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Sharing a Content, Leads You to the Bar?

Updated: Aug 31

By: Clara Viriya (clara.viriya@launcher.id)

In this era of information disclosure, everyone can have the opportunity to raise their opinion as well as their voice, however of course it must be accompanied by a responsibility to prove that the information disseminated is valid. If it is proven, then it is allowed to be shared, or distributed by the appropriate manner/ relevant guidelines. Moreover, as the malignant Corona Virus Disease (COVID-19) still not manageable, where there has not been found a vaccine or an effective medicine to cure it until now, therefore there are a lot of irresponsible parties that fraudulently seeking one sided profit by claiming the discovery of a powerful drug or vaccine against the COVID-19, and creating as well as sharing the fake news or we have also known with hoax.

If we take a look further on hoax definition, according to Oxford Dictionary, hoax is a humorous or malicious deception, meanwhile on the Indonesia Dictionary, hoax is a fake news. The term of hoax is not known in Indonesian laws and regulations. But there are several regulations governing hoax news or fake news, such as on the Law No. 11 of 2008 on Information and Electronic Transactions as amended by the Law No. 19 of 2016 (EIT Law), Criminal Codes as well as the Law No. 1 of 1946 on Criminal Law Regulations.

Hoax or Fake News under the EIT LAW

According to EIT Law, anyone who knowingly and without right spreads false and misleading news that results in consumer losses in Electronic Transactions shall be imposed to imprisonment of up to 6 (six) years and/or a maximum fine of Rp. 1 billion. The EIT Law does not clarify what "false and misleading news" entails. however, the law itself explicitly controls hoaxes (fake news) that result in losses in electronic transactions to consumers. Furthermore, fake news spreading through online media (social media) that has other uses can also be punished under EIT law depending on the quality of the disseminated material, such as:

- If the content contains acts of decency, gambling, insults and / or defamation, extortion

and/or threats it can be imposed under Article 27 of EIT Law;

- If the content causes hatred based on ethnicity, religion, race or SARA, it shall be punished under Article 28 of the ITE Law;

- If it contains threats of violence or intimidation aimed at personally, it is subject to punishment under Article 29 of the EIT Law.

Hoax or Fake News according to Criminal Code

Furthermore, Article 390 of the Criminal Code also stated that anyone who with the intention of benefiting himself or others by opposing the right to reduce or increase the price of merchandise, fonds or money securities by broadcasting false news, shall be sentenced to a maximum imprisonment of two years and eight months.

Hoax or Fake News under the Criminal Law Regulation

Under the Law No. 1 of 1946 on Criminal Law Regulations, it also stated that anyone who broadcasts a news or issues a notification which can publish disturbance among the people, while he should be able to think that the news or notification is a fake, shall be punished by a maximum imprisonment of three years.

The words "fake" and "mislead" are two different things. In the phrase "spreading fake news" what is regulated is the action, while in the word "misleading" what is regulated is the result of this action which makes people view wrong/ mislead.

Hoax or spreading fake news is a criminal act. Therefore, the act of spreading information about the COVID-19 which contains fake news through an electronic system is punishable under the provisions of the EIT Law and its amendments.