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In an era of instantaneous mass communication, maintaining the delicate balance between freedom of speech and legal accountability has become increasingly important. As such, defamation laws are integral to regulating the dissemination of information whilst safeguarding the public’s interests.
Overview of Legal Frameworks
Australia
In 2006, all Australian states and territories enacted uniform defamation laws as reflected in the Defamation Act 2005.[1] The ultimate reason for introducing this nation-wide uniform law is to promote consistency across all jurisdictions, circumventing any challenges that would arise with eight varying systems of defamation laws.[2] Since then, the Act has undergone significant reform. The first major set of amendments took effect in most jurisdictions from 1 July 2021. More recently, a second wave of major reforms has been introduced in several Australian jurisdictions, focusing in particular on online publications and the defense of innocent dissemination, which is designed to protect intermediaries. As of the date of this article, these reforms have been enacted in Victoria, New South Wales, and the Australian Capital Territory, effective from 1 July 2024.
While minor procedural differences between jurisdictions still exist, the uniform statutory regime eliminates any “forum shopping” where plaintiffs might otherwise choose the most favourable jurisdiction to bring their claim.[3] Accordingly, when defamatory remarks are published in more than one Australian state or territory, the law of the place most closely connected with the harm will be applied.[4] The adoption of this statutory choice of law rule alongside the harmonization of defamation laws across Australia provides a practical legal framework and prevents plaintiffs from exploiting any jurisdictional differences to their advantage.
In Australia, a defamation claim may be brought without proof of special damage. The key elements a plaintiff must establish are namely:[5]
Besides those key elements, there is now since added in 2021 amendment an additional statutory requirement to establish a cause of action for defamation: the plaintiff must demonstrate that the publication has resulted in, or is likely to result in serious harm to their reputation.[6] As such, “serious harm” has become the fourth key element in a defamation claim, although despite the lack of a statutory definition and ongoing judicial uncertainty over its meaning.[7] Moreover, the act also abolishes the common law distinction between libel and slander.[8]
In relation to who can bring a defamation claim, the general rule is that companies and other legal entities (incorporated associations, trade unions, local councils) cannot sue for defamation.[9] However, there are certain exceptions such as if the corporation is not-for-profit or the corporation may pursue a claim of defamation through an employee.
Indonesia
Indonesia treats defamation as both a civil and criminal offence. While Article 28E of the 1945 Constitution explicitly guarantees freedom of speech a provision absent from the Australian constitution defamation remains widely criminalized under multiple laws.
Indonesia’s Criminal Code not only distinguishes between libel and slander, but other types of defamation such as “calumnious insinuation” are defined.[10] Under Article 310 of the Criminal Code, the following elements must be met to prove a defamation claim:[11]
Libel has an additional requirement: defamatory statement must be in written or pictorial form, and have been “broadcasted, shown, or posted in public.”[12] In contrast, Australia has eliminated the distinction between libel and slander to support policy objectives of offering a pragmatic, simplified the approach to defamation proceedings as the focus is primarily on the harm rather than the medium.
Defamation in Indonesia is further regulated under Law No. 11 of 2008 Electronic Information and Transactions, as amended by Law No. 19 of 2016 (“ITE Law”). Article 27(3) ITE Law prohibits the dissemination and distribution of electronic information and/or documents that contain defamatory content. Violating this article can lead to imprisonment for a maximum of two years.
Interestingly, the ITE Law imposes stricter penalties compared to the Criminal Code, where an individual can be sentenced to a maximum of 16 months in prison. This disparity likely reflects the government’s heightened concerns with regulating digital platforms given their unique potential for the rapid dissemination of information to a vast audience. Additionally, many media activists were concerned about the ITE Law’s broad application.[13] However, the constitutional court in a ruling confirmed that the ITE Law did not create a new criminal offence but merely added an element of online defamation to the existing defamation provisions under the Criminal Code.[14]
Finally, a party suffering from defamation can file a civil claim under Article 1365 of the Civil Code based on an unlawful act. Civil claims for defamation will not be granted if it cannot be established that the defamatory communication contains no intent to offend a clear contrast to Australian Law, where intent is unnecessary to establish liability.[15]
Criminal Defamation
Although criminal defamation exists as a statutory offence in Australia, prosecutions are extremely rare as defamation is typically pursued as a civil matter. Leave to initiate criminal prosecution for defamation is only granted in exceptional circumstances where the following conditions are met:[16]
The key elements that constitute a criminal defamation offence are: (1) the person publishing the defamatory material knows it is false, and (2) they intend to cause serious harm, or are reckless as to whether such harm occurs.[17]
Criminal defamation proceedings are more common in Indonesia, with roughly 32 cases recorded between 2020 and 2023.[18] This stands in stark contrast to Australia, where criminal defamation cases are rare. For instance, four applications for leave to prosecute defamation matters were made in the last century in New South Wales.[19]
The Public Interest Defense
Whilst there are numerous defenses to defamation, this article focuses on a key defense that is useful and relevant for the media and broadcasting industry the public interest defense. Below is a table summarizing the key elements of this defense in Australia and Indonesia respectively.
| Australia | The public interest defense has 3 elements: The content pertains to a matter of public interest: this requires an objective test as to whether such content “invites public criticism or discussion.” [20] The defendant believed that the content is in the public interest.[21] see Turley v Unite the Union [2019] EWHC 3547The defendant's belief was reasonable[22]: this is a subjective test and can involve examining the defendant's conduct where relevant to determine their actual belief. In addition to these core elements, the Act provides that the court may take into account a range of non-exhaustive factors, to the extent relevant in the circumstances, such as the seriousness of the defamatory matter, source reliability, efforts to verify information, and whether the subject was given an opportunity to respond, to help assess the reasonableness of the defendant’s belief and the overall context.[23] These factors are not mandatory, so the courts may also take other matters into account. |
| Indonesia | Article 310(3) of the Criminal Code stipulates: “neither slander nor libel shall exist as far as the principal obviously has acted in the general interest or for a necessary defense.” Additionally, recent amendments to the ITE Law, passed in 2023, now include a public interest defense in Article 45(2) in line with the Criminal Code. |
Australia
The public interest defense was introduced during the 2021 amendments to the Uniform Defamation Laws (excluding Western Australia and the Northern Territory). In 2023, Russell v Australian Broadcasting Corporation (No 3) (‘Russell’)marked the first real application of the public interest defence. Former Australian Defense Force officer Heston Russell sued the ABC for defamation over claims his platoon killed an unarmed Afghan prisoner. Both parties accepted that the content of the communication was indeed in public interest however the main point of contention was the third criteria. Specifically, after considering the defendant's conduct, Justice Lee was of the position that ABC journalists did not reasonably believe that content was in the public interest leading to $390,000 in damages for Russell. This was primarily due to their failure to verify facts independently and their reliance on uncorroborated sources.[24]
Russell has set an important precedent for how the public interest defense is to be applied. Further, it emphasizes that media and broadcasting companies must take reasonable steps to verify their information and avoid using language that overstates their level of certainty. This is because a journalist’s conduct surrounding the production of the publication becomes crucial in determining their subjective state of mind to fulfil all three elements of the public interest defense.
Indonesia
A key contrast between Australia and Indonesia is that Indonesia’s public interest defense is much broader in scope, as its legislation does not specify certain elements that must be proven to establish the defense. Additionally, as a civil law jurisdiction, Indonesian courts are not bound by precedent. Thus, giving judges broad discretion in determining whether the defense applies and how.
This ambiguity was highlighted in a recent case involving two activists, Haris and Fatia, who were accused of defamation under the ITE Law after making online statements about mining operations in Papua. Whilst both were acquitted on the basis that their statements were “grounded in fact,” this case has raises concerns about the application of the public interest defense particularly because many contend that their statements addressed a matter of public concern that warranted broader discussion. [25]
While the public interest defense is relatively new in the context of the ITE Law, its inclusion is important. When the ITE law was first introduced without this defense, there was a rapid increase in criminal defamation cases targeting media outlets, journalists, and everyday people on the internet.[26] Nonetheless, to strengthen the public interest defense, Indonesia could benefit from developing formal legal standards and detailed qualification to help judges make determinations. In Australia, the common law system of drawing on precedent aids in doing so. However, given that Indonesia operates under a civil law system, where precedent holds less weight, this may be challenging.
Conclusion
Defamation laws in both Indonesia and Australia aim to balance freedom of speech with regulatory compliance. A key distinction between the two legal systems is that Indonesia places significant emphasis on criminal defamation, while Australia primarily treats defamation as a civil matter. Although the public interest defense is relatively new in both systems, it plays an important role in protecting the media. In Australia, the defense has been applied in Russell, although it has not yet been successfully upheld. Nevertheless, this case has helped define the boundaries of when and how this defense can be applied. In contrast, Indonesia’s public interest defense remains broad, granting judges substantial discretion in determining the circumstances under which it can be relied upon.
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[1] (ACT) Civil Law (Wrongs) Act 2002; (NT) Defamation Act 2006; (NSW) Defamation Act 2005; (QLD) Defamation Act 2005l (SA) Defamation Act 2005; (TAS) Defamation Act 2005; (VIC) Defamation Act 2005; (WA) Defamation Act 2005.
[2] David Rolph, ‘A critique of the national, uniform defamation laws’(2008) 16 Torts Law Journal 207, 208-210.
[3] Ibid 209.
[4] Ibid 208.
[5] Patrick George, ‘Australia Media Law Guide’, Carter Ruck International Media Law Guide (Web Page) <https://www.carter-ruck.com/law-guides/defamation-and-privacy-law-in-australia/>.
[6] Ibid.
[7] McCullough Robertson, ‘Serious harm’ to reputatation – case law development in Queensland defamation law (web page) https://mccullough.com.au/2024/08/26/serious-harm-to-reputation-case-law-development-in-queensland/#_ftn4
[8] David Rolph, Halsbury Laws of Australia (LexisNexus Australia, 2024) 145.
[9] Ibid.
[10] Dewi Savitri Reni, ‘Indonesia Media Law Guide’, Carter Ruck International Media Law Guide (Web Page) <https://www.carter-ruck.com/law-guides/defamation-and-privacy-law-in-indonesia/> (‘Indonesia Media Law’).
[11] Kitab Undang-Undang Hukum Pidana 1915 (Indonesia) art 310.
[12] Reni, ‘Indonesia Media Law’ (n 9).
[13] Eka Nugraha Putra, ‘Indonesia needs a strong public interest defence to stem the tide of online defamation cases’, Indonesia at Melbourne (Web Page) <https://indonesiaatmelbourne.unimelb.edu.au/indonesia-needs-a-strong-public-interest-defence-to-stem-the-tide-of-online-defamation-cases/> (‘Public Interest Defense’).
[14] Ibid.
[15] Arts Law Centre of Australia, ‘Defamation Law Information Sheet’ 4. (‘Defamation Law Information Sheet’).
[16] Shapowloff v Fitzgerald [1966] 2 NSWR 244.
[17] (ACT) Crimes Act 1900 s 439(1); (NSW) Crimes Act 1900 s 529(3); (QLD) Criminal Code s 365(1); (SA) Criminal Law Consolidation Act 1935 s 257; (TAS) Criminal Code s 196(1); (WA) Criminal Code s 345(1).
[18] Andreas Harsono, ‘Indonesia Court Ruling a Boon for Free Expression’, Human Rights Watch (Web Page) <https://www.hrw.org/news/2024/05/01/indonesia-court-ruling-boon-free-expression#:~:text=Powerful%20people%20and%20government%20officials,criminal%20defamation%20cases%20in%20Indonesia.>.
[19] Australian Law Reform Commission Unfair Publication Report 11 (AGPS, 1979) 103-4.
[20] Section 29A(1)(a) of the Defamation Act 2005 (NSW).
[21] Section 29A (1)(b) of the Defamation Act 2005 (NSW).
[22] Ibid.
[23] Section 29A (3) of the Defamation Act 2005 (NSW).
[24] Robert Todd et al, ‘Wrong Vehicle: Russell v Australian Broadcasting Corporation (No 3) and the new defense of public interest’ Ashurst Legal Development (Web Page) <https://www.ashurst.com/en/insights/wrong-vehicle-russell-v-australian-broadcasting-corporation-no-3/>.
[25] Putra, ‘Public Interest Defense’ (n 12).
[26] Ibid.
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