences based on proven facts and following the correct application of the law.

IPYS is especially concerned by the way in which Judge Monzón involved the newspaper’s editor, appealing only to the fact of his position, violating the absolute prohibition of involving a person without proving his fraudulent participation in events, as established by the Criminal Code currently in force.

Source – IPYS 17.10.07
www.ipys.org

17. Republic of Ireland
Journalists ordered to testify at Taoiseach payments tribunal - Two prominent Irish journalists have been ordered by the High Court to testify before a tribunal on the source of a story about payments to Taoiseach Bertie Ahern.

Source – Breaking News 23.10.07
http://breakingnews.ie/ireland/mhmhmhmhsnoj/

18. Russia

Eritrea ranked last for first time while G8 members, except Russia, recover lost ground - Eritrea has replaced North Korea in last place in an index measuring the level of press freedom in 169 countries throughout the world that is published today by Reporters Without Borders for the sixth year running.

Source – RSF 16.10.07
http://www.rsf. org/article. php3?id_article= 24019

19. Tajikistan

OSCE media freedom representative calls on Tajikistan to protect free flow of information on Internet - Miklos Haraszti, the OSCE Representative on Freedom of the Media, today called on Tajikistan to bring its legislation in line with its OSCE commitments by revoking recent criminal code amendments that restrict the freedom of speech.

Source – OSCE 21.9.07
http://www.osce.org/item/26360.html

20. Thailand

Thai police ban a book on democracy - The International Federation of Journalists (IFJ) has expressed its concern after receiving reports that police have confiscated copies of a book about Thai politics, democracy and the monarchy, written by respected and well-known social critic, Sulak Sivaraksa.

The book, entitled A quarter of a century of Thai politics: a thorn-filled path, led to Sivaraksa receiving a notice from the Special Branch Police on October 2, 2007, which cited the
out-of-date1941 Printing Law and ordered him to stop printing, selling and disseminating the book.

IFJ Asia-Pacific Director Jacqueline Park said, "Banning books and access to a variety of information sources is a clear breach of people's freedom and right to know, and reveals the kinds of restrictions imposed by the Thai government on writers and the media".

Thai police allege the material in the book "may cause unrest and degrade good morals" in Thai society. A new Printing Act does not allow police to seize books for this reason, but although the new law has been passed it is yet to be made effective.

However Sivaraksa stands by his book, and claimed, "…all I wrote was true… for three decades now, authorities have not stopped harassing citizens and even (Prime Minister) Surayud (Chulanont) once remarked that (Thai) police are like the mafia".

Sivaraksa said he will now petition the United Nations and the National Human Rights Commission and file a case in the Administrative Court to challenge the police's decision. He has had charges made against him in the past which subsequently dropped due to an international outcry.

"The IFJ supports Sivaraksa in challenging the decision to confiscate his book and calls upon Thai authorities to drop the ban and allow the book to be freely published and distributed," Park said.

"It is the role of the media to question governments and hold them accountable for their actions, and it's terrible that people like Sivaraksa are being persecuted for carrying out their professional duties."
12. Indonesia
Press Council condemns Telkom for releasing journalist's phone logs National News - September 15, 2007 - The Indonesian Press Council condemned Friday state-owned telecommunication services provider PT Telkom for giving the text messaging records of a journalist to law enforcement official.

Source – The Jakarta Post 15.9.07
http://www.thejakartapost.com/yesterdaydetail.asp?fileid=20070915.A06
See also Bayu Wicaksono’s blog (MLAP 2007 participant) http://bayuw.blogspot.com/

21. Turkey

Conviction of assassinated journalist's son for "insulting Turkish identity" more proof Article 301 must be abolished, says OSCE media watchdog - The OSCE Representative on Freedom of the Media, Miklos Haraszti, has called on Turkish Prime Minister Recep Tayyip Erdogan to urgently repeal Article 301 of Turkey's Penal Code, which makes it an offence to "insult Turkish identity" and which continues to target journalists with dissenting views on history.

Source – OSCE 18.10.07
http://www.osce.org/item/27419.html

Turkish court convicts son of murdered journalist for 'insulting Turkishness' - A court in Turkey [JURIST news archive] Thursday convicted Arat Dink, editor of the Armenian newspaper Agos and son of the late Armenian journalist Hrant Dink, of violating Article 301 of the Turkish penal code which bans insults against Turkish identity.

Source – Jurist 11.10.07
http://jurist. law.pitt. edu/paperchase/ 2007/10/turkish- court-convicts- son-of-murdered. php

Two sentenced for ‘insulting Turkishness’ as European Court rules against Turkey - On 11 October 2007, an Istanbul criminal court sentenced Arat Dink, editor of the Armenian-Turkish magazine "Agos", and Sarkis Serkopyan, the magazine's licence owner, to one-year suspended prison terms. They were convicted under the notorious penal code Article 301 of "insult to Turkishness" for a 2006 report in which Dink's father, Hrant Dink, had referred to the mass killings and disappearances of Armenians in Turkey around 1915 as genocide.

Source – IFEX 16.10.07
http://www.ifex. org/fr/content/ view/full/ 87032/

22. United Arab Emirates

UAE newspaper editors sign new code of ethics - A new, voluntary code of ethics in the United Arab Emirates outlines a wide variety of responsibilities for newspaper journalists in the country, according to local reports. Leading editors from Arabic- and English-language papers signed the code on October 1, the Gulf News and Khaleej Times reported.

Source – International Journalist Net 12.10.07
http://www.ijnet. org/Director. aspx?P=Article& ID=306792& LID=1

23. UK

PCC rejects complaint over Youtube train fire-bomb - The Press Complaints Commission has published its second adjudication on web video. It has rejected a complaint against the Northwich Guardian which carried a video on its website, which had originally been uploaded onto YouTube, showing youths throwing fire bombs at a freight train and setting it alight. It also published stills from the video in the newspaper itself.

Source – Press Complaints Commission http://www.pcc.org.uk/cases/adjudicated.html?article=NDc1OA?oxid=347998d386f2c9b9c5d1c99739922d0e

24. US

Author and foreign court lose battle to remove libel from US site - A US court has snubbed a ruling by a Canadian court that ordered the removal of defamatory comments from a US website. The author had also asked that his comments be removed, but the site refused to comply and the US court has supported that decision.

Source – Out Law 16.10.07
http://www.out-law.com/page-8554
NB judgment at
http://claranet.scu.edu/tempfiles/tmp34690/globalroyaltiesxcentricmtd.pdf

Proposed global privacy standard is too vague and too weak, says expert - The set of rules which Google proposed as the foundation for a global privacy standard are inadequate, a privacy law expert has said. The rules are not specific enough to operate as a global standard, said the expert.

Source – Out Law 15.10.07
http://www.out-law.com/page-8551

Companies set guidelines on copyrighted video - A coalition of major media and Internet companies Thursday issued a set of guidelines for handling copyright-protected videos on large user-generated sites such as MySpace. Conspicuously absent was Google, whose YouTube website this week rolled out its own technology to filter copyrighted videos once they've been posted.

Source –USA Today 18.10.07
http://www.usatoday.com/tech/news/2007-10-18-copyrighted-video_N.htm

Porn typosquatter fined again by FTC - A so-called typosquatter who served pornographic advertisements on domains such as Bobthebiulder.com and teltubbies.com has been fined again by the U.S. Federal Trade Commission. John Zuccarini has agreed to give up $164,000 in typosquatting revenue he is alleged to have raked in, the FTC said Tuesday in a statement.

Source – Info World 16.10.07
http://www.infoworld.com/article/07/10/16/Porn-typosquatter-fined-again-by-FTC_1.html

Crackdowns On Bloggers Increasing, Survey Finds - Government repression in some countries has shifted from journalists to bloggers, with the vitality of the Internet triggering a more focused crackdown as blogs increasingly take the place of mainstream news media, according to Lucie Morillon, Washington director of the advocacy group Reporters Without Borders.

Source – Washington Post 16.10.07
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/16/AR2007101601843.html

Judge in Jeffs case gives TV reporter community service for contempt - A 5th District Court judge found a KUTV reporter in contempt of court Wednesday for an interview she did with a potential juror during the Warren Jeffs rape trial. Judge James Shumate ruled that reporter Katie Baker violated his decorum order by interviewing a potential juror in a live broadcast during jury selection last month.

Source – Salt Lake Tribune
http://www.sltrib. com/News/ ci_7204270

US House passes reporter shield bill - The US House of representatives Tuesday voted 398-21 to pass a shield bill [HR 2102 materials] that would prevent courts from compelling reporters to disclose confidential sources. The Free Flow of Information Act of 2007 was sponsored by Mike Pence (R-Ind.) and Rick Boucher (D-Va.

Source – Jurist 16.10.07
http://jurist. law.pitt. edu/paperchase/ 2007/10/us- house-passes- reporter- shield-bill. php

Senate Judiciary Committee backs journalist shield bill – The US Senate Judiciary Committee Thursday voted 15-2 to send a federal shield bill, which would protect reporters from being compelled to disclose confidential sources, to the full Senate for consideration.

Source – Jurist 4.10.07
http://jurist.law.pitt.edu/paperchase/2007/10/senate-judiciary-committee-backs.php

Student's first amendment rights violated? - Michigan born student Mariam Jukaku studies communications and photography at SU with the aspiration of becoming a journalist. She's also studied Media Law and thought she was well within her rights as she stood on the public sidewalk in front of the V.A. hospital, snapping photos of the American flag.

Source – News 10 Now 5.10.07
http://news10now.com/content/all_news/central_new_york/?ArID=120572&SecID=86

25. Uzbekistan

Blogger Back Online, Trumping Lawyers - Seemingly on the ropes after a Uzbekistan billionaire' s lawyers pressured his former Web host into taking down his site, an Internet critic is back online today in an ongoing Internet slugfest that has drawn worldwide attention to the way libel issues are handled in the blog world.
Source – ABA Journal 19.10.07
http://www.abajourn al.com/weekly/ blogger_trumps_ lawyers_gets_ back_online

26. Venezuela
National assembly proposes that the executive should declare IAPA’s members as persona non grata - On 20 October 2007, the National Assembly proposed requesting President Hugo Chávez to declare the Inter-American Press Association (IAPA) persona non grata in Venezuela. The statement was made by the first vice-president of Parliament, Desirée Santos Amaral, after IAPA published some conclusions on October 16, in which the government’s restrictive actions against the freedoms of the press and of expression are reported.

The text published by IAPA also states that this organization will accuse Venezuela of human rights violations, infringing citizens’ guarantees which appear in the Constitutional Reform project, the multiplication of State-run media and the arbitrary way in which concessions are assigned, as well as the attacks against journalists and the media which have taken place in that country, before the international courts.

Source – IPYS 26.10.07
www.ipys.org

Judge orders radio station’s broadcasting equipment to be seized - On 2 October 2007, the control judge of the First Instance Civilian, Commercial and Agrarian Court, Juan Carlos Tacoa, ordered the closing down of radio station Horizonte 88.5 FM and the seizure of its broadcasting equipment, after it failed to pay for it to the L&G Corporation company. The suit was filed by the company’s owner, Jonathan Gutierrez, in 2006.

IPYS believes the judge’s ruling infringed article 97 of Venezuela's Attorney General’s Office Organic Law (LOPGR) which establishes that in cases where goods belonging to a public service are seized, the Attorney General must be notified and a 45 day term must be granted; this was not observed.

The lack of compliance with this article can lead to a fine of between 860 and 1720 American dollars for the judge.

Horizonte 88.5 has a critical position towards the National Government.

Source – IPYS 12.10.07
www.ipys.org

27. Zimbabwe

Censorship and political interference rife at state broadcaster - The chief executive officer of Zimbabwe Broadcasting Holdings (ZBH), Henry Muradzikwa, has admitted that political interference and censorship of news reports is the order of the day at the state-controlled national broadcaster.

Source – All Africa 22.9.07
http://allafrica.com/stories/200709211025.html

28. Various/Useful links

a) Strasbourg Judgment Article 10 ECHR
EUROPEAN COURT OF HUMAN RIGHTS
674
11.10.2007
Press release issued by the Registrar

CHAMBER JUDGMENT
GLAS NADEZHDA EOOD AND ANATOLIY ELENKOV v. BULGARIA

The European Court of Human Rights has today notified in writing its Chamber judgment[1] in the case of Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria (application no. 14134/02).

The Court held unanimously that there had been:
a violation of Article 10 (freedom of expression) of the European Convention on Human Rights; and,
a violation of Article 13 (right to an effective remedy) of the Convention.

Under Article 41 (just satisfaction) , the Court awarded the applicants 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,500 for costs and expenses. (The judgment is available in English and French.)

1. Principal facts

The applicants are Glas Nadezhda EOOD, a limited liability company set up in 2000 and based in Sofia, and its only member and manager, Anatoliy Elenkov, a Bulgarian national, born in 1972 and living in Sofia. Mr Elenkov is a Christian and a member of the Protestant Church in Bulgaria.

In August 2000 Glas Nadezhda EOOD applied to the State Telecommunications Commission (the “STC”) for a licence to set up a radio station to broadcast Christian programmes in and around Sofia. On 2 November 2000 the STC refused to grant the licence. That refusal was based on a decision taken on 2 October 2000 by the National Radio and Television Committee (the “NRTC”) which found that, on the basis of the documents submitted by Glas Nadezhda EOOD, the proposed radio station would not meet its requirements to make social and business programmes or to target regional audiences. The proposals also failed to fully meet its requirements to produce original programmes, to ensure audience satisfaction and to provide the professional and technological resources required.

Glas Nadezhda EOOD brought proceedings before the Supreme Administrative Court for judicial review of the STC’s decision. It submitted in particular that the courts should first examine whether the NRTC’s decision was lawful before ruling on the STC’s decision. The NRTC had not explained why the applicants’ documents had failed to meet its requirements, in breach of the rules of procedure and the requirement that administrative decisions be reasoned. The Supreme Administrative Court dismissed that application on the ground that the STC was bound by the NRTC’s decision and could not review its lawfulness. That court could not examine the lawfulness of the NRTC’s decision either because the proceedings in question were against the STC. It could only review the NRTC’s decision in separate proceedings.

Glas Nadezhda EOOD’s ensuing application for judicial review of the NRTC’s decision was dismissed on 28 December 2002. The Supreme Administrative Court held that the NRTC had total discretion in assessing whether an application for a broadcasting licence had met certain criteria and that that discretion was not open to judicial scrutiny.

In the meantime, Mr Elenkov attempted to obtain a copy of the minutes of the NRTC’s deliberations, which were meant to be available to the public under the Access to Public Information Act 2000. Despite his requests and a court order, Mr Elenkov has not yet had access to those minutes.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 18 October 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Peer Lorenzen (Danish), President,
Snejana Botoucharova (Bulgarian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Margarita Tsatsa-Nikolovska (citizen of “the former Yugoslav Republic of Macedonia”),
Rait Maruste (Estonian),
Mark Villiger (Swiss)[2], judges,

and also Claudia Westerdiek, Section Registrar.

3. Summary of the judgment[3]

Complaints

Relying on Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression), the applicants complained that Glas Nadezhda EOOD was refused a broadcasting licence. They also complained under Article 13 (right to an effective remedy) about the ensuing judicial review proceedings.

Decision of the Court

Article 10

The Court noted that the interference with the applicants’ freedom of expression had stemmed entirely from the NRTC’s decision, which had been binding on the STC by law.

The NRTC had not held any form of public hearing and its deliberations had been kept secret, despite a court order obliging it to provide the applicants with a copy of its minutes. Furthermore, the NRTC had merely stated in its decision of 2 October 2000 that Glas Nadezhda EOOD had not or had only partially corresponded to a number of its criteria. No reasoning was given to explain why the NRTC came to that conclusion or why it had exercised its discretion to deny a broadcasting licence.

No redress had been given either for that lack of reasoning in the ensuing judicial review proceedings because it had been held that the NRTC’s discretion had not been reviewable. That, together with the NRTC’s vagueness concerning certain criteria for programmes, had denied the applicants legal protection against arbitrary interference with their freedom of expression. Indeed, guidelines adopted by the Council of Europe’s Committee of Ministers in the broadcasting regulation domain called for open and transparent application of regulations governing licensing procedures and specifically recommended that “[a]ll decisions taken ... by the regulatory authorities ... be ... duly reasoned [and] open to review by the competent jurisdictions”.

Consequently, the Court concluded that the interference with the applicants’ freedom of expression had not been lawful and held that there had been a violation of Article 10.

Article 9

Given its findings under Article 10, the Court considered that it was not necessary to examine separately whether there had been a violation of Article 9.

Article 13

The Court found that the approach taken by the Supreme Administrative Court in the applicant’s case, which had involved refusing to interfere with the NRTC’s discretionary powers, had fallen short of Article 13 requirements, which obliged the domestic authorities to examine the substance of the Convention complaint. That meant examining whether the interference with the applicants’ rights had answered a pressing social need and had been proportionate to the legitimate aims pursued. The Court therefore held that there had been a violation of Article 13 in conjunction with Article 10.

b) How does the law on obtaining information work in Azerbaijan?http://www.mediarights.az/index.php?lngs=eng&id=8

c) Senior lecturer in law vacancy at the National University of Ireland, Galway:http://www.nuigalway.ie/news/vacancies.php?v_id=1556
attached the minutes of the September meeting of the Steering Committee.

d) Applications sought for the John Smith Fellowship Programme 2008http://www.johnsmit hmemorialtrust. org/web/site/ Programme/ how_to_apply. asp

e) Everyone's Guide to By-Passing Internet Censorship for Citizens Worldwidehttp://deibert. citizenlab. org/Circ_ guide.pdf
- OpenNet Initiative: http://opennet. net/

f) The Protection of Journalistic Sources - EC and ECHR Perspectives - Wednesday 31 October 2007 18:00 to 19:30
http://www.biicl. org/events/ view/-/id/ 208/

g) First General Assessment of Central African Media recommendationshttp://portal. unesco.org/ ci/en/ev. php-URL_ID= 25487&URL_ DO=DO_TOPIC& URL_SECTION= 201.html

h) ICNL-Cordaid Civil Liberties Prize http://www.icnl. org/prize/

i) Organization for Security and Co-operation in Europe - The Representative on Freedom of the Media - 4th South Caucasus Media Conference - Media self-regulation in the South Caucasus - Towards Independent and Responsible Media
Tbilisi, 11-12 October 2007http://www.osce. org/documents/ html/pdftohtml/ 27325_en. pdf.html

j) The Seminar at PCMLP on Monday 22 October at 4.30 pm
“Cybercrime: Illegal content and communications”

Speaker: Ian Walden, Professor of Information and Communications Law and Head of the Institute of Computer and Communications Law Centre for Commercial Law Studies Queen Mary, University of London

For details about the Seminar Series hosted by PCMLP http://pcmlp. socleg.ox. ac.uk/html/ Michaelmas2007. pdf

k) Please find below an English translation of the Indonesia Supreme Court Judgment in Soeharto v. Time Asia Inc.

Sent: Wednesday, October 03, 2007 10:55 AM

Subject: Judgment

Dear all,

Please find attached an English translation of the Supreme Court Judgment, prepared by Zamira Loebis which has been amended with our minor revision.

Best regards,

Lubis, Santosa & Maulana

(Emblem of the Central Jakarta District Court)

COPY JUDGMENT

THE SUPREME COURT OF THE REPUBLIC OF INDONESIA

ISSUED BY THE CENTRAL JAKARTA DISTRICT COURT
IN
JAKARTA

NUMBER: 3215 K/PPT/2001 JO NO:338/PDT.G/1999/PN/JKT/PST.

IN A LAWSUIT BETWEEN

H.M. SOEHARTO

A G A I N S T

TIME INC. ASIA, ET AL.

Ruled by the Council of Judges: The Supreme Court of the Republic of Indonesia

On the date of : 30 - 08 – 2007

Head Judge : German Hoediarto, SH.

Member Judge : H. Muhammad Taufik, SH.

Member Judge : M. Bahauddin Qaudry, SH.

Substitute Court Registrar : Budi Hapsari, SH.

This verdict consists of : 35 (thirty five) pages

(stamped and signed by Deputy Court Registrar of the Central Jakarta District Court)
CORIANA J. SARAGIH, SH., MH.
Civil Service No: 040060848
Copy Civil Case Judgment on the level of : Cassation

From: The Supreme Court of the Republic of Indonesia Date: August 30, 2007

Number: 3215 K/PDT/2001 Jo. No. 338/PDT.G/1999/PN.JKT.PST.

It is registered here:
That this notice on the content of the Judgment of the Supreme Court of the Republic of Indonesia has been notified to:
- the Appellant in Cassation, previously Plaintiff/Appellant on September 24, 2007
- The Cassation Defendants previously Defendants/Appeal Defendants on September 24, 2007.

-----------------------------------------------------------------------------------------

Written pursuant to the original document on September 25, 2007

This copy judgment is issued on September 25, 2007

On behalf of the Cassation Defendants, previously Defendants/Appeal Defendants

Deputy Registrar
Central Jakarta District Court

(stamped on duty stamp and signed by)

CORIANA J. Saragih, SH., MH
Civil Service No: 040060848

Payment Receipt at the cashier
On September 25, 2007
Typing fee : Rp 8,750,-
Stamp : Rp 6,000,- +
Total amount : Rp 14,760,- (signature of recipient)

Note:
- Strike out the unnecessary
- Always make sure that the date and number of Judgment /Ruling, together with the
names written on the folder of the duplicate/photo copied of the FIRST PAGE OF THE
JUDGMENT/RULING are the same as those on this page.
JUDGMENT
Number: 3215 K/PDT/2001
IN THE NAME OF JUSTICE FOUNDED ON THE ONE AND ALMIGHTY GOD
T H E S U P R E M E C O U R T
examined the civil law suit on the rank of cassation
has decided to decide as follows in the law suit of:
H.M. SOEHARTO, residing in Jl. Cendana No. 8, Central Jakarta, in this case has given the power of attorney to: JUAN FELIX TAMPUBOLON, SH., MH. et al, lawyers that have an office in Jl. Cendana No.6, Central Jakarta, based on the special power of attorney dated on April 18 2001, Cassation Appellant, previously Plaintiff/Appelant;
A g a i n s t
TIME INC. ASIA, residing in 34/K Citicorp Center, 18 Whitfield Rd, Causeway Bay, Hong Kong;
1. DONALD MARRISON, as Editor “TIME” Magazine Asia, redising in 34/K Citicorp Center, 18 Whitfield Rd, Causeway Bay, Hong Kong;
2. JOHN COLMEY, whose address in Jakarta is unknown
3. DAVIT LIEBHOLD, whose address in Jakarta is unknown
4. LISA ROSE WEAVER, residing in Jl. Sukabumi No.2, Menteng, Central Jakarta;
5. ZAMIRA LUBIS, residing in Jl. Kencana No.31, Manggarai, South Jakarta;
6. JASON TEDJASUKMANA, residing in Jalan Empu Sendok No.11, Kebayoran Baru, South Jakarta; The Cassation Defendants, previously the Defendants/Appeal Defendants;
The said Supreme Court;
Upon reading the documents concerned;
Considering that based on the said documents it turns out that the now Cassation Appellant previously the Plaintiff, has filed a suit against Cassation Defendants previously Defendants in the Central Jakarta District Court in principle on the following arguments:
that the Plaintiff is the Great General of the Indonesian National Army (Retired) and a former President of the Republic of Indonesia;
that the Defendant I to Defendant VII have carried writings and pictures about the Plaintiff in the Asian Edition of “Time” Magazine dated May 24 1999 Vol.153 No.20, starting from page 16 to page 28, particularly on the cover page, page 16, 17 and 19, of which among others, that had been written by Defendant III and Defendant IV;
that on the cover page of the “Time” Magazine, it carries “SUHARTO INC. How Indonesia’s longtime boss built a family fortune” (translated freely as: SUHARTO company “How the Indonesian leader has for a long time built a family wealth”) (evidence P-1), however, in reality, there is no such thing as Suharto Inc. and it is not true that what is referred to as Suharto Inc. (freely translated as: “Suharto Company”) exists;
that on pages 16 and 17 there is a picture of H. M. Soeharto embracing pictures of a house (evidence P-1); The picture is tendentious, it is insinuative and it creates an impression as if the Plaintiff is a greedy person, while the house is not owned by the Plaintiff, therefore it is an insult and a slander and or an act that violates the law;
that on page 16 there are words that reads “emerged that a staggering sum of money linked to Indonesia has been shifted from a bank in Switzerland to another in Austria, now considered a safer haven for hush-hush deposits” (freely translated as: “there are reports that money in an enormous amount related to Indonesia has been transferred from a bank in Switzerland to another bank in Austria, which has now been considered as a safe heaven for secretive deposits”) (evidence P-3) and it is followed by page 7 that the Plaintiff quoted as follows : “Time has learned that $9 million of Suharto money was transferred from Switzerland to a nominee bank account in Austria (freely translated as : Time has managed to find out that US $ 9 billion that Suharto has transferred from Switzerland to a certain bank account in Bank Austria”) (evidence P-4). Whereas in reality the Plaintiff has never had any money neither in Switzerland nor in Austria, moreover
transferring money from Switzerland to Austria”;
that on page 19 there are words that the Plaintiff quotes as follows: “it is very likely that none of the Suharto companies has evern paid more than 10% of its real tax obligation” (freely translated as: “It seems that none of the companies owned by Suharto has ever paid more than 10% of their tax obligation”) (evidence P-5). The Plaintiff does not have any company that can be referred to as “Suharto companies” (freely translated as” “companies of Suharto’s”), moreover the obligation to pay company tax.;
that Defendant I to Defendant VII in their capacity as aforementioned, know and or are supposed to know, that such writing and picture are tendentious, insinuative, and provocative, nonetheless Defendant I to Defendant VII went on with writing and putting the picture;
that therefore the act that was carried out by Defendant I to Defendant VII of carrying the said writing and picture that should have been aimed in the name of public interest by giving true and objective information to the community (the world community in general and Indonesian community in particular), in reality has produced people’s reaction, particularly the people of Indonesia, which is very negative in nature for the Plaintiff. The writing and picture about the Plaintiff has clearly insulted and slandered the Plaintiff’s reputation and or is a violation of law. The Plaintiff has indeed felt harmed by act carried out by Defendant I to Defendant VII by carrying the said writing and the picture;
that the said writing and picture about the Plaintiff has caused harm to the Plaintiff, not only because the said writing and picture have led to an a misleading impression and conclusion (“misleading conclusion”) for the Indonesian people in particular and the international community in general, but it is also due to the Plaintiff’s status as mentioned on the aforementioned in item 1 of the aforementioned claim. The writing and picture about the Plaintiff as mentioned are based solely on vague sources and cannot be legally justified;
that against the writing and pictures about the Plaintiff, the Plaintiff has 2 (two) times sent summons or complaints (“warning letter”) (evidence P-6 and P-7) to Defendant I, but Defendant I could not comply with the Plaintiff’s summon;
that since Defendant I to Defendant VII could not prove the accuracy of the writing and picture that contain insult and slander against the Plaintiff’s reputation, therefore it is proven that Defendant I to Defendant VII had done an act that violates the law as it is written down in Article 1356 of the Civil Code and or had carried out slander against the Plaintiff as written down in Article 1572 of the Civil Code that has caused harm to the Defendant. To restore the Plaintiff’s reputation, therefore Defendant I to VII have to state that they regret the writing and picture and that they withdraw the said writing and picture about the Plaintiff and that they have to apologize to the Plaintiff. That the said statement must be announced through newspapers and weekly news magazines and electronic media that has national and international circulation, of which as follows:
- “Kompas” newspaper ;
- “Suara Pembaruan” newspaper ;
- “Media Indonesia” newspaper ;
- “Republika” newspaper ;
- “Suara Karya” newspaper ;
- “Time” Magazine of Asia, Europe, Atlanta (United States)
editions ;
- “Tempo” magazine ;
- “Forum Keadilan” magazine ;
- “Gatra” magazine ;
- “Gamma” magazine ;
- “Sinar” magazine ;
Electronic Media, which include the Televisi Republik Indonesia (TVRI), Rajawali Citra Televisi (RCTI), Surya Citra Televisi (SCTV), AnTV, and Televisi Pendidikan Indonesia (TPI) ;
Of which it has to be carried on 1 (one) full page, with which the text and designed will be decided later by the Plaintiff and to be published 3 (three) times in a row, whereas the airing has to be carried out in seven days in a row;
Above and beyond the Defendant I to Defendant VII must pay compensation to the Plaintiff jointly and severally, of which the list is as follows:
Material damages, which include:
the cost that the Plaintiff has paid, which consists of meeting cost, consultation cost, travel cost, accommodation cost, the total amount of which is Rp 280,000,000,- (two hundred and eighty million rupiah), the equivalent of US $ 40,000 (forty thousand American dollars) at the exchange rate of Rp 7,000,-/US dollar;
non-material damages that the Plaintiff suffers, among others is the difficulty in restoring the honor and reputation and people’s trust on the Plaintiff. Considering the status, position and dignity and prestige of the Plaintiff as aforementioned on item 1 of this law suit, and the status and capacity of the Defendant I as a magazine of an international scale, the Plaintiff therefore demands a compensation in the amount of Rp 189 trillion (one hundred and eighty trillion rupiah), the equivalent of $ 27 billion (twenty seven billion American dollar) at the exchange rate of Rp 7000,-/US dollar. Should the demand for the compensation be granted, it will be given to the Country to be used in the interest of the Indonesian people and nation to alleviate poverty;
that based on the aforementioned matters the Plaintiff requests the Central Jakarta District Court to grant verdicts as follows:
1. To accept all of the Plaintiff’s claim;
2. To declare that Defendant I to Defendant VII have done slander and or acted in violation of law;
3. To order Defendant I to Defendant VII to restore the dignity and reoutation e of the Plaintiff by declaring that they regret and withdraw the writing and picture of the Plaintiff that they have carried, apologize through print media, which include newspapers and weekly magazines with national and international circulation, which consist of : “Kompas” newspaper, “Suara Pembaruan” newspaper, “Media Indonesia” newspaper, “Republika”newspaper, “Suara Karya” newspaper, “Time” Magazine of Asia, Europe, Atlanta (United States) editions, “Tempo” magazine, “Forum Keadilan” magazine, “Gatra” magazine, “Gamma” magazine, “Sinar” magazine; with the size of one full page with text and design decided by the Plaintiff later and to be published 3 (three) times in a row, whereas the airing in media electronics has to be carried in 7 (seven) consecutive days on: Electronic Media, such as: the Televisi Republik
Indonesia (TVRI), Rajawali Citra Televisi (RCTI), Surya Citra Televisi (SCTV), AnTV, and Televisi Pendidikan Indonesia (TPI);
4. To order Defendant I to Defendant VII to pay compensation jointly and severally to the Plaintiff, which include:
Material damages in the amount of Rp 280,000,000,- (two hundred and eighty American dollars), the equivalent of US $ 40,000 (forty thousand American dollar) at the exchange rate of Rp 7,000,-/US dollar;
and
non-material damages in the amount of Rp 189 trillion (one hundred and eighty trillion rupiah), the equivalent of US $ 27 billion that has to be paid by Defendant I to Defendant VII jointly and severally to the Plaintiff all at once;
5. To declare that the judgment in this lawsuit can be executed in spite of objection, appeal or cassation;
6. To order Defendant I to Defendant VII to pay the cost engendered by the lawsuit;
O r :
To give a fair and wise judgment by the court ;
Considering, that against the lawsuit, the Defendants had brought
forth an exception of which in principle based on the following arguments:
The Plaintiff’s Claim is Premature :
1. That because feeling that his reputation has been slandered and himself insulted by the writing in Asian Edition Time Magazine dated May 24 1999 with a cover story of the said “Suharto Inc”, the Plaintiff had therefore reported the Time Magazine party to the Republic of Indonesia Police Headquarters to be further investigated and be claimed based on its criminal aspect (evidence T.4a,b);
2. That since the criminal law suit had been registered at the Central Jakarta District Court by the Plaintiff, the Plaintiff’s said report of crime to the Police has never been brought to trial, moreover be decided by a criminal Judge;
3. That therefore whether the content of the May 24 1999 edition of Time Magazine with the “Suharto Inc.” cover story is indeed a slander against the Plaintiff (quod non), consequently the Civil Judge that examined and presided over the a quo civil lawsuit has yet to wait for the judgment by the criminal Judge that has already had a verdict by judgment in relation with the Plaintiff’s report of crime to the Police Headquarters’
In this case, Article 29 of the AB (Algemene Bepalingen van wetgeving voor Indonesia – The General Rule of Legislation for Indonesian) that reads “While undergoing a process of criminal claim, an indemnification civil lawsuit that is being handled by a civil Judge, is to be postponed, without cutting down the means of prevention permitted by the laws;
4. That therefore the Plaintiff’s complaint against the Defendants in this lawsuit under the argument that the content of the May 24 1999 edition of Time Magazine with the cover story of “Suharto Inc.” harms the reputation of and is a slander against the Plaintiff is premature (too early), that its timing is not right since until now there has yet to be a verdict by judgment by a criminal judge (inkract van gewijsde) that declares the Defendants have committed a crime of slander against the Plaintiff or has committed a crime of defamation;
In addition to the argument based on Article 29 of AB as aforementioned, Article 1372 of the Civil Code also stipulates the presence of a criminal verdict by judgment, that reads in the Article as follows, “a criminal claim about slander is aimed at getting a compensation”’
That therefore, by law, the indemnification claim in a civil lawsuit based on slander cannot be brought to court and cannot continue before there is a verdict by judgment by a criminal Judge, that declares that a crime of slander has been committed as stipulated in Chapter XVI Article 310 and so forth of the Criminal Code, as a perfect evidence and argument in order to bring forth a slander in a civil lawsuit;
Therefore, the Plaintiff’s claim for compensation from the Defendants due to that the Defendants have committed slander is premature and too early, considering that to date there has yet to be a verdict by judgment by a Criminal Judge that rules that the Defendants have committed a crime of slander;
5. That as it is has been known, the Interim Attorney General Ismudjoko, SH. has announced that the investigation of the case of H.M. Suharto in regards of the foundations has been terminated. It should be noted that the termination of the investigation of the case of H.M. Soeharto, which is pursuant to the mandate of the TAP MPR (Stipulation of the People’s Consultative Council) No. XI/MPR/1998 on the “Implementation of a State that is Clean, Free of Corruption, Collusion and Nepotism”, has been stopped. The Chairman of the MPR, Prof. Dr. Amien Rais, has even announced to the Mass Media, that a TAP MPR on the settlement of H.M. Soeharto’s case would also been issued. Which means, the case involving the Plaintiff cannot be deemed as over;
6. That therefore, prior to the presence of:
6.1. A verdict by judgment on the Plaintiff’s claim/report against Time Magazine to the Indonesian Police in regard of the content of the said May 24 1999 Time Magazine Asian edition with the “Suharto Inc.” cover story;
6.2. A verdict by judgment against the Plaintiff in relation with the investigation that has been carried out by the Government/Attorney General of the Republic of Indonesia against former President H.M. Soeharto, pursuant to the mandate of said TAP MPR No.XI/MPR/1998:
accordingly it is premature to make a judicial conclusion that the content of the publication of the May 24 1999 Time Magazine Asia edition with the cover story of “Suharto Inc.” is not true, moreover to make a judicial conclusion that the content of the said news is aimed as a defamation and slander of the reputation or an act of violation of law against the Plaintiff;
7. That therefore if the Court goes as far as forcing itself to accept
and comply with the Plaintiff’s claim, which is premature in nature, thus certainly a Court verdict of which the arguments are premature and the ruling is premature and in contradiction between one and another;
8. That since the Plaintiff’s claim was brought forward before there is a criminal court judgment pursuant to the Plaintiff’s report to the Police, thus the premature claim has to be declared unacceptable in the name of law.
The parties in the lawsuit is incomplete :
1. That the way “SUHARTO INC” is written as the headline on the cover page and “THE FAMILY FIRM” on page 16 in relation with the whole content of the May 24 1999 Time Magazine article, has fully complied with the universal principles and standards of journalistic news and writing, which is adopted in the Journalistic Code of Ethics of Indonesian Journalist, in which on Article 9 it stipulates that “Indonesian journalists write a title that reflects the content of the news”;
2. That if the Plaintiff read the whole of the said news carefully, accurately and in its entirety, thus this civil lawsuit should have never taken place, since it has fully complied with the universal code of ethics. The use of the headline “SUHARTO INC.” and “THE FAMILY FIRM” reflects the whole content of the news in its entirety of the May 24 1999 Time Magazine Asia edition, where the said use of words does not only relate with the family of the Plaintiff (H.M. Soeharto) and the people who are close to the Plaintiff, as can be read in pages: 18, 10, 20, 21, 23, 24, 25, 26, 27 and 28 of the May 24 1999 Time Magazine Asia edition;
3. That if the Plaintiff had carefully and accurately read the May 24 1999 Time Magazine Asia edition as a whole, thus it should be clearly read that what has been written by Time Magazine about “SUHARTO INC” is what has been interchangeably mentioned as “the Suharto family” (paragraph 3), “the former first family”, (paragraph 4), “Suharto and his six children” (paragraph 6), “Soeharto family companies” (paragraph 19), “the family” (paragraph 21), the Soeharto children’s interests (paragraph 31), “the family property” (paragraph 35), and “the family business” (paragraph 35);
4. That therefore, the Plaintiff’s understanding that the news in the May 24 1999 Time Magazine Asia edition involved only the Plaintiff, as can be read through the arguments and basis of the Plaintiff’s lawsuit, not only that it is not consistent with the reality and truth, but it is also leads to a complete mistake in understanding;
5. That considering that the whole content of the news does not only relate to the Plaintiff (H.M. Soeharto) in person, but relates also with the other parties mentioned in the news, therefore, if the Plaintiff has an objection to the content of the news, the Plaintiff should have also included the other parties mentioned in the news published in the May 24 1999 Time Magazine Asia edition as the parties involved in the lawsuit, which is as Defendant or at the least as interested Defendants. The fact that there has been no initiative from the said parties to file a lawsuit, therefore it can be understood that they are silently in agreement with the truth of the May 24 1999 Time Magazine Asian edition. Thus, since those parties have not been involved as parties in this lawsuit, therefore the Plaintiff’s claim lacks necessary parties (exception plurium litis consortium);
6. That besides the aforementioned arguments, H.M. Soeharto is not qualified as a Plaintiff, because if it is true that the news in the May 24 1999 Time Magazine Asian edition is a violation of law or a slander (quod non), therefore the parties mentioned in the said news will have had filed the same lawsuit, thus they have silently agreed with the truth of the news. Thus, in this lawsuit H.M. Soeharto is not qualified as a Plaintiff.
7. That based on the aforementioned arguments, the Defendants thereof appeal that the Central Jakarta District Court reject the Plaintiff’s claim or at the least declare that the claim is unacceptable (niet onvankelijk verklaard – unaccepted statement), because there is a concern that against the same problem/law suit there should arise repeated lawsuit brought forth by the aforementioned other parties mentioned in the article, which may cause:
- A legal uncertainty in Indonesia;
- An inconsistency and lack of uniformity in court judgments in
Indonesia on the same problem/lawsuit;
- It is a violation of the foundation and principles of judicial administration, which is the principle of “simple, immediate, and low-cost judicial administration”, as stipulated in the Law No. 14/1970 on the Principle Provisions of Judge Authority and its Amendment and Addendum;
Considering that upon the lawsuit the Central Jakarta District Court has made a provisional judgment, which is the judgment No. 338/PDT.G/1999/PN.JKT.PST. dated November 9 1999, of which the ruling is as follows:
In the Exception:
1. Reject the Defendants’ exception insofar as regarding the exception on the authority to preside over the case;
2. Declare that the Central Jakarta District Court has the authority to hear and preside over the law suit between the Plaintiff and the Defendants;
3. Order the parties involved to continue the court hearing on the lawsuit;
4. Postpone the payment of the lawsuit cost until the verdict has been made;
Considering that upon the lawsuit the Central Jakarta District Court has made a judgment, which is judgment No. 338/PDT.G/1999/ PN.JKT.PST. dated June 6 2000, of which the ruling is as follows:
IN THE EXCEPTION:
- Reject the Defendants’ exception:
IN THE LAWSUIT:
- Reject all of the Plaintiff’s claims;
- Order the Plaintiff to pay the lawsuit cost in the amount of Rp 5,029,000,- (five million and twenty nine thousand rupiah);
Considering that in the appeal level of the Plaintiff/Appellant it has been strengthened by the Jakarta High Court with the judgment No. 551/PDT/2000/PT.DKI. dated March 16 2001;
That after this final judgment was made known to the Plaintiff/Appellant on April 12 2001 then upon the judgment, the Plaintiff/Appellant, through his attorneys, pursuant to a special power of attorney dated April 18 2001, has verbally appealed for a cassation on April 24 2001 as registered in the cassation request deed No. 63/SRT.PDT.KAS/2001/PN.JKT. PST.jo No. 338/Pdt.G./1999/PT.Jkt.Pst. which has been produced by the Central Jakarta District Court Registrar, the request of which was followed by a Memory of Cassation that contains arguments that was received by the Central Jakarta Court Registration on May 3 2001;
That furthermore the Defendants/Appeal Defendants had been informed on May 15 about the memory of cassation from the Plaintiff/Appellant, which had been received by the Central Jakarta District Court on May 18 2001.
Considering that the request for cassation a quo including the arguments had been informed to the opposing party, thus it has been carefully brought up within a time frame and means that are stipulated by the laws, thus the cassation appeal can be formally accepted;
Considering that the arguments brought forward by the Cassation Apellant in the memory of cassation, of which the main points are as follows:
1. That judex facti has been wrong in implementing the law in its court proceedings or has failed to fulfill the requirements that are obliged by the laws;
The Cassation Appellant did not agree with the consideration in judgment by the Jakarta High Court that only took over the judgment by the Central Jakarta District Court to be used as its own judgment, while the Jakarta High Court did not by any means provide the basis and argument to take over the consideration, as the consideration on page 5 of the Jakarta High Court judgment, which states:
“Considering that after the High Court carefully examined the documents concerning the dossier of the lawsuit, which consist of the transcript of the District Court proceedings, letters of evidence and other letters that had been brought forth by the two parties involved in the lawsuit, the formal duplicate of the Central Jakarta District Court judgment on June 6 2000 Number: 338/Pdt.G/1999/PN.JKT.PST., and putting into consideration the memory of appeal that had been brought forth by the attorneys of the Appellant, formerly known as the Plaintiff, and the memory of the counter appeal of the Defendants, the High Court is in the opinion that the judgment by the Judge of the first degree is based on accurate grounds and considerations and is right according to the law, therefore it is taken over by the High Court to become its own consideration in making a judgment on this lawsuit”;
That the Jakarta High Court as such is insufficient and should accordingly be annulled.
Such opinion complies with the jurisprudence of the Supreme Court of the Republic of Indonesia over other civil lawsuits;
The Cassation Appellant is in agreement with the judgment by the Supreme Court of the Republic of Indonesia No. 638 K/Sip/1969 dated July 22 1970 that stated:
“Judgments made by District Court and High Court that have been insufficiently motivated (“onvoldoende gemotiveerd”) have to be annulled, in this case the District Court whose judgment is strengthen by the High Court after deliberating witnesses, evidences that have been submitted, continues to decide “that for that reason the Plaintiff’s claim could be partly accepted” with no evaluation whatsoever on the counter evidence presented by the original Defendants party”;
In addition, also through the judgment by the Supreme Court of the Republic of Indonesia No. 9 K/Sip/1972, dated August 1972 that stated:
“High Court Consideration that only agrees on and turns into its own the matters put forward by the Appellant in his memory of appeal, such as if the High Court is in agreement with the judgment by the District Court, is insufficient;
From the High Court’s detailed considerations, the Supreme Court has to comprehend the judgments that have been made by the District Court that are deemed erroneous by the High Court;
(Summary of the jurisprudence of the Supreme Court of the Republic of Indonesia II: Civil Law and Civil Procedure, number XIV.6. pages 237 and 238);
Therefore, the judgment by Jakarta High Court No.551/ PDT/2000/PT.DKI. that simply took over the judgment by Central Jakarta District Court No. 338/Pdt.G/1999/PN.JKT.PST. dated June 6 2000, without providing grounds and reasons for the taking over of the said Central Jakarta District Court, is insufficient and should accordingly be annulled;
That the Central Jakarta District Court judgment No. 338/Pdt.G/1999/ PN.JKT.PST. dated June 6 2000 does not include allegations, is in contradiction with Article 184 verse 1 of the HIR;
That judex facti has not had complied with the provisions of court proceeding or procedure as stipulated by the laws, at the least stipulation on judicial procedure law;
The Central Jakarta District Court judgment No. 338/Pdt.G/1999/ PN.JKT.PST. dated June 6 2000 has been made not complying with the stipulation on Aricle 184 verse (1) of the HIR that obligates (imperative in nature) the inclusion of claim in a court judgment. In actual fact, the judgment is judex facti proven to be not including the Plaintiff’s/Appellant’s claim, which means that the a quo court judgment, which has substantially made in contradiction with the laws, is annulled and does not have any legal force;
It has become a constant and fixed jurisprudence that a court judgment that does not include the allegations is annulled and in contradiction with Article 184 verse (1) of the HIR;
The Supreme Court of THE Republic of Indonesia Number: 312 K/ Sip/1974 dated August 19 1975 states that:
A District Court judgment that involves that the facts of the case have not bee arranged properly, which is:
1. It does not include the allegations;
2. It does not the Defendants’ reply, whereas the reply has in turn included a reconvention;
Such matters of which are contradictory to the stipulations in Article 184 verse (1) of the HIR;
(Summary of the jurisprudence of the Supreme Court of the Republic of Indonesia II: Civil Law and Civil Procedure, number XIV.6. pages 237);
In this lawsuit, the imperative obligation to ad in the Plaintiff’s/ Appellant’s claim is not included in the a quo judgment, the consequence of which blurs the main point of the dispute of the real facts of the case. The a quo judgment simply includes a response in the form of the Defendants’/Appeal Defendants’ exception, therefore the a quo Central Jakarta District Court judgment is in contradiction to Article 184 verse (1) of the HIR and can be deemed as annulled;
Considering that a violation of rules of order in the examination on the degree of appeal, thus in the matter that the High Court Judgment has been annulled, the Supreme Court has the capacity to judge the lawsuit by itself, both in terms of the application of the law and in he assessment of the result of the verification, as considered based on the Supreme Court of the Republic of Indonesia judgment No. 981 K/Sip/ 1972 dated October 31 1974, which is as follows:
“In the case that a High Court judgment is annulled, the Supreme Court judges the lawsuit by itself, both in terms of the application of the laws and in the assessment of the result of the verification of the evidence:;
(Summary of the jurisprudence of the Supreme Court of the Republic of Indonesia II: Civil Law and Civil Procedure, page 257);
2. That judex facti the law on “slander” (Article 1372 of the Civil Code) has been inappropriately applied;
That the Cassation Appellant is not in agreement with the Jakarta High Court judgment that takes over the a quo Central Jakarta District Court judgment;
The main point of the law suit is whether or not there is a violation of law, in this case “slander” (Article 1372 of the Civil Code), that has been committed by the Cassation Defendants against the Cassation Appellant about the writing and picture that is tendentious, insinuative, and provocative in nature, which is:
a. “SUHARTO INC. How Indonesia’s longtime boss built a family fortune”
(free translation” SUHARTO company “How the Leader of Indonesia for a long time develops his family’s wealth”);
b. The picture of the Appellant embracing, among others, a picture of a house;
c. “emerged that a staggering sum of money linked to Indonesia has been shifted from a bank in Switzerland to another in Austria, now considered a safer haven for hush-hush deposits” (freely translated as: “there are reports that money in an enormous amount related to Indonesia has been transferred from a bank in Switzerland to another bank in Austria, which has now been considered as a safe heaven for secretive deposits”);
d. “Time has learned that $9 million of Suharto money was transferred from Switzerland to a nominee bank account in Austria (freely translated as : Time has managed to find out that US $ 9 billion that Suharto has transferred from Switzerland to a certain bank account in Bank Austria”);
e. “it is very likely that none of the Suharto companies has evern paid more than 10% of its real tax obligation” (freely translated as: “It seems that none of the companies owned by Suharto has ever paid more than 10% of their tax obligation”);
3. That judex facti has inappropriately applied the law on the meaning of “Slander” (Article 1372 of the Civil Code) which was only taking into consideration the accounts by experts. That the judex facti consideration in the judgment to reject the Cassation Appellant’s formerly Plaintiff’s/Appellant’s based on the a quo accounts, for the reason that the Appellant raised an objection based on the following grounds:
a. The account by expert witnesses: Prof. Dr. Andi Abdul Muis, SH., Goenawan Mohammad, and Sabam P. Siagian, should have been limited only to give a testimony based on each of their expertise, and not on the law or the facts of the lawsuit, moreover to give an opinion on what has been disputed as has been elucidated on number 2 letter a to e of the memory of cassation;
b. However, based on the facts in the court hearings, the expert witnesses’ testimonies are in actuality directly touch the “law”, particularly in the subject of whether or not it is proven that a “slander” has occurred, and facts that the expert witnesses are not qualified to give opinion on the cover of “TIME” magazine (page 69 of the a quo Central Jakarta District Court judgment) and conclude that the picture is within the limit of decency (page 70 of the a quo Central Jakarta District Court) and carries on to be concluded to be not a slander;
4. That the Cassation Appellant does not agree with the consideration of the Jakarta High Court judgment which takes over the a quo Central Jakarta District Court judgment in regards of the basis of the claim (main point of the dispute) on the aforementioned item 2 (a) and (b) that makes a conclusion that the writing and picture does not breach decency merely based on the experts’ testimony;
Considering that from the testimonies by the three expert witnesses on the said accounts the Court can accept it, it can be concluded that the cover picture of the May 24 1999 Time magazine Asian edition cannot be qualified as slander (belediging, defamation) against the Plaintiff”;
Considering that the use of the word “Inc.” at the end of the Plaintiff’s name (Suharto) cannot be qualified as “slander”;
Furthermore the Central Jakarta District Court gives a consideration (referring to a quo Central Jakarta District Court judgment page 74);
“Considering, that as argued by the Defendants in their reply, that the picture of the house originates from picture-taking, which is a photograph of a house owned by one of the Plaintiff’s family members, according to the Court’s opinion, there is no legal grounds to declare the picture as “deliberately defames the Plaintiff”;
5. That before the Cassation Appellant gives grounds of objection on
the unproven fact of the element of “intentionally defame the Plaintiff”, it should be emphasized the issues in relation to the house that is in 8 Winning Road London No. 2, in Great Britain. Based on the facts deliberated in the court hearings, neither the evidences from the expert witnesses nor the correspondences, not a single one of the tools of evidence is able to prove that the house in 8 Winning Road London No. 2, in Great Britain is owned by the Cassation Appellant, moreover owned by a family member of the Cassation Appellant.
Even if it is owned by a family member of the Cassation Appellant, quod non (whereas it is not), thus the reason is not accurate since by law a Cassation Appellant’s property does not have any relation with the property of the family member of the Cassation Appellant. In addition, the Cassation Appellant has refuted all of the Defendants’ arguments as contained in the counter plea. Even if there is a stance of not refuting some argument, it doesn’t mean that the Cassation Appellant agrees with the Defendants’ argument;
6. That the Cassation Appellant does not agree with the considerations of the a quo judgment on item (a) and (b) of the aforementioned main point of the dispute for the reason that the Cassation Defendants cannot prove the truth of the writing and picture that contains defamation as mentioned in this item 7. If it is true that the Cassation Defendants do not have any intention (opzet) or at the least do not mean (culpa) to carry out defamation against the Cassation Appellant, however, based on knowledge, awareness and intelligence that the Cassation Appellants posses, thus the Cassation Appellant should have been aware about the consequences that may come out from the said writing and picture;
That once again the Cassation Appellant emphasizes, if judex facti is believe that there is a relevance between Article 1372 of the Civil Code and Article 310 of the Criminal Code (page 66 of the Court judgment) or “smaad” (slander), as it is with Article 310 verse (1) and (2) of the Criminal Code, where there are words that contain element of offence, such as “intentionally” in front of the words “attack honor or reputation of others”;
The Cassation Appellant is aware that the Cassation Appellants’ stereotypical and repeated defense arguments is that the Cassation Appellants don’t have “an intention” or don’t “intentionally” do slander, which looks as if is to prevent the occurrence of a “plan” (“opzet”) as one of the elements of Article 310 of the Criminal Code, which according to the Cassation Defendants is in accord with the elements of Article 1372 of the Civil Code;
7. That the Cassation Appellant realizes that the Cassation Defendants’ argument that will not give defense argument as though the Cassation Defendants’ action only comply with the element of “culpa”, not “opzet”, for the reason that the doctrine and jurisprudence that has been developed validate that it is not “animus injuriandi” that is required by Article 310 of the Criminal Code jo. Article 1372 of the Civil Code, instead, sufficient awareness, knowledge or understanding of the Defendants that their statement is objective, which will cause and attack a person’s honor or reputation, in casu the Cassation Appellant. Thus, it is not that the main objective to slander or that there is a deliberate intent to slander a person that is the condition for a punishable crime and the understanding about the consequence that is caused by the statement (written and oral) that has been made. The criteria or measurement to use to establish
whether or not there is “slander” is by using the Objective Criteria, which is by not making an issue about whether or not there is an element of “culpa” or “opzet”, but it is sufficient that there are awareness, knowledge or understanding by the Cassation Defendants that their statement (which is done in writing) will cause damage to and attack the honor and reputation of a person, in this case the Cassation Appellant. The judex facti consideration is only based on subjective criteria, which is obtained from the expert witnesses, who are in actuality cannot decide whether or not a statement (written or oral) has or has not attacked a person’s dignity or reputation. Subjective criteria cannot by any means decide whether or not a writing and picture can be declared to have or have not attacked a person’s dignity and honor, neither can it be used as an objective measurement to decide on whether or not there is “defamation” vide
Article 1372 of the Civil Code, it is only based on this Subjective Criteria, which that is a development from the materiele belediging (material offence), and at the same time it is an acknowledgement of a breach of the boundaries of decency that prevails within the society or materiele wederechtelijkbeid (materially unlawful)(in criminal law) and onrechtmatige daad (unlawfulness/doing an injustice)(in civil law). The writing and picture carried by the Cassation Defendants is broadly onrechtmatige daad (unlawfulness/doing an injustice)(in civil law) and has gone beyond the limits needed to reach the objective and goal of in the name public interest, at which point offends the feeling and honor and the private life of the Cassation Appellant or can be deemed as a violation against the prevailing principles of decency. This is in accord with the earlier part of the judgment that considers that the measurement that will be used in considering this case is
the conditions stipulated in the Hoge Raad judgment in 1919 (Cohen Lindenbaum arrest). One of the objective criteria of the law offense action is that whether or not the Defendants’ action goes against decorum, decency, prudence, that one has to put into consideration against another in living in a society;
This objective criteria is in line with the convention on the freedom of information that states that freedom of the press is not absolute in nature, but has its limits, which is, among others, it is forbidden to carry news that substantially carries:
a. National security and public order;
b. Expression to war or to national, racial or religious hatred;
c. Incitement to violence and crime;
d. Attacks on founders of religion (attacks on founders of religion that leads to violation of offense of “blasphemy”);
e. Public health and moral;
f. Rights, honor and reputation of others (rights, honor and reputation of others, which generally carry “defamation offense”;
g. Fair administration of justice (generally in relation to offenses against the Court, then a form of “contempt of court”);
(Prof. Oemar Seno Adji, SH., Perkembangan Delik Pers di Indonesia, cetakan pertama, Jakarta: Penerbit Erlangga, 1990, halaman 35 – The Development of Press Offence in Indonesia, first edition, Jakarta: Erlangga Publisher, 1990, page 35);
Freedom of the Press doesn’t mean an absolute freedom (freedom without limits), and the Defendants acknowledge that there is such limitation on press freedom, which is, among others, in relation with limitation/prohibition on carrying news that contains slander/attacks on religion (attacks on founders of religion). In this case, Defendant I had carried a picture of the Prophet Muhammad in Time magazine of April 16 2001 edition (an action of which is a slander/attack on religion) and upon his action (of carrying the picture of the Prophet Muhammad) Defendant I apologized to all Muslim in the world (vide Tempo Daily, Monday April 23 2001, Terbit Daily, Tuesday April 24 2001);
Judex facti doesn’t use the benchmark of objective criteria of such, for the reason that if that’s the case, judex facti will certainly arrive at the conclusion that by carrying the said writing and picture, the Defendants have had violated the order of civility, status and reputation of the Cassation Appellant, that is, an offense against the benchmark of rights, honor and reputation of others (of which in general is a slander in an a quo lawsuit);

8. That from the jurisprudence in Indonesia based on the Supreme Court of the Republic of Indonesia judgment No. 1265 K/Pdt/1984 dated January 30 1984, it is stated that: “a carried news that contains articulatif onrechtmatige daad (articulated injustice) is a news that violates or goes beyond the limits of decency (onrechtmatige daad in broad terms) is clearly an act of slander”;
The a quo legal consideration of the Supreme Court judgment is as follows:
“Issues that have been circulated by the Cassation Defendants/Defendants in the Selecta magazine is an act against/that violates the law for the reason that the way of disclosure in the Cassation Defendants/originally Defendants’ writing goes beyond what’s necessary to reach the intent and objective of in the name of public interest and based on facts that took place in the Blue Bird taxi company so that it is deemed to have offended the Cassation Appellant/original Plaintiff;
“Therefore also, the action with the said writings/articles, the Cassation Defendants/original Defendants has been proven to have committed an offence of slander against the Cassation Appellant/original Plaintiff, both as an individual and as the Chief Director of PT Blue Bird, so that the indemnification lawsuit can be accepted in the amount that the Supreme Court thinks suitable and fair and the Cassation Defendants/original Defendants were also ordered to restore the Cassation Appellant/original Plaintiff by publishing a public notice of formal apology in newspapers”;
(The Supreme Court of the Republic of Indonesia Indonesian Jurisprudence, the Supreme Court of RI publisher, 1998, pages 1 to 28);
Based on the aforementioned reason, the meaning of “slander” vide Article 1372 of the Civil Code cannot be meant based on Subjective Criteria reduced to expert witness testimony only. The Measurement to decide such “slander” is: whether or not the said writing and/or picture has breached the limit of decency within the broad meaning of onrechtmatige daad, and whether or not the Defendants’ awareness, knowledge and understanding of the consequences that rise from the said writing and/or picture in a psychological form of the Cassation Appellant, which is, as though the article has the nature of “passing a judgment” against others. This certainly violates the principle of presumption of innocence and is a trial by the press;
9. That judex facti has inappropriately applied the law, particularly on item (c) of the main point of dispute. The Cassation Appellant is not in agreement with the judex facti’s considerations (pages 74 to 81 of the a quo Central Jakarta District Court Judgment) that gives the following conclusion:
“Considering, that based on the aforementioned description, the Court is in the opinion that the publication carried by Time (the Defendant) on the Plaintiff cannot be qualified as “deliberately defames with a letter (smad schrift – defame) as meant in Article 310 verse (1) of the Criminal Code;
The Cassation Appellant emphasizes that if judex facti thinks that there is a connection between the element of inadvertence according to Article 310 verse (1) of the Criminal Code with Article 1372 of the Civil Code, thus the objective criteria is the basis to decide whether or not it is proven that there is an element of “intent”; That means, it is not “animus injuriandi” that fits to be used as subjective criteria such as the testimony of the expert witnesses, which is stipulated by Article 310 verse (1) of the Criminal Code jo. Article 1371 of the Civil Code, instead, it is sufficient that there awareness, knowledge or understanding on the part of the Cassation Defendants that their statement will objectively lead to a consequence of and attack the honor and reputation of others. Thus, the condition for verification is is not the main objective to (deliberately) slander others;
Judex facti’s consideration merely assesses the dispute from the position of the testimony if the expert witnesses on journalism and linguistics, whereas the main point of dispute is an act of unlawful act, “slander” in particular (Article 1372 of the Civil Code);
That judex facti has not had given sufficient considerations (onvoldoende gemotiveerd – sufficiently motivated); That the most important element that the judex facti has neglected to put into consideration in its judgment is that in the problem of slander by writing as with in casu, is that there is an intent to slander or at the least an intent, both clearly and discreetly, to humiliate, regarding what is obvious in the way of the Defendants’ presentation and tone;
To read a news, as conversely to present a news, doesn’t merely concern merely a series of dead letters, it instead concerns the way it is presented and the tone of the writing;
From the way of presentation and tone of writing the tone to humiliate the dignity and honor of the Cassation Appellant is obvious. It is this particular matter that has been neglected by the judex facti, and therefore is not being considered in its judgment. Thus so the judgment in this case is a judgment that has been insufficiently motivated (onvoldoende gemotiveerd) and therefore, in compliance with the established jurisprudence of the Supreme Court of the Republic of Indonesia, the judgment has to be annulled;
The facts in the court hearing is that it has not been proven that the Cassation Appellant has transferred an amount of money, which is US$ 9 billion from a bank account in Switzerland to another in Austria;
The Cassation Defendants has completely been unable to prove, both through the expert witness testimony and through letters, the truth about the existence of act of transfer of US $ 9 billion fund of money of the Cassation Appellant, neither has it been able to prove about which Swiss bank that has carried out the said transfer, nor the Austrian bank that has been at the receiving end of the act of transfer, therefore, the publication on item (c) of the main points of dispute is substantially false and the Cassation Defendants as the creators of the article have to be legally accountable based on the journalistic ethics;
In addition, the notoir facts have proven that, Mr Andi Ghalib, SH. And Prof. Dr. Muladi, SH., successively as the Attorney General and the Minister of Justice of the Republic of Indonesia (at the time) had traveled to Switzerland and Austria, and it had been declared that it had not been proven that there was money owned by the Cassation Appellant neither in the form of nominee account nor in any other kind of account whatsoever;
And what’s more, similar publication that had taken place before Time Magazine, vide T.41, T.42 and T.39, doesn’t mean to be a reason to eliminate the law against the element of intent to carry out slander. Based on such objective criteria it has been proven that the Cassation Defendants have an intention or intentionally carry out slander that offends the honor and reputation of the Cassation Appellant. Even though it is true that there have been other publication of similar kind about the Cassation Appellant, quod non, if the Cassation Defendants’ publication in this lawsuit violates the law, thus the fact that there are other publication of similar kind doesn’t eliminate the element of intent on the part of the Cassation Defendants as based on the violation of Article 1372 of the Civil Code;
10. That in addition, judex facti shouldn’t have used evidences T.39, T.42, and T.42 (a quo page 78 of the Central Jakarta District Court judgment) as a grounds for the reason that the evidences do not by any means show a proof of allegation, either an allegation according to the laws or an allegation by the Judge, on the occurrence of the transfer of the Cassation Appellant’s fund (a transfer of money in the amount of US$ 9 billion). The Cassation Defendants’ evidence as such clearly do not show that there is a proof about the indirect evidence about the occurrence of allegation as according to Article 1915 of the Civil Code;
11. That in regards of item (d) of the main points of dispute, the Cassation Appellant doesn’t agree with judex facti’s consideration ( pages 81 to 86 of the a quo Central Jakarta District Court judgment) that gives a conclusion:
“Considering, that by reason that the Defendant’s publication as such can be deemed as carried out “in the name of public interest” and “complies with the need of the era”, thus, according to the law, the Defendants’ publication doesn’t qualify as “humiliation or humiliation by writing” as meant in Article 310 verse (3) of the Criminal Code”. The Cassation Appellant doesn’t agree with the consideration of the a quo judex facti judgment. That the reason of the occurrence of “public interest” is provided by the laws (Article 310 verse (3) of the Criminal Code and Article 1376 of the Civil Code) to eliminate a conviction or punishment that has clearly been proven to have been carried out by someone;
That means, in casu, supposing that the Defendants have committed “slander” that causes injury to the Cassation Appellant’s honor and reputation by violating Article 1372 of the Civil Code jo. Article 310 verse (1) of the Criminal Code, however, such action is justified on the grounds of in the name of “public interest”;
The action is formally unlawful for the reason that it violates Article 1372 of the Civil Code jo. Article 310 verse (1) of the Criminal Code, and materially loses its unlawfulness nature based on the ground of public interest;
Consideration by judex facti on page 86 of the aforementioned a quo judgment clearly fits as contradictory criteria that substantially contains an error. If judex facti thinks that the Defendants’ publication is regarded as “in the name of public interest”, thus the said publication (writing or picture) carried out by the Defendants should have been proven and qualified as “humiliates and humiliates with writing” that violates Article 1372 of the Civil Code jo. Article 310 verse (1) of the Criminal Code;
Whereas judex facti a quo considerations in fact declares that the publication by the Defendants doesn’t qualify as “humiliating” and is regarded as “in the name of public interest”;
Judex facti consideration in connection with the Cassation Appellant’s presumption of the KKN (corruption, collusion and nepotism) is not relevant to the main points of the dispute, judex facti has even given an excess of consideration regarding the letter of the Attorney General of the Republic of Indonesia dated May 10 2000 which is in actuality is not a tool of evidence and is not relevant to the a quo lawsuit;
It has never been proven in court hearings that the Cassation Appellant possesses companies, and therefore, it has not been proven or can be proven in regards of the tax payment that is not more than 10% (ten percent) of the actual tax obligation;
That in addition, the element of “public interest” is that of Article 310 verse (3) of the Criminal Code, of which based on judex facti’s own consideration in the beginning part of its judgment is a criminal responsibility. Whereas, in the beginning part of its consideration, judex facti also considers that the main issue of this lawsuit in casu is civil responsibility. It is very clear here that there is a contradiction between one arguments and the other. This reason only is in actually sufficient to be used as a reason in order to annul judex facti judgment in the degree of cassation examination;
That there is an argument that contradicts another between the part of judgment (consideration), which is integrated with the other part of the judgment.
In one part in its legal consideration regarding the exception part on page 58 of the a quo Central Jakarta District Court judgment, judex facti considers that what is claimed by the Cassation Appellant (formerly Plaintiff/Appellant) against the Cassation Defendants (formerly Defendants/Appeal Defendants) is civil accountability, whereas the stipulation pointed by the Cassation Defendants is a stipulation that is regulated in the Press Laws (No. 11 1966 jo. Laws No. 4 1967 jo. Laws No. 21 1982, particularly Article 15 of the Laws, which is on the accountability over criminal and administrative claim. This means that judex facti in its consideration in the exception has from the beginning been in the opinion that the legal issue or ground of the Cassation Appellant is a legal issue about an unlawful act or on grounds of onrechtmatige daad;
However, on the other part of its judgment, in particular on page 86 of judex facti’s judgment, it considers that the publication by the Defendants doesn’t qualify as humiliating or humiliating with writing as meant in Article 310 verse (3) of the Criminal Code. Both considerations, clearly contain arguments that contradict one another in regard of accountability;
Therefore, thus judex facti, as a consequence, have made an inconsistent legal consideration. Thus, as a consequence as well, judex facti has erroneously interpret facts and has also carried out an error in legal implementation;
Considering, that from then on the Supreme Court will consider
reasons that have been put forward by the Cassation Appellant:
regarding reason ad.1 :
that this reason cannot be justified, by reason that the High Court has the authority to take over the District Court’s legal considerations as its own considerations if the considerations as such is accurate and correct, moreover the Central Jakarta District Court judgment dated June 6 2000 No. 338/PDT.G/1999/PN.JKT.PST. doesn’t contradict Article 184 (1) of the HIR, by reason that the claim allegations are enclosed in the interval judgment on November 9 1999, which is not separated from the final judgment of the a quo lawsuit;
regarding reason ad. 2 to ad.12 :
that the reasons can be justified, by reason that judex facti in its judgment doesn’t give sufficiently motivated consideration (onvoeldoende gemotiveerd) on the act of tort in the broad meaning of Article 1365 of the Criminal Code, thus the judex facti judgment has to be annulled and the Supreme Court will give its own considerations as explicated in the following;
- that judex facti in its judgment is in the opinion that the action by the
Defendants in the publication of picture and writing in TIME magazine
Asian edition of May 24 1999 Vol 153 Bi, 20, is not qualified as “humiliating and humiliating with letters” as meant by Article 310 verse (3) of the Criminal Code and reject the Plaintiff’s claim based on the expert witnesses that gave their legal opinion by assessing facts/evidences in court, therefore the said picture and writing, whether or not they violate the principle of proper diligence and prudence in living in a society is not based on the objective criteria of an act of tort Article 1356 of the Civil Code;
- That furthermore judex facti in its judgment considers that in the a quo
lawsuit that is claimed by the Plaintiff from the Defendants is a civil accountability, whereas the stipulation pointed by the Defendants, which are those regulated in Press Laws (Laws No. 11 1966 jo. Laws No. 4 1967 jo. Laws No. 21 1982, particularly Article 15 of the Laws, which is on the accountability over criminal and administrative claim;
- that in connection with the above considerations, the Defendants deny
that the picture and writing in TIME magazine Asian Edition May 24 1999 originated from previous news, either from domestic or foreign news and is an a freedom to express opinion and express oneself through the media and the necessity of the society to gain information and news that are fully protected and guaranteed by laws, whereas the Plaintiff has passed on warnings because the picture and writing doesn’t contain any truth and cannot be accounted for;
- that although the Plaintiff has consecutively passed on warnings in
evidences P.6 and P.7, however, they have not been taken into account and responded by the Defendants; the Defendants shouldn’t have acted as such manner, since the Defendants have sufficient awareness, knowledge or understanding that the picture and writing will offend one’s honor and reputation, therefore the Defendants’ action complies with the objective criteria of an act of tort, which goes against decency, diligence and prudence in living in a society as it has gone beyond the boundary of what is needed to reach the intent and objection in the name of public interest;
- that furthermore, since the picture and writing in TIME magazine Asian
Edition May 24 1999 Vol. 153 No. 20, created by the Defendants, has been widely circulated, and turns out to have gone beyond the limits of decency, diligence and prudence, so that the act of tort that slander the reputation and honor of the Plaintiff as the Great General of the Indonesian Army (Retired) and as former President of the Republic of Indonesia, thus the civil accountability that is claimed by the Plaintiff from the Defendants can be granted according to sentiments of appropriateness and fairness, it is thus so with the non-material damages that the Plaintiff suffers, whereas the material damages in the lawsuit is rejected for reason that it has not been itemized in detail;
Considering, based on the aforementioned considerations, there are
sufficient reasons to grant the cassation request of the Cassation Appellant: H.M SOEHARTO and annulling the judex facti and the Supreme Court take into its own hand the judgment of this lawsuit with the following ruling;
Considering, that because the Cassation Defendants are the defeated parties, thus they have to pay the cost of the lawsuit in all degrees of the court;
Taking into consideration the articles from Laws No. 4 2004, Laws No. 14 1985 as emended by Laws No. 5 2004 and other related legal provisions;
R U L E S:
Grants the cassation requests of the Cassation Appellant: H.M. SOEHARTO;
Annuls the judgment by Jakarta High Court No. 551/PDT/2000/PT. DKI. dated March 16 2001 that strengthens judgment by Central Jakarta District Court No. 338/PDT.G/1999/PN.JKT.PST. dated June 6 2000;

RULES ON BY ITSELF:
1. Grants the Plaintiff’s claim in part;
2. Declare Defendants I to VII as have committed tort ;
3. Order Defendants I to VII to apologize to the Plaintiff for the
publication of the writing and picture of the Plaintiff in the said Time Magazine Asian Edition May 24 1999 Vol. 152 No. 21 through print media: Kompas newspaper, Suara Pembaruan newspaper, Media Indonesia newspaper, Republika newspaper, Suara Karya newspaper;
- Time Magazine of Asia, Europe, and Atlanta (United States) editions;
- Tempo magazine, Forum Keadilan magazine, Gatra magazine,
Gamma magazine, Sinar magazine;
in 3 (three) consecutive publication;
4. Order Defendants I to VII to jointly and severally pay a non-material
damages to the Plaintiff in the amount of Rp 1,000,000,000,000,- (sic) (1 trillion rupiah;
5. Reject the other claims and furthermore;
Order the Cassation Defendants to pay the lawsuit cost in all
degrees of court, of which on this cassation degree is of the amount of Rp200,000,- (two hundred thousand rupiah);
Thus decided upon in a Supreme Court deliberation meeting on Tuesday, August 28, 2007 with German Hoediarto, SH., Supreme Judge that has been appointed by the Head of the Supreme Court as the Chairman of the Council of Judges, H. Muhammad Taufik, SH. And M. Bahaudin Qaudry, SH. as member of the Council of Judges, and has been announced in an open court to the public on Thursday August 30 2007 by the Head of the Council of Judges with the presence of H. Muhammad Taufik, SH and M. Bahaudin Qaudry, SH., members of the Panel of Judges and assisted by Budi Hapsari, SH. as the Substitute Court Registrar, without the presence of the two parties.

Members Judge: Chairman:
Signed/H. Muhammad Taufik, SH signed/German Hoediarto, SH
Signed/M. Bahauddin Qaudry, SH

Costs : Substitute Court Registrar
1. Stamp duty …..…… Rp 2,000,- signed/
2. Editing ……….…… Rp 1,000,- Budi Hapsari, SH
3. Cassation dministration Rp 197,000,-
Total = Rp 200,000,-
=================

For the copy:
The Supreme Court of the Republic of Indonesia
c/o Registrar
Civil Junior Registrar

(signed and stamped)

MOH. DAMING SANUSI, SH, MH
Civil Service No. 040030169
13. Various/Useful Links

l) Reporters Committee released analysis of Mukasey's First Amendment and freedom of information background
http://www.rcfp.org/news/releases/20070920-reportersc.html

m) Speech by Sir Christopher Meyer at the 9th Annual Conference of the Alliance of Independent Press Councils of Europe (AIPCE)
http://www.pcc.org.uk/assets/111/Sir_Christopher_Meyer_AIPCE_dinner_speech.pdf

n) House of Commons: Culture, Media and Sport - Seventh Report http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcumeds/375/37502.htm

o) If you’re in London or Oxford on the 10th October, please come to the Press Complaints Commission Open Day in Oxford Town Hall at 4pm which is co-organised by PCMLPhttp://www.pcc.org.uk/events/events.html

p) Also if you are in London or Oxford, please join us for the Monday seminars organised by PCMLP.
Socio-Legal Studies Seminar Series: Michaelmas Term 2007
Challenges to Media Policy, Law and Regulation in the
21st Century

Convenor – Dr. Danilo Leonardi, Head of Programme in Comparative Media Law and Policy

Seminars to be held on Mondays in Seminar Room E, Manor Road Building, Manor Road, Oxford, 4.30pm-6.00pm. Light refreshments will be available following the Seminar.

Week 2 Philip Schlesinger, Professor of Cultural Policy and Academic
15th October Director, Centre for Cultural Policy Research, University of Glasgow.
“From the creative industries to the creative economy?”

Week 3 Ian Walden, Professor of Information and Communications Law
22nd October Head, Institute of Computer and Communications Law Centre for Commercial Law Studies Queen Mary, University of London
“Cybercrime: Illegal content and communications”

Week 5 Thomas Gibbons, Professor of Law, University of Manchester.
5th November “Assessing OfCom’s regulatory style”

Week 6 Marie McGonagle, Head of Department and Director of the LL.M. in 12th November Public Law, National University of Ireland, Galway.
“Impact of AVMD in Ireland”

Week 7 Colin Munro, Professor of Constitutional Law, University of
19th November Edinburgh.
“Broadcast Advertising Restrictions”

Week 8 Eric Barendt, Professor of Media Law, University College London.
26th November “Privacy Reform”

Posted: Oct 31 2007, 07:49 (/newsletter_October_2007) [ Return to top ]

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