Spill the tea but, don't get burnt!

Sharing content on social media brings about a roller coaster of emotions; it can either be an entertaining or stressful experience, depending on which point of view one chooses to look at. In Stella Monica's case however, the experience was rather unpleasant. Shortly after she shared her experience alongside her three friends while undergoing beauty treatments, she received a legal notice from the owner of the beauty clinic. Five months later, she was visited by the Cyber Crime Team of the East Java Regional Police who brought a warrant along with a report. She then underwent investigation as a witness.

Stella is still undergoing trial at the Surabaya District Court. Kosasih, the legal representative for L'VIORS Clinic in Surabaya, explained that Stella had purposefully tarnished the clinic’s reputation by giving negative feedback and reviews related to the beauty treatments she underwent. “If Stella was not satisfied, she should have directly conveyed this to the doctor who provided the treatments instead of sharing posts on social media that are open for the general public to judge.”

"The report made by the L' VIORS Clinic to the police is not to get back at Stella Monica. What Stella did on Instagram, especially done with the intention to ruin a good name, has legal consequences. This applies not only to Stella, but anyone who commits defamation both on the Internet as well as real life. This is protected by law, "explained Kosasih.

However, Secretary of the Indonesian Consumers Foundation (YLKI) Agus Suyanto feels that the measures the clinic took against Stella are rather extreme. The clinic is somewhat insensitive towards consumer complaints. According to him, the case can be resolved through mediation without the need to go to trial. The clinic’s actions will actually make consumers more hesitant to criticise clinical services even though those suggestions can improve the clinic’s overall services. Moreover, consumer rights are guaranteed by Law No.8/1999 on Consumer Protection.

Throughout 2020, defamation makes up the largest portion of cyber crime reports. The Directorate of Cyber Crime of the National Police Criminal Investigation Agency handled 4,656 cyber crime cases from January to November 2020, 1,743 of which were related to defamation. Therefore, this type of criminal act has garnered many pros and cons not only among the public, but also academics and legal observers.

The problem is that it becomes difficult to gauge defamation because there are many factors that must be taken into consideration. In the case of defamation, the aspect that is sought to be protected is one’s obligation to continue to respect others from an honorary point of view, as well as one’s good name in the eyes of others. Meanwhile, people may share differing views. This is what often causes conflict.

A similar thing happened to Prita Mulyasari, who shared her opinion on the services offered at Omni International Hospital. The hospital found Prita’s story damaging their good name. Because of this, she was reported to the police for defamation.

A recent case involving dr. Richard Lee and Kartika Putri took the public by storm for the same reason. Kartika thought that Richard had intentionally harmed her good name. Kartika found a few statements the doctor had posted on his Instagram story to be rather offensive. “The doctor said, 'ruining the face of another person due to suggestions made by Mbak Karput,’" said Kartika. However, according to Kartika, she never recommended the product, but only introduced it. Even she herself was just about to try the product. This case led to both parties reporting each other to the police.

As seen in the examples above, one’s review and experience of a product or service can be seen as ‘controversial’ or damaging to the brand’s image. So how do you create a review that adheres to all the guidelines while still being able to get your message out?

It is important to remember that in defamation, the one thing guaranteed by law is both the dignity and good name of a party. Therefore, it must be noted that when reviewing or sharing a certain experience online, it is recommended to use neutral language and speak from an honest point of view. Making knowledge-based claims could also help in trying to lessen the chances of being accused of defamation.

At a webinar, PR of Sociolla Mira Monika explained that if someone uses a product and it is not suitable for them, that doesn't mean that the product is inherently bad. It could be that the product is only suitable for people with certain characteristics or problems. "So, in my opinion, the most important thing is that the perspective must take into consideration all sides of the story, even though the experience of trying the product is only exclusive to you," explained Mira.

Content creator Flovivi explained that in reviewing products, one must also have the ability to filter the products. It is important to study the BPOM certificate and do further research on the product’s effects because digital traces are everlasting.

Furthermore, the Constitutional Court after a review interpreted that the implementation of Article 27 paragraph (3) of the ITE Law must satisfy the provisions of Articles 310 and 311 of the Criminal Code (KUHP).

The accusation of defamation can only be proven if two factors are present, namely the harm incurred (both material and non-material damages) and the evidence that a brand or a person’s name has been tarnished. This is what often sparks debate because it is difficult to prove damage done by a statement. The review might have only been a simple suggestion or shallow criticism, but it can also be considered harmful or detrimental to the person on the other end of the line.

Cited from Hukum Online, Josua Sitompul explained that for defamation on social media, the content and its context play a crucial role. Context plays a role in providing a way to carry out an objective assessment of content that may be deemed controversial. Understanding the context includes providing descriptions of the mood of both the victim and the perpetrator, the intent and purpose of the perpetrator in distributing the said information, as well as vested interests that may be involved in the content distribution. Therefore, understanding the context may require expert opinions. More often than not, these opinions usually come from linguists, psychologists and communication experts.

Article 311 of the Criminal Code explains that slander or defamation is done by accusing someone of doing something. These accusations can either be factual or fabricated intended to gain traction or public attention. If the accuser cannot prove the validity and accuracy of their accusation, then he/she is considered to have committed slander or defamation.

Therefore, in creating content, it is important to avoid talking about or mentioning these things:

Content that showcases acts that violate public decency;
Content in relation to gambling;
Content that includes malice, insults and/or direct acts of defamation;
Content that showcases extortion and/or include threats;
Fake and misleading news that harms consumers in the form of electronic transactions; and
Information intended to spark hate/hostility towards individuals/groups of people based on differences found in ethnicity, religion, race and intergroups.

In fact, expressing a sense of dissatisfaction with certain goods or services on social media is a consumer right on its own, and protected by law. Article 4 letter d of the Consumer Protection Law (KUHP) states that consumers have the right to have their complaints heard regarding the goods/services they used. However, it is important to submit the complaint in a fair manner, delivered using honest and straightforward language.

Lastly, legal steps should be seen as the last resort, and should only be used if administrative or civil sanctions are not sufficient to satisfy the parties affected (ultimum remedium).