Criminal Penalty for Perpetrator of Harassment on Social Media - Klinik Hukumonline
Criminal Penalty for Perpetrator of Harassment on Social Media
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Criminal Penalty for Perpetrator of Harassment on Social Media

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Criminal Penalty for Perpetrator of Harassment on Social Media

Question

My partner has been sexually harassed on social media. In the beginning, there was a Facebook status that included a photo of my social media profile which contained my partner and me. Then, there was one of the comments in the comment section of the post which basically said that this person wanted to rape my partner. What are the laws relating to harassment on social media?

Key Answer

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Parties who make indecent comments on social media in the case you are referring to may be subject to criminal sanctions for sexual violence under Law Number 12 of 2022 on Sexual Violence Criminal Act (“Law 12/2022”). Moreover, since sexual harassment was carried out through social media, it could also be charged under Law Number 11 of 2008 on Electronic Information and Transactions (“Law 11/2008”) and its amendments.

So, what are the sanctions for non-physical sexual harassment perpetrators that are carried out on social media?

Please read the review below for a further explanation.

Full Review

This article is an English translation of Jerat Hukum bagi Pelaku Pelecehan di Media Sosial which was written by Nafiatul Munawaroh, S.H., M.H. and was published on Friday, 21 October 2022.

This article below is an update of the article entitled Criminal Penalty for Harassing Comments on Social Media (Jerat Pidana Jika Berkomentar Melecehkan di Media Sosial) which was first written by Sigar Aji Poerana, S.H. and was first published on Tuesday, 15 October 2019. 

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.

Sexual Harassment on Social Media

Sexual harassment on social media is nothing new. The National Commission on Violence Against Women (Komisi Nasional Anti Kekerasan terhadap Perempuan/ “Komnas Perempuan”) explains that sexual harassment is one of fifteen forms of sexual violence.[1]

Furthermore, Komnas Perempuan defines sexual harassment as any physical or non-physical sexual acts which target the sexual organs or sexuality of the victim. This includes whistling, flirting, sexually contained remarks/sayings, the displaying of pornographic materials and sexual desires, poking or touching of any part of the body, sexual movements or gestures that cause discomfort, irritability, humiliation, and possibly cause health and safety problems.[2]

In an article entitled Social Media as a New Space for Sexual Harassment for Teens or Media Sosial sebagai Ruang Baru dalam Tindakan Pelecehan Seksual Remaja (p. 43), Rosyidah and Nurdin explain that social media has now become a platform for expressing sexual desires.

Furthermore, Rosyidah and Nurdin explain that this harassment in social media is not much different from whistling, words, or touching in the real world. These forms of harassment may take the form of unpleasant seductions or temptations. The presentation could be carried out through chats, direct messages, and comments.

Regarding the sexual harassment on social media that your partner experienced, we can inform you that any parties who make obscene comments on social media may be subject to criminal sanctions for sexual violence.

Criminal Penalties for Sexual Harassment

The act of commenting on other people's posts on social media that contain sexual harassment is categorized as sexual violence.[3] These acts can be criminalized under Article 5 Law Number 12 of 2022 on Sexual Violence Criminal Act (“Law 12/2022”) on non-physical sexual harassment, namely:

Any Person who performs non-physical sexual acts aimed at the body, sexual desire, and/or reproductive organs with the intention of degrading the dignity of a person based on their sexuality and/or decency, shall be convicted of non-physical sexual harassment, with a maximum imprisonment of 9 (nine) month and/or a maximum fine of IDR 10,000,000.00 (ten million rupiahs).

In addition, non-physically sexual acts are statements, gestures, or activities which lead to sexuality that are intended to degrade or embarrass the victim.[4]

Moreover, since the remarks/sayings were carried out through the internet, according to Law 12/2022,  this also includes electronic-based sexual violence. Any person who illegally transmits electronic information and/or electronic documents that contain sexual content against the will of the recipient, which is addressed to sexual desire will be subject to imprisonment for a maximum of 4 (four) years and/or a maximum fine of IDR 200 million.[5]

Therefore, indecent comment on social media which address the intention to rape your partner is categorized as non-physical and electronic-based sexual violence.

Regulation of Social Media Content

In addition to the provisions of Law 12/2022, the comment you are referring to is also prohibited under  Law Number 11 of 2008 on Electronic Information and Transactions (“Law 11/2008”) and its amendments.

Article 27 Section (1) Law 11/2008 jo. Article 1 Number 1 Law Number 19 of 2016 on The Amendment of Law Number 11 of 2008 on Electronic Information and Transactions (“Law 19/2016”) stipulates that:

Article 27 Section (1) Law 11/2008

Any person who intentionally and illegally distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Document which has content that violates decency.

Article 1 Number 1 Law 19/2016

Electronic information is one or a set of electronic data, including but not limited to writings, sounds, pictures, maps, designs, photographs, electronic data interchange (EDI), electronic mail, telegram, telex, telecopy or similar, letters, signs, numbers, Access Codes, symbols or processed perforations that have meaning or can be understood by people who are able to understand them.

The meaning of "makes/making accessible" are all actions other than distributing and transmitting through electronic systems which cause electronic information and/or electronic documents to be known to other parties or to the public.[6]

Violation of Article 27 Section (1) Law 11/2008 shall be subject to imprisonment for a maximum of 6 years and/or a maximum fine of IDR 1 billion.[7]

Based on these regulations, according to our opinion, harassment on social media which takes the form of indecent comments can be categorized as electronic information content which contains a violation of decency. Such harassment on social media also fulfills the element of being accessible to others, as it is listed in the comment section of social media.

Therefore, harassing comments on social media may be criminally charged under Law 12/2022. Moreover, since the comment was carried out on social media, which is the domain of Law 11/2008, the perpetrator may also be charged under Law 11/2008.

Also read: Sexual Harassment by Drivers, Are App Providers Responsible?

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

  1. 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;
  2. Law Number 12 of 2022 on Sexual Violence Criminal Act.

Reference:

  1. Rosyidah, Feryna N. & Nurdin, M. F, Perilaku Menyimpang: Media Sosial sebagai Ruang Baru dalam Tindakan Pelecehan Seksual Remaja, SOSIOGLOBAL: Jurnal Pemikiran dan Penelitian Sosiologi, Vol. 2 No. 2, June 2018;
  2. The National Commission on Violence Against Women (Komisi Nasional Anti Kekerasan terhadap Perempuan/ “Komnas Perempuan”), Instrumen Modul & Referensi Pemantauan, 15 Bentuk Kekerasan Seksual: Sebuah Pengenalan, accesed on Friday, 21 October 2022, at 17.45 West Indonesia Time (zone).

[1] The National Commission on Violence Against Women (Komisi Nasional Anti Kekerasan terhadap Perempuan/ “Komnas Perempuan”), Instrumen Modul & Referensi Pemantauan, 15 Bentuk Kekerasan Seksual: Sebuah Pengenalan, p. 4.

[2] Komnas Perempuan, Instrumen Modul & Referensi Pemantauan, 15 Bentuk Kekerasan Seksual: Sebuah Pengenalan, p. 6.

[3] Article 4 Section (1) Letter a Law Number 12 of 2022 on Sexual Violence Criminal Act (“Law 12/2022”).

[4] Article 5 Law 12/2022.

[5] Article 14 Section (1) letter b Law 12/2022.

[7] Article 45 Section (1) Law 19/2016.

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