This article is an English translation of Bisakah Konsumen VCS Dipidana? which was written by Arasy Pradana A. Azis, S.H., M.H. and was published on Friday, 27 January 2023.
This article below is the third update of the article entitled Can Video Call Sex Consumers Be Convicted? (Dapatkah Konsumen Video Call Sex Dipidana?) which was first published on 13 May 2020, was first updated on 29 July 2021, and was secondly updated on 13 December 2021.
This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.
All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.
Previously you need to understand, what does VCS mean? VCS stands for video call sex. Your concern over the possibility of being involved in criminal prosecution due to the use of VCS services should be reviewed in accordance with the relevant laws and regulations.
Prohibitions under the Law on Pornography
Now that we know the acronym for VCS, let's learn an overview of it according to the Law on Pornography or Law Number 44 of 2008 on Pornography (“Law 44/2008”).
Article 4 Section (1) Law 44/2008 clarifies the prohibition for any person to produce, create, reproduce, duplicate, disseminate, broadcast, import, export, offer, trade, lease, or provide pornography that explicitly contains:
- copulation, including deviant copulation;
- sexual violence;
- nudity or display of nudity;
- genitals; or
- child pornography.
Pornography means pictures, sketches, illustrations, photographs, writings, sounds, moving pictures, animations, cartoons, conversations, gestures, or other forms of messages through various forms of communication media and/or public performances, that contain obscenity or sexual exploitation that violates the norms of decency in the society.
If violated, the perpetrators may be sentenced to imprisonment for a minimum of six months and a maximum of 12 years and/or a minimum fine of IDR 250 million and a maximum of IDR 6 billion.
However, this article does not apply if it is "made for himself and his own interest".
In addition, individuals are also prohibited from providing pornographic services which:
- present explicitly nudity or suggestive displays of nudity;
- explicitly present genitals;
- exploit or exhibit sexual activity; or
- offer or advertise, either directly or indirectly, sexual services.
If done so, the perpetrators may be sentenced to imprisonment for a minimum of six months and a maximum of six years and/or a minimum fine of IDR 250 million and a maximum of IDR 3 billion.
Can VCS be Imprisoned?
In relation to whether or not you as a consumer of VCS are convicted under the Law on Pornography, we refer to the article entitled Spreading Pornographic Videos and Pictures to the Internet, Here Are the Sanctions.
In the event that a man and a woman give each other their consent for the recording of their sex videos, and if the photos and videos are only used for their own interests as referred to in the exception described in the Elucidation of Article 4 Section (1) Law 44/2008, then the act of making and storing in question is not included in the scope of “making” as referred to in Article 4 Law 44/2008.
Therefore, in our opinion, VCS consumers cannot be criminally convicted according to Article 4 Section (1) Law 44/2008. However, VCS service providers may be charged with Article 4 Section (2) Law 44/2008 for the provision of services containing pornographic elements.
VCS Consumers on the Point of View of Electronic Information and Transactions Law
Secondly, this case can be reviewed under the Electronic Information and Transactions Law or Law 11/2008 as amended by Law 19/2016.
Article 45 Section (1) Law 19/2016 stipulates that:
Any Person who intentionally and illegally or unlawfully distributes and/or transmits and/or made accessible Electronic Information and/or Electronic Documents which contain content that violates decency as referred to in Article 27 paragraph (1) will be subject to imprisonment for a maximum of 6 (six) years and/or a maximum fine of IDR1,000,000,000.00 (one billion rupiahs).
"Transmitting" is the sending of electronic information and/or electronic documents which are addressed to another party through an electronic system.
In order to understand the meaning of the said article, according to the Appendix of Joint Decree of the Minister 229, 154, Kb/12/Vi/2021, the content which violates decency is transmitted, distributed, or disseminated by means of single delivery to individuals or to many people (distributed, uploaded, broadcasted, or posted).
Based on the abovementioned provisions, it can be concluded that if reviewed according to Law 11/2008, the transmission of decency-violating content which is addressed to one person, already fulfills the elements of Article 27 Section (1) Law 11/2008.
VCS as a Two-Way Communication
In addition, it should be noted that VCS is a two-way communication video call service. Virpi Oksman in the article Mobile Video: Between Personal, Community and Mass Media in the book After the Mobile Phone?: Social Changes and the Development of Mobile Communication (p. 106) elaborates that:
Video call is more engaging activity than voice call, partly because it does not allow so much for simultaneous ‘parallel activities’ … The tester estimated video calls to be perfect product also for relationship communication.
This indicates that two-way communication has taken place under VCS between you and the VCS service provider. Therefore, it can be assumed that the transmission of VCS services involves both parties, both the VCS service provider and the VCS service provider as the recipient.
We took the case of District Court Decision of Barru Number 74/Pid.Sus/2020/PN Bar, as an example, in which the defendant asked a girl to perform VCS while simultaneously taking a video of it (p. 24). Thus, in our opinion, users of VCS services have the potential to be convicted under the Electronic Information and Transactions Law and its amendments.
Furthermore, in response to your question regarding reporting the crime, we would like to inform you that even if you have not used the VCS service yet (because you were defrauded by the service provider), you may still be convicted for preparation to commit a crime. The preparation to commit a crime is regulated under the previous Criminal Code, which is still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force in 2026. These are the provisions:
Article 53 Criminal Code
Article 17 Law 1/2023
Article 53 Section (1) Criminal Code:
Attempt to commit a crime is punishable if the intention of the offender has revealed itself by a commencement of the performance and the performance is not completed only because of circumstances independent of his will.
Article 17 Section (1) Law 1/2023:
An attempt to commit a Crime shall occur if the intention of the offender is evident from the start of the execution of the intended Crime, but its execution is not completed, does not achieve the result, or does not cause the prohibited result, not solely because of his/her own will.
Article 53 Section (2) Criminal Code:
The maximum of the basic punishments imposed on the crime in case of attempt shall be mitigated by one third.
Article 17 Section (3) Law 1/2023:
The criminal sentence for an attempted Crime shall be a maximum of 2/3 (two-thirds) of the maximum principal sentence for the relevant Crime.
For example, if you intend to use VCS services, and you have transferred a certain amount of money in order to pay for said services, but it turns out that the service provider does not contact you or you are unable to contact them at the appointed time for VCS services.
Therefore, according to those actions, you already have the intention to commit an act that is subject to criminal sanctions, and you have also started the act by transferring money and other preparatory actions in order to use VCS services, however, the act was not completed, because it was hindered by a VCS service provider who reneged or lie.
Enrich your legal research with the latest bilingual legal analysis, as well as the collection of regulatory translations integrated into Hukumonline Pro, click here to learn more.
These are the answers we can provide, we hope you will find them useful.
- Indonesian Criminal Code;
- Law Number 11 of 2008 on Electronic Information and Transactions as amended by Law Number 19 of 2016 on The Amendment of Law Number 11 of 2008 on Electronic Information and Transactions;
- Law Number 44 of 2008 on Pornography;
- Law Number 1 of 2023 on the Criminal Code;
- Joint Decree of The Minister of Communication and Informatics of The Republic of Indonesia, The Attorney General Of The Republic Of Indonesia, and The Chief of The Indonesian National Police Number 229, 154, Kb/2/Vi/2021 of 2021 on Guidelines for The Implementation of Certain Articles in Law Number 11 of 2008 on Electronic Information and Transactions as Amended by Law Number 19 of 2016 on The Amendment to Law Number 11 of 2008 on Electronic Information and Transactions.
District Court Decision of Barru Number 74/Pid.Sus/2020/PN Bar.
Virpi Oksman. Mobile Video: Between Personal, Community and Mass Mediadalam buku Maren Hartmann (Eds.). After the Mobile Phone?: Social Changes and the Development of Mobile Communication. Berlin: Frank & Timme GmbH, 2008.
 Article 1 Number 1 Law Number 44 of 2008 on Pornography (“Law 44/2008”).
 Article 29 Law 44/2008.
 Elucidation of Article 4 Section (1) Law 44/2008.
 Article 4 Section (2) Law 44/2008.
 Article 30 Law 44/2008.
 Elucidation of Article 27 Section (1) Law Number 19 of 2016 on The Amendment of Law Number 11 of 2008 on Electronic Information and Transactions (“Law 19/2016”).