Secretly Taking Photographs of People, this is the Law

PERTANYAAN

There was a friend of ours at work and without knowing it our friend was secretly photographed using a cell phone where the picture looked as if he was looking down like he was sleeping. Then the picture was printed and used as proof that our friend was sleeping. What I'm asking is how valid the evidence is and whether this is a violation of the Electronic Information and Transactions Law.

INTISARI JAWABAN

The act of taking photos of other people secretly, but not for the purpose of advertisements and commercials, as well as not being distributed and/or transmitted electronically, basically does neither violate Law 28/2014 or Copyright Law nor Law 11/2008 or Electronic Information and Transactions Law.

However, if the purpose of the secret photo-taking is to accuse your friend of sleeping while working, even though he/she is actually working instead of sleeping, then the perpetrator may be charged with a criminal offense. What are the provisions?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hukumnya Jika Diam-Diam Memfoto Orang Lain which was written by Dian Dwi Jayanti, S.H. and was published on Monday, 9 January 2023.

This article below is a second update of the article entitled Secretly Photographing People, this is the Law (Hukumnya Jika Diam-Diam Memfoto Orang Lain) which was written by  Tri Jata Ayu Pramesti and was first published on Friday, 7 February 2014, and was first updated on Thursday, 16 July 2020.

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.

Photos of People According to Electronic Information and Transactions Law

A photo of your friend which is taken through a mobile phone camera can be considered as electronic information and/or electronic document if it is still in electronic form or in other words if it has not been printed.

Article 1 Number 1 Law 19/2016 explains that 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.

Meanwhile, an electronic document, according to Article 1 Section (4) Law 19/2016, is any electronic information that is created, forwarded, sent, received, or stored in analog, digital, electromagnetic, optical, or similar, which may be viewed, displayed and/or heard through a computer or electronic system, including but not limited to writings, sounds, pictures, maps, designs, photographs or similar, letters, signs, numbers, access codes, symbols or perforations that have meaning or can be understood by people who are able to understand them.

Photos of People According to Copyright Law

Furthermore, from the point of view of Law 28/2014, your friend's photo is categorized as a portrait, i.e. a photographic work with human objects.[1]

The person who takes a picture of your friend while working may be referred to as the creator, i.e. a person or persons who individually or jointly produce unique and personal work.[2] As the creator, the photo taker has a copyright which grants a number of exclusive rights, among others, to carry out reproductions, and announcements including changes to their own images and prohibiting others from carrying out said actions without their permission.

However, there are limitations to the use of copyrights for portraits. This means that the person taking the portrait must first obtain approval from the person being photographed because Article 12 Section (1) Law 28/2014 has regulated that any person is prohibited from carrying out commercial use, reproduction, announcements, distribution, and/or communication of the portraits they make for the purpose of advertisements or commercials without the written consent of the person being photographed or their heirs. If violated, the perpetrator may be charged with a maximum fine of IDR 500 million.[3]

However, according to the chronology, we assume that the portraits are taken not for advertisement or commercial purposes, but to be reported to the superiors/boss "as if" they were sleeping during working hours so that it is not considered as the above actions.

Photographs for Evidence Purposes

In criminal law, printed photographs are valid as evidence in order to enforce the law at the request of the police, prosecutors, and/or other law enforcement institutions, as regulated in Article 5 Section (1) and (2) Law 11/2008 jo. Constitutional Court Decision No. 20/PUU-XIV/2016.

From this article, it can be concluded that for the purpose of evidence of crimes, photographs as electronic information and/or printed electronic documents are legal evidences that are acknowledged as valid.

If the printed image/portrait of your friend is used for the purpose of evidence in criminal law, then the photo is legally acknowledged. Then what if the photo is not used for the purpose of evidence in criminal law?

Crime of Humiliation

According to your chronology, we assume that the purpose of using the printed photo of your friend as evidence, is to prove to the boss the attitude of employees who "seem" to be sleeping during working hours. This means that printed photo is not used for the purpose of evidence of crimes.

Apart from criminal law purposes, this means that a photo of your friend can be used as evidence to state the truth that your friend "sleeps" in the office during working hours and show it to your boss. However, there is something that needs to be examined here, namely the truth about whether your friend sleeps during working hours.

If it turns out that your friend is indeed working and is not sleeping, then the photo taker or the perpetrator who gives the printed photo to the boss may be subject to criminal sanctions 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.[4] The provisions are:

Article 310 Criminal Code	Article 433 Law 1/2023
Any person who intentionally attacks someone's honor or reputation by accusing him of something, with clear intentions so that it becomes known by the public, is threatened with defamation by a maximum imprisonment of 9 months or a maximum fine of Rp. 4.5 million.[5]	Any Person who verbally assaults someone’s honor or reputation by accusing something, with the intention that it is known to the public, shall be sentenced due to slander, with imprisonment for a maximum of 9 (nine) months or a maximum criminal fine of category II that is IDR 10 million.[6]
If this is done with writings or pictures that are broadcasted, displayed, or attached in public places, then he will be threatened with libel with a maximum imprisonment of 1 year and 4 months or a maximum fine of Rp. 4.5 million.[7]	If the act as referred to in paragraph (1) is carried out with writings or pictures that are broadcasted, displayed, or attached in public places, shall be sentenced due to libel, with imprisonment for a maximum of 1 (one) year and 6 (six) months or a maximum criminal fine of category III that is IDR 50 million.[8]
It does not constitute defamation or libel if the act is clearly committed in the public interest or due to compulsion in self-defense.	The acts as referred to in paragraph (1) and paragraph (2) shall not be sentenced if it is conducted in the public interest or out of the necessity of self-defense.

 

Answering your question, if the act of giving a printed photo of your friend who is accused of sleeping while he is working, with the intention of being known by many people and the act is a shameful act, the perpetrator can be punished under Article 310 Section (2) Criminal Code or Article 433 Law 1/2023.

Thus, this action cannot be subject to criminal penalties under Law 11/2008 because it was not carried out by distributing and/or transmitting and/or making accessible electronic information and/or electronic documents containing insults and/or defamation, as referred to in Article 27 Section (3) Law 11/2008. The printed photo is no longer in the form of electronic information and/or electronic documents.

Also read: Actions that are Considered as Defamation

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

Legal Basis:

1. Indonesian Criminal Code;
2. Law Number 28 of 2014 on Copyright;
3. 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;
4. Law Number 1 of 2023 on the Criminal Code;
5. Regulation of Supreme Court of the Republic of Indonesia Number 2 of 2012 on the Adjustment to the Limitation of Minor Crimes (Tipiring) and Fine under the Criminal Code.

Court Decision:

Constitutional Court Decision No. 20/PUU-XIV/2016.

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[1] Article 1 Section (10) Law Number 28 of 2014 on Copyright (“Law 28/2014”).

[2] Article 1 Section (2) Law 28/2014.

[3] Article 115 Law 28/2014.

[4] Article 624 Law Number 1 of 2023 on the Criminal Code (“Law 1/2023”).

[5] Article 3 Regulation of Supreme Court of the Republic of Indonesia Number 2 of 2012 on the Adjustment to the Limitation of Minor Crimes (Tipiring) and Fine under the Criminal Code (“Regulation of Supreme Court 2/2012”).

[6] Article 79 Section (1) letter b Law 1/2023.

[7] Article 3 Regulation of Supreme Court 2/2012.

[8] Article 79 Section (1) letter c Law 1/2023.