Legal Literacy - Article 310 of the Criminal Code concerning defamation has been amended by Constitutional Court Decision No. 78/PUU-XXI/2023. This article discusses the differences between the old Article 310 of the Criminal Code and Article 433 of Law 1/2023 concerning the new Criminal Code which will come into effect in 2026.

The wording of Article 310 of the Criminal Code After Constitutional Court Decision No. 78/PUU-XXI/2023

Historically, the crime of defamation was regulated in Article 310 of the old Criminal Code (KUHP) which is still in effect when this article is published. The wording is as follows:

  1. Anyone who intentionally attacks the honor or reputation of a person by accusing them of something, which is clearly intended to be made public, is threatened with defamation with a maximum imprisonment of 9 months or a maximum fine of Rp4.5 million.
  2. If this is done by writing or pictures that are broadcast, displayed or affixed in public, then it is threatened with written defamation with a maximum imprisonment of 1 year and 4 months or a maximum fine of Rp4.5 million.
  3. It does not constitute defamation or written defamation, if the act is clearly carried out in the public interest or because it is necessary to defend oneself.

Article 310 paragraph (1) of the Criminal Code has been amended and declared conditionally unconstitutional by Constitutional Court Decision No. 78/PUU-XXI/2023. This means that the article is still valid, but with a limited meaning so that it does not conflict with the 1945 Constitution.

“Anyone who intentionally attacks the honor or reputation of a person by accusing them of something verbally, which is clearly intended to be made public, is threatened with defamation with a maximum imprisonment of nine months or a maximum fine of four thousand five hundred rupiah”

The following are the elements that must be fulfilled in order for someone to be charged with this article:

  1. anyone;
  2. intentionally;
  3. attacking someone's honor or reputation;
  4. by accusing something;
  5. verbally;
  6. which is intended to be made public.

The wording of Article 433 of Law 1/2023 and its Explanation

Article 433 of Law 1/2023 concerning the new Criminal Code which will come into effect in 2026 regulates the crime of defamation. Here is the complete wording:

  1. Anyone who verbally attacks the honor or reputation of another person by accusing them of something, with the intention that the matter be made public, shall be punished for defamation, with a maximum imprisonment of 9 months or a maximum fine of category II, namely Rp10 million.
  2. If the act as referred to in paragraph (1) is carried out by means of writing or images that are broadcast, displayed, or affixed in public places, the person shall be punished for written defamation, with a maximum imprisonment of 1 year and 6 months or a maximum fine of category III, namely Rp50 million.
  3. The actions as referred to in paragraphs (1) and (2) are not punishable if carried out in the public interest or in self-defense.

The explanation of Article 433 paragraph (1) of Law 1/2023 explains the nature and object of the crime of defamation. Here are the important points:

Nature of Defamation:

  • Insulting act: Carried out by accusing, either verbally, in writing, or in pictures.
  • Attacking honor and reputation: Causes harm to the accused.
  • The accusation does not have to be a crime: It can be another detrimental act.

Object of Defamation:

  • Individuals: Defamation only applies to individuals.
  • Excluding government institutions or groups of people: Defamation of institutions or groups is not regulated in this article.

Similarities between Article 310 of the old Criminal Code and Article 433 of the new Criminal Code

Both in Article 310 of the Criminal Code and Article 433 of Law 1/2023 concerning defamation, there is one important similarity: legal proceedings will not proceed without a complaint from the victim.

That is:

  • Victims must actively report acts of defamation to the authorities.
  • The authorities will not follow up on defamation cases without a complaint from the victim.

The reason behind this provision:

  • Giving victims the right to determine whether they want to prosecute the perpetrator or not.
  • Prevent the misuse of defamation articles for personal gain.

Differences between Article 310 of the old Criminal Code and Article 433 of the new Criminal Code

Based on Constitutional Court Decision No. 78/PUU-XXI/2023, there is a difference between Article 310 paragraph (1) of the Criminal Code and Article 433 of Law 1/2023 concerning defamation, namely Article 433 of Law 1/2023 emphasizes that the perpetrator commits defamation verbally. This element is not regulated in Article 310 paragraph (1) of the Criminal Code. Meaning:

  1. Article 433 of Law 1/2023 expands the scope of the crime of defamation.
  2. Verbal defamation can now be punished under Article 433 of Law 1/2023.

The Constitutional Court (MK) in Constitutional Court Decision No. 78/PUU-XXI/2023 stated that Article 310 paragraph (1) of the Criminal Code concerning defamation is conditionally unconstitutional.

Meaning:

  • Article 310 paragraph (1) of the Criminal Codestill applies, butits meaning is limitedso as not to conflict with the 1945 Constitution.
  • The affirmation regarding "verbal acts" in Article 433 of Law 1/2023 can be adopted to clarify the meaning of Article 310 paragraph (1) of the Criminal Code.
  • The aim is:
    • To provide legal certainty in the application of Article 310 paragraph (1) of the Criminal Code.
    • Prevent differential treatment and discrimination.
    • Eliminate ambiguity in the application of the article.