This report is based on an International Seminar on Defamation "Building a Regional Advocacy Platform" held in Yogyakarta, Indonesia, 9 - 10 May 2008

conducted by the Alliance of Independent Journalists and ARTICLE 19, supported by USAID's Democratic Reform Support Program

The Alliance of Independent Journalists, AJI (Aliansi Jurnalis Independen), is an organization representing professional journalists in Indonesia. One thousand and thirty-seven journalists are currently members of AJI. It is an organization of strict goals, principles and codes with a regular congress, held every three years, to choose the governing board. "AJI Indonesia" is the name of the national organization; "City AJIs" represent our members in 26 cities across Indonesia. AJI is concerned with issues of press freedom and expression in Indonesia. AJI is a member of the International Federation of Journalists (IFJ), an international journalists' organization based in Brussels, Belgium; the International Freedom of Expression Exchange (IFEX), a Canada-based advocacy organization; the South East Asian Press Alliance, SEAPA, a Bangkok-based advocacy organization; and FORUM ASIA, a Bangkok-based human rights network. AJI Indonesia has proactively campaigned for the elimination of press criminalization on many occasions and over many years. As recorded by AJI, there have been 59 defamation cases filed against the media in various cities in Indonesia from 2003 until September 2008. Of these cases, only twelve - or 20 percent - applied the Press Law as legal reference. The Alliance of Independent Journalists Jl. Kembang Raya No.6, Kwitang - Senen Jakarta Pusat 10420 -Indonesia Tel: +62-21-315 1214 Fax: +62-21-315 1261 Email. sekretariat@ajiindonesia.org Web: http://ajiindonesia.org ARTICLE 19 is an independent human rights organisation that works around the world to protect and promote the right to freedom of expression. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees free speech. ARTICLE 19's mission is to work to promote, protect and develop freedom of expression, including access to information and the means of communication. It does this through advocacy, standard-setting, campaigns, research, litigation and the building of partnerships. It engages global, regional and State institutions, as well as the private sector, in critical dialogue and holds them accountable for the implementation of international standards. ARTICLE 19, Global Campaign for Free Expression 6-8 Amwell Street, London United Kingdom EC1R 1UQ E-mail: info@article19.org Website: http://www.article19.org Supported by:

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Table of Contents
I. II. III.
Defamation in Southeast Asia

The Problem of Defamation in Southeast Asia: Introduction ................. 7 Defamation in East Timor ............................................................................ 11 Defamation in the Philippines .................................................................... 17 Defamation in Malaysia ............................................................................... 27 Defamation in Thailand ............................................................................... 35 Defamation in Indonesia .............................................................................. 43 Defeated at the Constitutional Court ......................................................... 51

IV. V. VI.

Contributors: Toby Mendel Fernanda Borges Joel Butuyan Gayathry Venkiteswaran Sinfah Tunsarawuth Willy Pramudya Eko Maryadi Leo Batubara Editor: Andrew Thornley Cover and book design: J!DSG www.jabrik.com Publisher: The Alliance of Independent Journalists Jl. Kembang Raya No.6, Kwitang - Senen Jakarta Pusat 10420 -Indonesia Tel: +62-21-315 1214 Fax: +62-21-315 1261 Email. sekretariat@ajiindonesia.org Web: http://ajiindonesia.org

VII. Recommendations for Action ...................................................................... 55

Copyright@2008 AJI Indonesia. All rights reserved.

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I. The Problem of Defamation in Southeast Asia: Introduction

Journalists and media workers in Southeast Asia, as in other parts of the world, face a number of constraints in their work. These range from business pressures - competition, turning a profit, getting qualified staff - to serious threats, such as harassment and even killings, attempts at government control and an unduly restrictive legal environment. The particular constraints vary in intensity from country to country. In the Philippines, for example, numerous journalists have been killed in recent years for their reporting. In Burma, censorship and direct government control are the main threats. In all of the countries of Southeast Asia, however, defamation law poses a very serious threat to the ability of the media to report in the public interest and, in particular, to expose wrongdoing and abuse of power. Defamation remains a criminal offence in every country in Southeast Asia and, in most countries, criminal defamation suits are common. According to research by ARTICLE 19, imprisonment for defamation is common across the region1. An exception is Cambodia, which abolished the possibility of imprisonment for defamation in 2006. In a setback, the Indonesian Constitutional Court recently refused to hold that imprisonment for defamation was inconsistent with constitutional guarantees of the right to freedom of expression. The chilling effect of criminal defamation laws, and particularly the possibility of imprisonment, is both insidious and well-documented. Another key problem with defamation laws in the region, as well as internationally, is the highly excessive compensation that courts may award for those found to have breached the rules. Perhaps the most extreme example of this from the region was the approximately $106 million Time Magazine was ordered by the Indonesian Supreme Court to pay former President Suharto in September 2007. Time's wrong had been to allege in a May 1999 cover story

1 See our defamation mapping at: http://www.article19.org/advocacy/defamationmap/map/?dataSet=imprisonment

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that Suharto had amassed $15 billion during his 32-year rule. Excessive damage awards are common throughout the region. Defamation law has been relied upon regularly by politicians from the leading People's Action Party in Singapore to bankrupt opposition politicians, leading to them being barred from running for office. Defamation cases are also commonly used as a political tool in Malaysia. Huge damage claims were common in Thailand until recently, with many cases being brought by politicians or their proxies. A leading example was the case by former Prime Minister Thaksin's Shin Corp against an NGO activist, Supinya Klangnarong, for nearly $40 million in damages. The civil case fell apart after Supinya was acquitted on the criminal charges. The impact of recent changes to the press law, whereby only the author, and not the media outlet, may be sued in defamation, is not yet clear. In early 2008, Tesco Lotus, the Thai branch of the international supermarket chain, launched a series of defamation cases claiming multi-million dollar damage awards, some for statements falling under the old regime and some under the new press law system. A third problem with defamation laws in the region is that they fail to strike an appropriate balance between the need to protect reputations and the right to freedom of expression (and the interest of the public and democracy in a free flow of information in society). In many countries in the region, public bodies can still sue for defamation even though this represents an abuse of public funds since, properly speaking, they do not have a reputation of their own to defend. The Indonesian Constitutional Court recently rejected a challenge to the criminal rules allowing public bodies to bring defamation suits. A related problem is that the laws of many countries provide special protection for public officials. In a landmark ruling in December 2006, the Indonesian Constitutional Court held that criminal law provisions that provided enhanced protection to the President and Vice President were unconstitutional. This was the first decision of its kind in the region and it deserves to be studied and followed. Many defamation laws in the region also fail to provide for appropriate defences to a charge of defamation. International courts have held that everyone should be given an opportunity to prove the truth of their allegations as a defence to charges of defamation. In those Southeast Asian countries which have common law legal traditions, like Malaysia and Singapore, truth is recognised as a defence. In other countries, however, this is not always the case. To avoid conviction for criminal defamation in the Philippines requires proof not only of truth, but also of good faith, while the rules on proof of truth in crimi-

nal defamation cases are similarly constrained in Indonesia and Thailand. International courts, along with many national courts, have also recognised the need for a defence of good faith or reasonableness whereby defendants who have acted reasonably, or in good faith or without malice, should not be held liable for statements on matters of public interest. The rationale behind this is that open public debate on matters of public interest would be seriously undermined if authors risked defamation liability for every factual mistake. A defence along these lines has been recognised in the Philippines, as well as in a number of other Asian countries outside of Southeast Asia. Thai law recognises a broad defence for statements made in 'good faith' and this was successfully relied upon by Supinya as a defence in the case brought by Shin Corp noted above. The situation in Southeast Asia regarding defamation thus presents a mixed picture. As the examples noted above demonstrate, there remain very serious problems with defamation laws in the region, and these laws are regularly abused by the powerful - politicians but also businesspeople - to limit legitimate criticism of their actions. On the other hand, there are positive precedents on many issues throughout the region, and some recent indications that courts and other decision-makers are prepared to engage in reform. Such efforts at reform should be supported in the hope that they spread throughout the region.

Toby Mendel Senior Director for Law ARTICLE 19 September 2008

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II. Defamation in East Timor2

Media freedom is the real test that reflects standards of fair play, justice and integrity in the country. It is for this reason that East Timor, a reasonably young democracy, seized the moment very early on to promote and protect human rights by ensuring that the Republic's Constitution consecrated these principles and parliamentarians took the positive measure of ratifying the Universal Declaration of Human Rights. These two critical legal instruments guarantee to a certain extent that citizen's human rights are guaranteed and protected. For the people of East Timor it is a good beginning. A solid foundation is in place to build upon and help create the necessary value system, culture and environment so that new legislation gives a broad right to freedom of expression without restrictions imposed through defamation laws. Despite these positive aspects, East Timor continues to confront many issues and challenges ahead whilst trying to put into practice freedom of expression. It is proving to be a difficult task when one considers that the country is still in the process of building democratic institutions that are accountable to the people, political leaders are still struggling to define their role and function and increase their power, human resources capacity in state and media are weak, and last but not least the limited legislative framework in existence to support and protect these basic universal human rights. To exacerbate the problems further, the second constitutional government introduced a penal code on 6 December 2005 which criminalizes defamation on the grounds of respecting the rights and reputations of others. In the absence of media laws that ensured freedom of the press and other media, alarm bells rang even louder when civil defamation action (Alkatiri v Lasama) began to appear even before the President of the Republic promulgated the penal code. Article 19 of Universal Declaration of Human Rights and Article 19 of the

2 Based on paper by Fernanda Borges, Member National Parliament, and Chair Parliamentary Committee A, President of Partido Unidade Nacional (PUN) East Timor. Email: pun69tibar@gmail.com

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International Covenant on Civil and Political Rights (ICCPR) was at risk. This development would make it difficult for journalists to report on possible corruption, mismanagement or inefficiency and to ensure transparent and accountable government without risking criminal charges. Intense debate generated fast as journalists, international and local NGOs and the general public disagreed with the law and requested the President to veto the penal code. As negotiations were ongoing the government lost power, rendering the law null and void. The defamation case suffered a quick death after parties negotiated a private agreement out of court. Thus, since independence there has not been a court ruling on defamation to cite. Notwithstanding, the experience left stakeholders with unanswered questions about media freedom and defamation laws that need to be addressed in the new media law. The debate generated a positive response to journalists to better organize themselves into associations namely, ICLJ and TLMDC, to help draft new media laws, and to provide one consistent voice on media issues and foster solidarity amongst journalists. To review media laws, the government has signed an agreement with the United Nations Development Programme to provide technical assistance for the drafting of a media law and provide post-enactment training. It is intended that the project will produce a forward looking media law based on consultations with civil society, and advice from international media law based on advice from international media law experts familiar with the situation in East Timor and international best practices. The arrangement will also provide an international media law advisor who will be responsible for providing Committee A of Parliament with advisory assistance on drafting a media law and on developing a formal process permitting stakeholders to make submissions to Committee A, hold public hearings in districts, draft a white paper on the role of media law and assist the Commission on the Media Law to draft a series of agreed recommendations and agreed principles for submission to Committee A. To ensure that broad consensus is reached by all stakeholders, the Commission for Media Law is comprised of 11 members including representatives of journalists' associations, public, commercial, and community media, and Timorese lawyers. The Commission monitors all legislation that impacts the media, and is supporting the development of the rights of freedom of expression and information. This is all work in progress which must keep in sight the new Penal Code

Authorization Law recently presented to the National Parliament by the government. The wording in the Authorization Law is the same as the previous government's in 2005. This is an interesting development as the current Prime Minister (who is also the former President of the Republic) disagreed with the defamation clause in the old penal code. It is therefore unclear whether the government wishes to criminalize defamation through the penal code or include it in the civil code so that fines can be imposed. As the penal code will be prepared solely by the government and presented to the President for promulgation the Commission that monitors media legislation needs to be aware of this development and engage in the debate. The National Parliament needs to consider carefully the full implications of approving this Penal Code Authorization Law, and the government needs to consider the consequences of making defamation a crime in East Timor. A balance needs to be found between scaring media off and asking for responsibility from media or journalists. More serious consideration needs to be given by the government to ensure that journalists have a well developed professional code of ethics and conduct to guide them in their work and to ensure that sufficient bilateral training assistance is provided to journalists to improve their journalistic skills and discipline. The defamation debate may now intensify again as we focus on a few issues and questions to ensure that a well informed decision is taken by the government and National Parliament in the interests of human rights, democracy and freedom of expression. The questions are: 1. Should the penal code criminalize defamation or should defamation be included in the civil code so that fines can be imposed by the court? What are the arguments and consequences for doing so in each case? What is the AMP government's intention? Criminalize defamation or impose a series of fines through the civil code? What comparative studies has the government conducted to warrant this decision? Does a criminal or civil restriction meet the principles and standards imposed by the Constitution and international conventions that East Timor has signed? Can journalists and media owners afford to pay hefty fines? What are the consequences if they cannot?

2. 3. 4.

5.

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A consequence of the real and imminent threat from politicians to sue on the grounds of defamation has made journalists fearful of writing stories that might lead to legal action in court and the tendency for state media broadcasters to be playing the role of public relations reporters for the government without much critique on the positive and negative aspects. This is also to the detriment of democracy as a pre-requisite is the free flow of ideas and information. Two recent cases (Jose Belo and Angelita Pires) arising from the 2006 crisis and 11 February 2008 incident where our President was critically wounded provides food for thought to legislators on the need to focus on the principles of freedom of expression and international standards so as to protect the rights of individuals as well as protect public interest. First, the case of Jose Belo, a journalist involved in filming interviews with the rebel leaders Alfredo Reinado and Salsinha. Belo claims that UN investigators are "intimidating him" so that he can "disclose information" on his sources. Belo argues that confidentiality of media sources is the cornerstone of good journalism and integrity of the media. The question that the UN must answer is on what grounds are they restricting Belo's right to freedom of expression and opinion? If the restriction is on the grounds of national security and public order under article 19 (3) of the ICCPR, can it withstand a review of the Human Rights Committee? The UN in carrying out their investigations need to ensure that they are not infringing on Belo's right to freedom of expression and the general interest in promoting freedoms on issues of public interest. The conclusion presented in the case of Mukong v Cameroon (1994) by the Human Rights Committee is a useful reference point. The second case concerns Angelita Pires, who has been detained by the courts for further investigation on the 11 February 2008 incident. Pires has expressed her great concern that the President of the Republic made comments to the media on her involvement in this incident, which is tantamount to trial by the media and defamation of her character. The answer to this case partly lies in civic education to state organs and journalists on the principle that an individual is innocent until proven guilty by a court of law, and of the separation of powers in a democratic system - in particular, the independence of the judicial sector. Recommendations for regional advocacy on safeguarding freedom of the media There is no Asian and Pacific regional convention on human rights.

We should promote this concept and request our governments and National Parliaments to step up their efforts to establishing some regional arrangements. We need the moral and political goodwill of politicians to support a regional convention on human rights focused on freedom of expression. The members of the Inter Parliamentary Group (IPU) connected to the Asia Pacific Regional Working Group could work together to propose a Resolution on this matter and present it at the IPU Assembly for approval by all member countries. If approved, the Resolution is binding and will help Parliamentarians in ASEAN countries to focus more clearly on reviewing media restrictive laws in their state. Revising media laws and amending them if necessary to bring them into conformity with article 19 of CCPR. Abolishing any laws that punish press offences with imprisonment except in cases involving racist or discriminatory comments or calls for violence. Ensure that any fines for offences such as libel, defamation and insults are not out of proportion with the harm suffered by the victims. Encouraging plurality and independence of newspapers. Ensuring that broadcasters are protected against political and commercial influence including through the appointment of an independent governing board and respect for editorial independence. Ensuring that an independent broadcasting licensing authority is set up. Establishing clear criteria for payment and withdrawal of government subsidies to the press, in order to avoid the use of subsidies for stifling criticism of authorities. Avoiding excessive concentration of media control. Promoting universal access to the Internet.

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III. Defamation in the Philippines3

Supreme Court Circular on Libel Penalty Libel in the Philippines is a criminal offense that carries a penalty of imprisonment of six months to four years or a fine of $5.00 to $143.00, or both fine and imprisonment. Since the courts are given the discretion of imposing either imprisonment or fine, the courts in the past invariably imposed the penalty of imprisonment instead of fine. Just recently, the Supreme Court issued a circular instructing all judges to give preference to the imposition of fine as penalty instead of imprisonment for those who will be convicted of libel. Explaining the rationale behind the circular, the Chief Justice said: "If you review the cases of libel, you will find out that a lot of times, the act is committed with honest intentions. Therefore, a member of the media who commits this kind of an act, to our mind, need not be penalized by imprisonment." The Chief Justice further said that the payment of a fine "would already satisfy the intent of the law to punish the culprit." The Chief Justice, however, clarified that despite the issuance of the circular, libel remains a crime unless Congress enacts a law decriminalizing libel. [SC Administrative Circular No. 08-2008 issued on January 25, 2008]

Supreme Court Imposes Fine Instead of Imprisonment in a Libel Conviction By way of implementation of the above-mentioned circular, the Supreme Court (SC) recently upheld the libel conviction of the publisher of Gossip Tabloid, but imposed a penalty of fine of $143.00 instead of imprisonment as imposed by the Court of Appeals. The SC also directed the publisher to pay the complainants P1,000,000.00 ($24,000.00) in civil damages. The case stemmed from a headline story of Gossip Tabloid stating that a

3 Based on paper by Joel Butuyan, Center Law, Philippines. Email: jbutuyan@roguebutuyan.com

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showbiz couple committed malversation against Filipino-Americans, that they were fugitives from the law in the United States, and that they engaged in irresponsible gambling in casinos. The publisher raised the defense that she had no specific knowledge of, and participation and approval in the publication of the article. The SC ruled that the publisher had full control over the publication of articles in the said tabloid. The SC also declared that the publisher's "criminal guilt should be affirmed, whether or not she had actual knowledge and participation, having furnished the means of carrying on the publication of the article purportedly by the members of the Gossip Reportorial Team, who were employees under her control and supervision." [Fermin v. People of the Philippines, SC GR No. 157643 (March 28, 2008)]

between five months and four years and is already serving his sentence in prison. In this case, our services at Center Law were engaged to file a motion with the court on behalf of Mr. Adonis for the reopening of his case so that a new Supreme Court circular instructing judge to prefer fines to imprisonment as a penalty in libel cases could be applied in his favor. A hearing on the motion has been set for May 22, 2008.

2. People of the Philippines v. Alex Adonis, Crime. Case No. 48719-01 (Regional Trial Court, Davao City) This is a second libel case arising from the same event involving the Congressman. This second case was filed by the alleged paramour of the congressman in the sex scandal. It has been pending for the last four years and it was only last year that Mr. Adonis was arraigned for libel. We at Center Law took up the case only recently. A pre-trial conference has been set for May 26, 2008.

Bills Pending in Congress There are eight bills pending in both houses of Congress that seek to amend the present libel laws of the Philippines. Some of the bills seek to abolish libel as a criminal offense. The other bills seek to retain libel as a criminal offense but remove imprisonment as a penalty and instead increase the amount of fine that will be payable by the guilty party. The discussions on whether to decriminalize libel have been sidelined by a new proposal from a retired Supreme Court Justice. The new proposal which is being considered by the Senate seeks to make a distinction between "political libel" and "private libel." The retired Justice has proposed to Congress that in the case of political libel involving public figures' acts in the performance of their official duties, the libel law could be amended so that the burden of proving malice would lie with the complainant, and not with the journalist. The Justice also proposes that the law should be retained in the case of private libel involving private persons where malice is presumed from any defamatory imputation.

3. Human Rights Committee Center Law has also filed its first ever Communication to the Human Rights Committee on behalf of Mr. Alex Adonis, arguing that the country's criminal libel statute violates Freedom of Expression under the International Covenant on Civil and Political Rights (ICCPR). The main issue in this case is whether or not criminal defamation laws in the Philippines are actually valid restrictions on the right to freedom of expression. It is submitted that they are not as they do not satisfy the standards laid down in the Covenant, which is that any restriction must be reasonable and necessary per Article 19(3). International jurisprudence holds that necessary measures imply proportionality. Imprisonment or even criminalization is not proportional, but too severe compared to the State's interest in preventing reputation harm, undeniably creating a chilling effect. Journalists with criminal records, no matter how nominal the punishment, suffer lost career opportunities and have several career options closed to them merely by the existence of a criminal record. It is submitted that criminalizing defamation as well as imposing the sanction of imprisonment are violations of the standards laid down in the Covenant. It is also submitted that there are other, less repressive means of protecting reputations without harming free speech. Fines and civil actions for damages act as sufficient deterrents to malicious unprotected and allegedly "criminal" speech.

Alex Adonis Cases 1. People of the Philippines v. Alex Adonis, Crime. Case No. 48679-680-2001 (Regional Trial Court, Davao City) A broadcast journalist, Mr. Adonis, was convicted of libel for news and commentary he made on a sex scandal that implicated a congressman (now Speaker of the House of Representatives). He was sentenced to a jail term of

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Other features of Philippine criminal defamation laws violate the Covenant. Two features are cited: First is that the burden of proof is not on the prosecution but on the accused. Every defamatory statement is presumed to be malicious. This is a violation of freedom of expression via a violation of fair trial guarantees. Second, truth is not a defense except in extremely limited cases. This is unreasonable since it gives reputations protections that those reputations do not deserve. It is submitted that proof of truth should be an absolute defense.

then can they, as accused in criminal cases, ventilate and justify the validity of their articles. In the course of our representation of the editors and staff of The Daily Tribune, a hard-hitting opposition newspaper, the chief editor, Ninez Cacho Olivares, vented her exasperation at having to repeatedly appear very early in the morning in the many defamation cases filed against her by the First Gentleman and other members of the present government. She inquired if there could be a remedy that can be resorted to in order to protect the media from these nuisance libel cases. According to her, the nuisance suits have resulted in actual damages in the form of bail bonds posted, legal fees, transportation expenses, and lost time which otherwise should have been spent in the practice of her profession. This is in addition to moral damages arising from sleepless nights and anxieties resulting from the filing of these suits. It was then that we at Center Law thought of the idea of a class suit. There are two very seldom used provisions in Philippine human relations law which has its roots in the common law concepts of equity, morality, and justice: "Article 19. <Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith." "Article. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs and public policy shall compensate the latter for damages." Using the said laws, my colleagues and I at Center Law formulated a class suit against the First Gentleman. Our theory is that while the husband of the President has the ostensible legal right to file libel complaints against members of the media, the manner by which he filed these cases and the number of cases thus filed, coupled with his statement at that time that he will continue filing these types of cases against journalists who will write disparaging articles against him, constitute an abuse of right. The issue in the class suit is not whether he has the right to file these cases, but whether these cases were filed in abuse of his right to do so and in order to suppress the exercise of the freedom of the press. The fact that the First Gentleman is also a lawyer strengthens the theory that the cases he filed were done in abuse of right because he very well knew that he had no cause of action to file and maintain these defamation cases. The First Gentleman was merely after suppressing any adverse publicity that may be written about him. After we filed the class suit, the First Gentleman filed his Answer and he

Libel Suits against 46 Journalists Filed by the Husband of The Philippine President From 2003 to 2007, the husband of the Philippine President, First Gentleman Jose Miguel Arroyo, filed a barrage of criminal defamation cases against 46 Philippine journalists. In addition, the First Gentleman claimed an amount of US$3.2 million in damages against the journalists. The cases were filed in connection with articles published which were critical commentaries on the First Gentleman. As a result of the libel cases, several journalists were threatened with warrants of arrest. One journalist was even threatened with arrest in the Presidential Palace, which was her assignment. In April 2007, the First Gentleman suffered a life threatening medical emergency when he was rushed to the hospital because of an aneurysm. He underwent a double operation for the near ruptured aorta and for a triple heart bypass. The operations were successful but the First Gentleman was strictly advised by his doctors to avoid stressful conditions. After his hospital discharge, the First Gentleman was forced to move for the dismissal of the libel cases. Some of the libel cases were dismissed because the journalists refused to accept the dismissal of the cases by the First Gentleman but instead pressed for trial - and since the First Gentlemen could not be present, the cases were dismissed and the journalists were acquitted for lack of evidence.

Class Suit Against The Husband of The Philippine President When the First Gentleman was still filing and prosecuting the barrage of libel cases against the 46 journalists, these journalists felt helpless. Journalists felt that every time they wrote anything critical of the First Gentleman, all they could do was to wait for him to file libel cases against them, and then and only

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raised a plethora of technical arguments in his attempt to have the cases dismissed outright. Among others, he alleged that: (a) the correct amount of court filing fees was not paid; (b) several of the plaintiffs~journalists had not been sued by him so they had no personality to join the class suit; (c) the class suit is premature because the libel cases have not been decided on the merits, and; (4) the trial court has no jurisdiction over the case. Invoking his technical arguments, the First Gentleman filed a motion for a preliminary hearing on the grounds that he rose in support of his prayer for the summary dismissal of the class suit. The trial court granted his motion for preliminary hearing. In the meantime, however, divine justice intervened, and the First Gentleman suffered an aneurysm and he underwent double surgery. After his medical operations, the First Gentleman could not take the witness stand to testify in the preliminary hearing that he requested. Left with a client who could not take the witness stand, his lawyers subpoenaed the plaintiff journalists to compel them to testify as hostile witnesses. His lawyers also filed motions to compel the plaintiff journalists to produce all the articles that they had written which were critical of the First Gentleman. His lawyers further filed interrogatories to be answered by the plaintiff journalists. Of course, the effect of all these supposed modes of discovery is to harass the journalists with these time-consuming technicalities that will require their time and attendance in court. The aim of the First Gentleman is to exasperate the journalists in order to force them to drop the class suit. During one court appearance, the First Gentleman's lawyer even orally moved that the trial court issue warrants for the arrest of the journalists because of their refusal to comply with the discovery that they are seeking. These technical issues are still the subject of motions and counter motions filed in court and the trial court still has to decide with finality on these preliminary technical issues. In the meantime, the trial court issued an order deferring the resolution of the First Gentleman's issue on the correct filing fees. The trial court stated that the correct filing fees can be a deductible item if and when a monetary award is given to the plaintiff journalists. Not satisfied with this preliminary ruling by the trial court, the First Gentleman has filed a petition for certiorari in the Court of Appeals arguing that the trial court abused its discretion when it refused to dismiss the case based on the supposed non-payment of the correct filing fees. To our shock and consternation, the Court of Appeals has issued a writ of injunction to stop the trial court from further proceeding with the hearings on the preliminary issues raised by the First Gentleman himself, until the Court of

Appeals decides on the abuse of discretion issue raised by the First Gentleman. The Court of Appeals ordered the First Gentleman to post a one million pesos (P1,000,000.00) injunction bond to stop the trial court proceedings and he immediately deposited cash. My colleagues and I at Center Law have filed a motion for reconsideration with the Court of Appeals on the issuance of the injunction. We are inclined to elevate the issue to the Supreme Court if the Court of Appeals will not recall the injunction.

Damage Suit Filed by Journalists Against Government Officials On November 27, 2007, a group of military rebels who were attending trial for staging an attempted coup d' etat suddenly walked out of the courtroom. Accompanied by their military guards who apparently won their sympathy, the military rebels proceeded to a five-star hotel where they held a press conference calling on President Gloria Arroyo to step down from office. The journalists who were covering the courtroom trial followed the rebels to the hotel and thereafter more journalists came to cover their press conference and the events that were unfolding. While the military rebels were holed up in the hotel, several prominent personalities came to join and the rebels kept issuing statements that were newsworthy, so the journalists stayed in the hotel to cover the events. After several hours, combined police and military forces gave the rebels an ultimatum to surrender. The police also asked the journalists to vacate the hotel. The police fired tear gas canisters inside the hotel and the rebels declared that they were ready to surrender but that they could not get out of the hotel because of heavy tear gas smoke in the lobby. The journalists continued to stay with the rebels to cover events. The police thereafter forcibly entered the hotel and arrested the rebels. The police did not stop at arresting the rebels but went on to arrest even the journalists who were covering the unfolding events. Even after the journalists showed their press identification cards and were vouched for as journalists by their superiors who were in contact with the police, the journalists were still arrested. Some of the journalists were even handcuffed and roughly handled. The journalists were then brought to a notorious prison camp where they were "processed" and, after several hours, released. Enraged and infuriated at the treatment they received, a group of journa-

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lists filed a landmark civil suit against the heads of the Department of Interior and local government, Department of Justice and the Department of Defense, as well as the head of the Philippine National Police and the head of the Armed Forces of the Philippines. We at Center Law represent them in the case. In this case, the journalists seek an award for damages against the authorities for having violated their constitutional right to a free press and a permanent injunction prohibiting the government from giving similar treatment to journalists in similar events. On the day Center Law filed the case, a temporary restraining order was issued by the court prohibiting the government from similar harassment against journalists. The court order, albeit temporary, was a landmark symbolic victory for the Philippine Press. Court hearings are now ongoing on the issue of whether the injunction order against the government should be made to become effective for the entire duration of the court case. We are submitting our Memorandum to the Court in support of the issue on May 8, 2008. [Tordesillas et al. v. Puno et al., Civil Case No. 080806 (Makati City Regional Trial Court Branch 51)]

The Supreme Court granted the petition for Amparo. This is the first time the High Court has issued the writ of Amparo to a journalist. The proceeding seeks to provide a protection order on behalf of the Mr. Baculo from harassment or death threats. After the issuance of the writ, the Supreme Court remanded the case to the Court of Appeals for the reception of evidence proving that, indeed, Mr. Baculo's life is in danger. The proceeding is now ongoing. [In the Matter of the Petition for the Writ of Amparo in Favor of Mr. Nilo H. Baculo Sr, GR No. 00022 (Court of Appeals)]

Petition for The Writ of Amparo of Journalist Nilo Baculo Nilo Baculo was a provincial broadcast journalist and subsequently a citizen journalist who published a bond-sized news leaflet entitled Traveler's News. Mr. Baculo's articles exposed graft and corruption and criminal acts committed by provincial government officials and a utility company in his province. Because of his exposes, Mr. Baculo claims that the subject of his exposes enlisted a hired gun to assassinate him. It turned out that the hired gun was previously a beneficiary of a good Samaritan deed, courtesy of Mr. Baculo. The hired gun refused to carry out the assassination and, instead, warned Mr. Baculo and confessed about the contract to take his life. Mr. Baculo sought the help of the National Union of Journalists of the Philippines (NUJP) and the NUJP enlisted our legal assistance at Center Law. We decided to file a Petition for a writ of Amparo in the Supreme Court. In his petition, Mr. Baculo urged the Court to protect him from an alleged murder plot by respondents Mayor Paulino Salvador Leachon and other government officials of Calapan City, Oriental Mindoro. In his petition, Baculo claimed that his life has been in danger because of his efforts as a journalist to inform the public of the "acts of public officials which he believes to be illegal, fraudulent, and morally reprehensible."

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IV. Defamation in Malaysia4

In Malaysia there is both criminal defamation and civil defamation: Civil defamation refers to the Defamation Act, 1957 where "defamation is established if a plaintiff is able to show that publication of the defamatory statement was done, and the defamatory statement made, with malicious intent and/or the words in the defamatory statement in their natural and ordinary meaning reflect the defamatory intention. Further, the plaintiff must show that the statement is not a fair comment or justifiable." However, criminal defamation which carries a fine, imprisonment, or both is provided for under Chapter XXI Section 499 of the Penal Code, where defamation is established once it is shown that the "words either spoken or intended to be read or by signs, or by visible representations, make or publish any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person."5

Important Defamation Cases and Landmark Awards In the past, defamation suits between individuals were awarded small amounts. In the 1920s, a newspaper, Utusan Malaysia, was sued by the police for a letter it carried describing a police superintendent caught at a public dance (ronggeng). The paper had to pay less than $5,000 but this was so much at that time it had to be closed temporarily. The 1990s saw the start of mega defamation suits, involving a business tycoon close to the then-Prime Minister. The Tan Chee Yioun (Vincent Tan) v Haji Hassan Hamzah [1995] case became a binding precedent for mega suits when the Federal Court upheld the award to the plaintiff (Vincent Tan, a business tycoon) for the amount of RM 10 million (US$3 million). The plaintiff, the

4 Based on paper by Gayathry Venkiteswaran, Executive Director, Centre for Independent Journalism, Malaysia. Email: gayathry@cijmalaysia.org . +603.4023.0772 . +6016.312.3478 5 "Penal Code (Act No. 574)" UNHCR: http://www.unhcr.org/cgi-bin/texis/vtx/rsd/rsddocview.html?tbl=RSDLEGAL&id=3ae6b5cf0

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group chief executive officer of Berjaya Group Bhd, a public listed company, claimed damages for the torts of libel and conspiracy against seven defendants in respect to four articles published in three issues of "Malayan Industry". Mokhtar Sidin J awarded a total of RM10 million in damages against the defendants, including the late MGG Pillai who is remembered as a well-respected journalist and writer.

Kamalanathan Ratnam awarded each plaintiff RM25,000 (US$8,000) against each of the defendants.

Tjanting Handicraft Sdn Bhd v Utusan Melayu (M) Bhd [2001] The plaintiffs sued the defendants over an article in a women's magazine, Wanita, in which the authors of the article alleged that the plaintiffs produced unsightly batik and that the second plaintiff had brought shame to the country by allowing the 'world leaders to wear unsightly and ugly shirts' during the APEC conference in Malaysia. The judge awarded a total of RM1.3 million (US$430,000) in damages.

Previous Awards Against The Media Vincent Tan was not the only beneficiary of the Defamation Act and expensive awards.

Tun Datuk Patinggi Haji Abdul Rahman Ya'kub v Bre Sdn Bhd [1996] The plaintiff, the former Chief Minister and Governor of Sarawak claimed damages for libel published in an article of a local daily newspaper. RM100,000 (US$30,000) in damages was awarded.

Defamation suits in Malaysia against the media have not been confined to national media. There have also been examples of foreign media outlets being sued:

Insas Bhd v Samuels [2004]6 Noor Asiah Mahmood v Randhir Singh [2000] The plaintiffs claimed damages against two articles in the New Straits Times, inter alia. Kamalanathan Ratnam awarded the first plaintiff RM300,000 (US$100,000) and the second plaintiff RM200,000 (US$60,000) for general damages. The Judge also awarded each of the plaintiffs aggravated damages of RM200,000 (US$60,000), making a total of RM1 million (US$300,000). The plaintiffs claimed damages against the defendants arising out of the publication of a feature article entitled "Malaysian Justice on Trial", which was published in the November 1993 issue of the International Commercial Litigation Magazine. The magazine is published in London and circulated in Malaysia and elsewhere. Both plaintiffs claimed against the defendants damages of RM25 million (US$8 million) each including exemplary damages for libel contained in the article. The trial judge awarded the respondent as against the appellant a total of RM500,000 (US$160,000) in damages for each of the plaintiffs. In 2005, Anwar Ibrahim won a suit worth RM 4.5 million (US$1.5 million) in damages from Datuk Abdul Khalid Jafri Bakar Shah, author of "50 Dalil Mengapa Anwar Tak Boleh Jadi PM" (50 Reasons why Anwar cannot be PM"),

Ummi Hafilda Ali v Karangkraf Sdn Bhd (No 2) [2000] Ummi Hafilda and a fellow witness in the Anwar Ibrahim case sued the defendants, a publisher of a host of magazines and weeklies, the printer and the distributor for publishing an article about them in one of their entertainment publications, Bacaria. They were said to be married to each other, and it was alleged that the article had damaged their reputation.

6 "Insas Bhd v Samuels" High Court of Malaysia (20 August 2004): http://www.ipsofactoj.com/highcourt/2005/Part3/hct2005(3)-004.htm

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which was distributed on the eve of his sacking from the government and party posts in 1998. In 2006, business tycoon Vincent Tan Chee Yioun settled out of court for an undisclosed amount against Professor Jomo Kwame Sundram and four others along with Star Papyrus Printing Sdn Bhd. The suit was over an article entitled: "Malaysia Props Up Crony Capitalists" which appeared in The Asian Wall Street Journal (Dec 21, 1998).

favorable projects by the government. The issue was published in the Islamic party newspaper, Harakah.

Politicians, police and the media Sentul police chief ACP K. Kumaran filed a RM 10 million libel suit against a Party Keadilan Rakyat supreme council member and a Tamil daily, and this was followed by a counter suit by Party Keadilan against the police chief for defamation and breach of public duties. This is related to investigations into the murder of a woman said to have been in a relationship with a senior Cabinet member's son. In this case, the Tamil daily, Makkal Osai, has faced continuous attacks from the ruling Indian party and was recently harassed again as the government refused to give it its annual publishing permit. The decision was overturned believed to be because of mass pressure on the government. There are many unpublished cases of individuals and corporations that have threatened defamation suits against the media and journalists. The media organizations receive legal letters threatening defamation, possibly so that they would stop the publication of stories. In one recent case, a Chinese daily, Oriental Daily News, and its journalist received two legal letters from individuals who were shareholders of a company involved in a scandal uncovered by blogs and some newspapers. The individual involved is a Member of Parliament from Sarawak. The story involved was critical of the project, known as the Port Klang Free Zone, and this journalist went so far only to name the major shareholders in the company involved in this project.

Corporate versus Media In March 2006, Civil Engineering Design Consultant, Maunsell Sharma & Zakaria, the consulting firm for the design of Ampang-KL Elevated Highway (KLT) sued Utusan Melayu (M) Bhd for RM 50 million for libel. The firm claimed that the Utusan Malaysia daily had published defamatory words in two page-one articles on February 9 and 10 about cracks on the Middle Ring Road 2 highway and these were caused by flaws in the engineering design of the highway. P&A Sestet Sdn. Bhd sued The Star and its reporter Sera Habitu for an article written on February 18, 2007 called "Illegal Sand Dredging in Kemah" for RM 20 million (US$6 million). The suit claims that the article gives an indication that the company is conducting illegal business without a license. This project is controversial environmentally, but no conclusion as yet.

Politicians collide Chief Minister Tan Sri Abdul Tab Maimed demanded a public apology and an undisclosed compensation from Party Keadilan Rakyat (PKR) and its two Sarawak leaders over the distribution of leaflets which he claims were highly defamatory against him. Caught in this is Malaysiakini.com, which published the story that the Chief Minister had been involved in a shady deal over logging concessions. Defamation suit filed against PAS politician Husam Musa by company ECM Libra Berhad, closely linked to the Prime Minister's son-inlaw Khairy Jamaluddin on January 17, 2006 over an article by Husam entitled "How did Khairy buy the shares of ECM Libra?" In this article, doubts were raised about the ability of the young politician to raise millions to purchase shares in a company that has also received

Landmark Case Involving Bloggers 2007 saw a range of suits filed and the landmark case was by a big media house against two bloggers, one a former journalist, Ahiruddin Atan, and another an IT consultant and blogger, Jeff Ooi. On January 11, the New Straits Times obtained an injunction that ordered Jeff Ooi to remove alleged defamatory postings from his blog - this includes thirteen posting from Feb 16-Dec 4, 2006 - by January 17, 2007. The case against Ooi and Attan sparked debate in Malaysia whether blogs, online forums and websites are subject to the same defamation laws as written publications. Law Expert, Professor Dr. Shad Saleem Faruqi, as quoted in The

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NST, January 25, 2007, "Bloggers Subject to Same Rules", argued: "The definition of speech covers every form of communication in whatever form, written or symbolic. There is no doubt that bloggers are subject to the same rules."

the media into behaving "well" for political interests. Sedition Act 1948: Another relic, a broadly worded law that can be used by the state to silence critics and dissent. Opposition politicians, NGO activists and bloggers have come under investigations under this act, including Malaysiakini.com in 2003. The latest case a few days after World Press Freedom Day is the charging of a famous blogger, Raja Petra Kamaruddin, for his postings on a controversial court case involving the murder of a Mongolian woman. Two police officers and a think tank director closely linked to the Deputy Prime Minister are on trial for the murder. Official Secrets Act 1972: Introduced in the wake of the May 13 racial riots in 1969, effectively used to keep important decisions secret. Journalists and opposition politicians have been arrested and charged under this act. Internal Security Act 1960: A law from the emergency period that effectively creates a culture of fear among the people. Writers, opposition leaders, community leaders, professionals have been arrested and detained under this law, which denies the individual a right to trial. Police Act and Criminal Procedure Code: Tools by the police to investigate journalists and sources. At the moment, journalists from two English dailies have been called for questioning over exposes of mismanagement of funds by the outgoing Barisan Nasional governments at the state levels. Political control of the media: The biggest obstacle that submits journalists and editors into pathetic journalism. Very few challenge the ownership structure to do investigative reporting and to expose wrong doings.

Judicial Interpretations of Freedom of Expression? We have seen the courts upholding the multi-million Ringgit awards in civil defamation suits that are a cause of concern especially where involving the media. Only in an appeal in 2000 did the judge Gopal Sri Ram make a remark that defamation should not be used as an engine of oppression. "In the process of making our assessment we have not overlooked the recent trend in this country of claims and awards in defamation cases running into several million ringgit [] it is a decision that has been much misunderstood. The underlying philosophy of that decision is that injury to reputation is as, if not more, important to a member of our society than the loss of a limb. But we think the time has come when we should check the trend set by that case. This is to ensure that an action for defamation is not used as an engine of oppression. Otherwise, the constitutional guarantee of freedom of expression will be rendered illusory." In a recent decision involving a suit by NGO activist Irene Fernandez against Utusan Malaysia, the judge awarded Irene RM200,000 (US$60,000) in damages and emphasized responsible journalism on the part of the newspaper. The journalist and the newspaper had failed to provide a fair account of the story which involved a report by Irene of abuses in detention centers for immigrants. But such interpretations are rare and given the lack of faith in the judiciary (as recognized by the ruling government and its announcement for judicial reform), defamation is still viewed as a major threat to freedom of expression.

The Way Forward Build a strong and united media: The fraternity is not united, primarily due to competition. The willingness of the media bosses to "cooperate" with the ruling government also makes it difficult to promote media freedom and independence. Journalists are not working to uphold journalistic ethics, but to serve the interests of the media owners. A stronger media industry would send a signal that the defamation law cannot be used to control the media. Judges to apply rights standards to defend freedom of expression: Where the media is guilty, courts need to be mindful that the punishment should not sacrifice the right to freedom of expression of the media as well as to give due consideration to public interest. Mega defamation suits should not be set as a precedent.

The Bigger Threats for Media in Malaysia In Malaysia, the main instruments used to keep the media controlled and intimidated are the other laws that govern their distribution and sedition laws. Among the more problematic laws are: Printing Presses and Publications Act 1984: A relic of the colonial power, the law is most notorious for its annual requirement for newspapers to apply for publishing permits. CIJ has monitored regular use of the provision to coerce

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Increase advocacy towards greater freedom of expression and media freedom: A local and regional advocacy strategy would go a long way to keep a check on the use of defamation to control the media. At the same time, a network to support journalists and media should be in place for legal and financial support. Repeal all other laws that jeopardise freedom of expression: Malaysia must move ahead and reform its laws. It is one of the most backward in terms of promoting liberties and human rights. Civil society groups and opposition politicians are now working together to pressure the ruling government to repeal bad laws. It is a difficult task, but the new political landscape has opened some windows of opportunities.

V. Defamation in Thailand7
Background In 2006, Thailand's military-installed National Legislative Assembly (NLA) passed into law the Press Registration Act. This Act replaced a previous 1941 Press Act, which was one of the most draconian pieces of legislation that governed print media in Thailand. Under this new Act, Thai nationals who want to start a newspaper can simply "notify" the authorities rather than seek a permit, as was required under previous legislation. Furthermore, Thai authorities can now no longer censor or close any newspaper under any circumstance8. For cases related to defamation, the new Press Registration Act relieves newspaper editors and publishers from the offence committed by the author of a defamatory article. In the 1941 act, the editor and the author of a defamatory article had to share liability as principals of the offence. If the author could not be located, the publisher had to become a principal of the offence as well. Now, only the reporter or columnist can be sued for a perceived defamatory offence regarding to publication in newspapers.

Three Court Cases of Tesco Lotus in Thailand Three defamatory lawsuits filed recently by Tesco Lotus in Thailand - the first in November 2007, the second in February 2008 and the last in March 2008 - are cases in point. The lawsuits involve three articles published in Thai-language daily newspapers. Tesco Lotus suited only the interviewee in one case and only the authors of the articles in two other cases. No editor or publisher was sued in any of the three cases.

7 Report by Sinfah Tunsarawuth, media lawyer. Email: sinfah@hotmail.com 8 However, the new Act still allows the country's police chief to bar the bringing into the country any publication that deems to be lese majeste or contrary to public order or good morals. For instance, the police chief still can prohibit anyone from bringing into Thailand the book "The King Never Smiles".

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I. Tesco Lotus9 v Jit Siratranont The charges were filed with the criminal court in Bangkok on 26 November 2007. Tesco Lotus did not file a separate civil case. The court of jurisdiction is the criminal court on Ratchada Piset Road in Bangkok. It is the same court that had heard the Shin Corp v Supinya case. In the judgment of the criminal court, if the plaintiff wins the case, the judge can award monetary compensation exceeding the maximum amount of fine set in the Penal Code in addition to sentencing the defendant to jail.

"Talking about Tesco Lotus, a retailer of British nationality which has been heavily expanding its branches in Thailand, it was able to move its sales volume ranking from No. 8 in the world in 2005 to No. 4 in 2006 with a total sales of US$ 79,978 million. The frightening fact is 37%10 of its sales volume is generated from its branches in Thailand. That is the key reason why Tesco has been rapidly expanding its branches" "[talking about expansion of major multinational retailers, including Tesco, in Thailand]If there is no plan to slow down the branch expansion of major retailing stores and convenience stores, in the future Thailand will see branches of foreign retailers everywhere, which will monopolize from top to bottom, collaborate in profit making and destroy small retailers. There will be no independent traders left Regarding the tricks or unfair trade in wiping out small shops, these foreign retailer groups will sell their goods below cost (in certain categories of goods and limit the number of items consumers can buy) to attract as many as customers into their stores. At the same time, these stores use the number of store visitors in their bargaining to generate other income, which is higher than the income generated from selling their goods. In addition, they made unfair trade agreements without the kind of moral and trade ethics practiced by their parent companies" The charges say on the same day, the defendant acting as the principal by employing, hiring, asking as favor or instigating, or by any other means, caused the editor of the Manager daily to publish such statements for distribution across the country on 1 October 2007. (2) On 26 September 2007, the defendant allegedly made statements defamatory to the plaintiff at a seminar to inaugurate a coordinating center of independent Thai retailers and business owners of a confederation of Thai people against foreign retailers at Kasetsart University in Bangkok. Most of what Jit said at the seminar was similar to his interview to Manager. But he also said major foreign retailers have threatened to withdraw their investment if they faced too many problems in Thailand. He said Ek-Chai Distribution was incorporated

The Defendant Jit Siratranont is a businessman, owning a car care company in Petchburi province, two hours south of Bangkok, which is also his hometown. He lives in Petchburi but also has a house in a Bangkok suburb. After the 19 September 2006 military coup, he was appointed as a member of the National Legislative Assembly, the military-installed legislative body. He currently is a vice secretary general of Thai Chamber of Commerce, a private organization representing businesses across the country. Jit currently heads a committee of the chamber to study the retailing business and has studied the expansion of multinational retailers in Thailand and the impact on local small retailers. He has written a book on the issue and is well-informed.

The Charges Tesco Lotus cited two separate acts committed by Jit: (1) On 1 October 2007 Jit gave an interview to a reporter of the Manager daily newspaper, saying "Tesco Lotus sucked money worth tens of thousands of millions each year from Thai consumers back to its parent company in England"

9 Tesco Lotus is the trade name in Thailand of Ek-Chai Distribution System Company Limited, which is the officially registered company name under Thai law (and is used in this chapter for purpose of clarity). The name of the plaintiff in the court's filing in all three cases against Jit Siratranont, Kamol Kamoltrakul, and Nongnat Hanwilai is Ek-Chai Distribution System Company Limited. 10 Jit has explained that Manager misquoted him on the number 37%. It was actually 3.7%. He said Manager had printed another story correcting the figure on the following day, but Tesco Lotus did not mention this.

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under Thai law on 13 August 1993 with a registered capital of one million baht. Its registered capital was at a height of 33,900 million baht on 25 December 2001. On 26 May [no year given], its capital was reduced to 20,550 million baht, reflecting that over 10,000 million baht of capital had already been withdrawn. Tesco Lotus said the acts committed by the defendant have caused the plaintiff to suffer damages calculated in monetary terms of no less than 1,000 million baht, but it did not show how it came up with such a number.

made visible by any means, gramophone record or other recording instruments, recording picture or letters, or by broadcasting or spreading picture, or by propagation by any other means, the offender shall be punished with imprisonment not exceeding two years and fine not exceeding two hundred thousand baht. Section 326 is the key provision on criminal defamation in the Penal Code. Section 91 was cited because Tesco Lotus referred to two separate acts committed by Jit.

Status of the Case Applicable Law Tesco Lotus said in the criminal charges that Jit has committed offences under the Penal Code in three sections as follows: Section 91 - If it appears that any offender has committed several distinct and different offences, the Court may inflict upon such offender the punishment prescribed for each offence. But, whether there shall be increase of the punishment, reduction of the punishment or reduction in the scale of the punishment, or not, the total punishment of every offence must not exceed the following determination: ten years in the case of the severest offence having the rate of the maximum punishment of imprisonment not exceeding three years; twenty years in the case of the severest offence having the rate of the maximum punishment of imprisonment exceeding three years but not more than ten years; fifty years in the case of the severest offence having the rate of the maximum punishment of imprisonment exceeding ten years, except in the case where the Court inflicts upon the offender the punishment of imprisonment for life. Section 326 - Whoever imputes anything to the other person before a third person in a manner likely to impair the reputation of such other person or to expose such other person to hatred or contempt is said to commit defamation, and shall be punished with imprisonment not exceeding one year or fine not exceeding twenty thousand baht, or both. Section 328 - If the offence of defamation be committed by means of publication of a document, drawing, painting, moving pictures, picture or letters On 20 January 2008, the criminal court called both parties to the court and attempted to mediate. Mediation is now the regular practice of Thai courts for any non-serious offence. Jit said Tesco Lotus demanded that he printed apologies in newspapers. The court sought another attempt at mediation on 4 April 2008, but Tesco Lotus sent only its lawyer, who Jit claimed could not make any decision. So no agreement was reached. In Jit's case, if the current mediation efforts fail, court proceedings will start with the judge conducting a preliminary hearing to determine whether Tesco Lotus's charges are a prima facie case. If the court decides that the charges are prima facie, then it will take up the case. Only then will the defendant be required to file an answer to the charges. If the court decides otherwise, the case will be dismissed. As of October 2008, Jit's case is still in mediation. The court hearing has not started yet. Jit said he would not accept any settlement requiring him to make apologies to Tesco Lotus. He said he was confident that his evidence would show he did not commit defamation and that he was ready to fight. He is glad that now the press has joined the campaign against Tesco Lotus's rapid expansion and he was ready to join any campaign on the freedom of expression out of these three court cases. Jit said he is willing to work with the lawyers and defendants in the other two cases, for example, in sharing witnesses and documents.

II. Tesco Lotus v Kamol Kamoltrakul The charges were filed with the court of first instance at Prakanong in Bangkok on 29 February 2008. Only civil charges were filed. In civil cases,

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unlike in criminal cases, the plaintiff is not required to state the provisions of law under which the defendant is alleged to have committed the offence. Under Thailand's Civil and Commercial Code, libel is a tort or wrongful act.

The charges were filed with the court of first instance in Minburi province, just outside Bangkok, on 19 March 2008. Only civil charges were filed.

The Defendant The Defendant Mr. Kamol Kamoltrakul contributes articles to a few Thai-language newspapers: Kom Chad Luek and Krungthep Turakij, which both are sister publications of Thailand's English-language daily The Nation, and Prachachart Turakij of the Matichon group. He also teaches economics on a part-time basis at ABAC University in Bangkok. Kamol also works as a volunteer at the National Human Rights Commission. Nongnat Hanwilai has always been a journalist. She has been working with the Thai-language Krungthep Turakij daily for the past 20 years, and is currently the newspaper's editor of marketing news.

The Charges The charges emerged out of an article published on 29 January 2008 in Krungthep Turakij and written by Nongnat in her gossip-styled column. The charges quoted the column as saying: "Jeff Adams, the big boss of Tesco Lotus, firmly announced he would continue to invest in the building of 130 branches of Tesco Lotus in all models this year. This is shocking. Imagine that on average it will open a new branch every three days. This is not lovely anymore. At each branch, heavy construction continues day and night, causing troubles for the local communities. This is disheartening. Lately, it is prepared to open a new branch on 5 February at a side road connecting Tivanon. Hey! Tesco does not love the Thai people!" Tesco Lotus said in the charges that previously Tesco Lotus had made several complaints to the executives of Nation newspapers group, of which the Krungthep Turakij newspaper is a member, about articles written by Nongnat, which tended to attack Tesco Lotus without any good reason or evidence. It said Nongnat was aware of those complaints but continued to write the article cited in the charges. Similar to the charges against Kamol, Tesco Lotus cited a long list of charities the company has contributed to in Thailand and said it paid 1,235,994,515.39 baht worth of taxes for the 2006 tax year. The charges said the defendant's act has caused damages worth 100 million baht to Tesco Lotus. Again, Tesco Lotus did not show how it came up with such a number.

The Charges The charges emerged from an article written by Kamol in Krungthep Turakij on 29 October 2007, in which, as with Manager daily's misquotation of Jit, Kamol repeated that 37% of Tesco's global sales were generated in Thailand. The charges quoted Kamol as written in his article: "Applying a complicated system of accounting, almost all of its sales have been channeled back to its parent company. It did not pay taxes locally. The sale volume was high but the value of profit was made low as various expenses were subtracted. It did not report its indirect revenue in its performance report." In the charges, Tesco Lotus cited a long list of charities the company has contributed to in Thailand and said it paid 1,235,994,515.39 baht worth of taxes for the 2006 tax year. The charges said the defendant's act has caused damages worth 100 million baht to the plaintiff. Again, Tesco Lotus did not show how it came up with such a number.

Status of the Case Kamol has filed his answer to the court and his case is under mediation. No court hearing has taken place yet.

Status of the Case III. Tesco Lotus v Nongnat Hanwilai Nongnat has filed her answer with the court. Her case is under mediation.

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No court hearing has taken place yet.

VI. Defamation in Indonesia7

Constitution Guarantees for Freedom of Expression are Weak Indonesia's Press Council is fighting for further amendment of the constitution to ensure that the rights of Indonesian citizens on press freedom are strengthened in the constitution by including the following: "all rules, regulations and laws that limit press freedom are prohibited." The second Amendment of Articles 28E and 28F of the 1945 Constitution protects press freedom: Article 28E Every person has the right to associate, to assemble and express opinions. Article 28F Every person has the right to communicate and receive information to develop him self/herself and his/her social environment, and has the right to seek, to gather, to own, to keep, to manage and to give information by using all channels available. The second Amendment's inclusion of Article 28J provides a legal umbrella against those that threaten press freedom: Article 28J Every person must respect other people's human rights in the framework of living as a member of the society, as a nation and the state.

Increasing Number of Laws That Threaten Press Freedom The Penal Code: The Dutch colonial rulers in 1917 passed the Penal Code (known as Wetboek van Strafrecht) or, in Indonesian, KUHP. The Penal Code contains 37 articles which could send journalists to jail for their journalistic

7 Based on a paper by Leo Batubara, Vice Chairman of Indonesia's Press Council. Email: leo_batubara@yahoo.com

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work. Now, 63 years since Indonesia's proclamation of independence, the law is still in use. During the reign of President Soekarno (1945-1966) and President Soeharto (1966-1998), scores of journalists were jailed for their journalistic works, because the authorities considered their reports were not in the interests of the authorities. In August 1945, the Editor-in-Chief of the daily Indonesia Raya, Mochtar Lubis, was jailed for nine years for his articles in the paper which reported rampant corruption among government officials. He was jailed for violating articles 154 and 207 of the Penal Code that put a maximum jail term of seven years. Judge Abdul Razak Sutan Malelo's decision to free Mochtar Lubis from the threats of the penal Code, was a reflection of a judge who based his decision on the principle of law - independent, responsive and just - in accordance with the Constitution, the rule of just law. However, despite the judge's decision to free Mochtar Lubis, he was immediately thrown into jail by the military police that were waiting for him outside the court room. That was the beginning of the era of the law of rules against the press. In the reform era (since 1998), score of journalists have been jailed because they were considered to have violated the Penal Code: The Chief Editor of Rakyat Merdeka, Karim Paputungan, was sentenced to five months imprisonment with 10 months probation (9/9/03). An accompanying photograph of his news reports was considered to defame the General Chairman of the Golkar Party, Akbar Tanjung. The Managing Editor of Rakyat Merdeka, Supratman, was sentenced to six months imprisonment with a probationary period of 12 months (17/10/03). A headline of the paper entitled "Megawati's Breath Smells of Diesel Oil" was considered libelous against President Megawati. The Editor-in-Chief of the weekly Oposisi (opposition), Dahri Nasution, was found guilty by the judges of the Supreme Court and was sentenced to one year imprisonment. On October 23, 2007 Nasution was detained at Tanjung Gusta Prison in Medan. His case began from a news report in Oposisi in the second week of November 1999 issue entitled "3.5 years in Office - The Rector of IAIN has allegedly Accumulated Wealth through Collusion, Nepotism and Corruption (KKN)

". The report prompted the Rector to report Nasution to the police on defamation charges. The Supreme Court on January 13, 2006 sentenced the Chief Editor of the daily Radar Jogja, Risang Bima Wijaya, to six months imprisoned. Radar Jogja's news report over its May-October 2002 editions were considered by the publisher of daily Kedaulatan Rakyat, Soemadi Martono Wonohito, as libelous against him. Risang has been imprisoned at Sleman, Yogyakarta, since December 10, 2007. The current Penal Code has been useful in imprisoning the leaders of Indonesia's independence movement and the press. A number of facts have shown us that during the past 63 years of independence, the Penal Code has been and is still being used to protect officials, politicians and business people who have "problems" by means of jailing or threatening professional journalists who uncover their dirty laundry. The government is drafting a revised Criminal Code which contains 61 articles that can imprison journalists for carrying out their journalistic works. The Press Law protects the press in controlling the government but the Criminal Code Bill kills the Press Law and Press Freedom.

The Civil Code: Three cases highlight how Civil Law has been used to threaten media bankruptcy: Trust magazine was sued by the Director of PT. Petindo Perkasa, John Hamenda, for news which appeared in the magazine's 1-7 October 2003 edition entitled "The Group caused BNI to Collapse." The Central Jakarta District Court judge awarded the plaintiff Rp.1 billion (13/5/03). On June 2003, a representative of O.C. Kaligis law firm, Purwaning Yanuar, on behalf of the boss of PT. Texmaco Group, Marimutu Sinivasan, sued the publisher of Kompas, Jakob Oetama, Chief Editor Suryopratomo and the Company PT. Kompas Media Nusantara at the Central Jakarta District Court because the paper published reports and pictures of the plaintiff from November 1999-April 2003, which the plaintiff considered untrue. Kompas was sued to pay damages of US$ 150 million (material) and US$ 1 million (immaterial), a total of about Rp.3.5 trillion. A team of Supreme Court Judges (28/8/07) punished TIME Magazine

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to pay former President Soeharto Rp.1 trillion (US$ 110 million) for damages. TIME Magazine Asia, edition 20 of May 24, 1999, published the findings of its investigative reports about how former President Soeharto amassed his family fortune or "Soeharto Inc". TIME Asia valued Soeharto's and his family's wealth at US$ 15 billion.

Besides distribution via print media, press products are now also available online and through radio stations, television and the internet. Mainstream media like Kompas, Media Indonesia, and Tempo nowadays can be accessed in the form of electronic media. Article 27 (3) and Article 45 (1) of the ITE law states that any media which distribute journalistic products which contain blasphemy and defamation in electronic form face a prison sentence of up to six years and/or a fine up to a maximum of 1 billion rupiah. The problem, however, is that the Press Law and Penal Code define blasphemy and defamation differently. As an illustration, Tempo Magazine's article, "Ada Tomy di Tanabang," (3/3/03), was, according to the First Court Decision of Central Jakarta and High Court of Jakarta, referred to the Penal Code and Law No. 1/1946 and considered criminal on the basis of false news, blasphemy, and defamation. However, according to the Supreme Court's decision of 9 February 2006, this case was considered in light of the Press Law and not considered to have violated the law. Another paradox from the ITE law is article 28 (2) which refers to criminal sanctions for anyone distributing information that could incite racial, religious, and/or ethnic tensions. These Articles were taken from Articles 134, Article 136, and Article 137 of the Penal Code which were, on 6 December 2007, annulled by the Constitutional Court.

Law No. 1/1946 on the Civil Code: False news, with the intention to create riots among the society, will be punished by a prison sentence of a maximum of nine years. Influential businessman Tomy Winata reported an article entitled "Ada Tomy di Tanabang" in Tempo Magazine to the prosecutor by using Penal Code and Law No.1/1946. Tempo's Chief Editor Bambang Harymurti was charged to serve in prison for nine years. Law No. 32/2002 on Broadcasting: Several articles in the Broadcasting Law accommodate cruel legal politics. Broadcasting content considered to be blasphemous/libelous, or false, is threatened with a prison sentence of up to five years and also a fine up to a maximum of 10 billion rupiah. Law No. 10/2008 on Election of DPR, DPD, and DPRD: Article 97 of this law states that, "Print media must provide a fair and balanced page space and time to cover news and interviews including the campaign advertisement for participants of the election". If any media violate this Article they can be forced to close down (Article 99 (1)). Whereas Article 18 (2) of the Press Law states that, "those who threaten censorship and bans face a maximum prison sentence of two years and a fine up to a maximum of 500 million rupiah". Law No. 14/2008 on Transparency of Public Information: The Law on Transparency of Public Information which was legalized in April 2008 is also a Paradox Bill. The title is Transparency but its content includes threats of imprisonment. This Bill regulates confidential information and public information. Public Information should be open for public access, but this law contains the threat that, "those who misuse public information face imprisonment of a maximum of one year." These articles will hamper the effectiveness of investigative journalism in using public information to curb the corruption of bureaucracy and state-owned enterprises. Law No. 11/2008 on Information and Electronic Transactions (ITE): The development of information technology has an impact on the survival and progress of the printing industry, which has to follow media convergence.

The Press Law (No. 40/1999) Protects Press Freedom The Paradigm of the Basic Press Law was Authoritarian 1. The government controls the press. 2. The government was entitled to intervene in press management. The Minister of Information was entitled to issue government regulations and ministerial regulations. The Press Law (No.40/1999) has a Democratic Paradigm 1. The press controls the government. 2. The government is not entitled to intervene in the running of the press. There are no government regulations or ministerial regulations. Press regulations are by, from and for the press community (which is self-regulating).

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3. The government's first tool to control the press was to issue a licensing system. 4. The government's second tool to control the press was to implement a policy of law that criminalized the press.

3. Print media do not need a license. They are free of censorship and ban. 4. The Press Law does not criminalize the press. Journalistic mistakes are solved through the mechanism of the Right of Reply and through a due process of civil law with a proportional fine, if necessary. 5. The independent Press Council's main duties include: a. To defend press freedom b. To facilitate the drafting of press regulations c. To provide views and solve public complaints 6. Such an understanding of Press Freedom is strengthened in the Press Law (No.40/1999).

Written mistakes are solved with words (through Right of Reply). If the media refuse to serve the Right of Reply, they should be penalized with a fine not to exceed Rp.500.000.000 (Article 18 (2)). Libel, defamation or prejudging news reports. Those that fail to respect the principles of presumption of innocence shall be penalized with a fine not to exceed Rp.500.000.000 (Article 5 (1) and Article 18 (2)).

Reports outside the journalistic category (malpractice) If the news report is not a journalistic work, but falls within the category of malpractice, it can be prosecuted according to the Penal Code (Article 12 of the Press Law in its explanation stipulates that "it follows the existing laws" i.e. the Penal Code). News that fall under malpractice category includes: News which intends to blackmail. News resulting from fabricated reports. The news report contains actual malice to bring down certain person(s). News which contains pornography. News which intends to insult a religion.

5. The Press Council was chaired by the Information Minister whose main task was to legitimate government demands.

6. Such paradigms were strengthened in the Basic Press Law (No.11/1966, juncto No.40/1967 and juncto No.21/1982).

Appropriate Means to Settle Disputes Arising From Media Reporting News that meets the character of journalistic work Journalistic activities include: to seek, to gather, to own, to keep, to process and to release information. Based on credible sources, balanced and fair reporting, coverage of both sides, with verified facts, checked and rechecked. Written/reporting by impartial and independent journalists. The reports are of public interest.

Public Complains to the Press Council (2000-2007) Year Types of Complaints 2000 -July 2003 427 Aug Dec 2003 34 2004 59 2005 68 2006 79 2007 42 Total

Direct complaint letters to the Press Council Complaints cc'd to the Press Council Total

709

427

67 101

94 153

59 127

128 207

208 250

556 1265

If reports violate the Journalists' Code of Ethics or the Press Law, sanctions should be as follows:

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Indonesia's Press Freedom Rating Decreasing Year 2001 2002 2003 2004 2005 2006 2007 Indonesian Press Freedom Rating Freest 57 111 117 105 103 100 Number of Countries In Asia President B.J. Habibie 139 Abdurrahman Wahid 166 Megawati Sukarnoputri 167 Megawati Sukarnoputri 167 Susilo Bambang Yudhoyono 167 Susilo Bambang Yudhoyono 169 Susilo Bambang Yudhoyono

Defeated at the Constitutional Court

On Friday, August 15, 2008, I received this text message: "We were beaten. The Court rejected judicial review (request); PWI supports criminalization (of the press)." PWI is the Indonesian Journalists' Association. I was stunned. The SMS sender was a staff member in AJI's advocacy program who was following the hearing at the Constitutional Court. All was clear when the staff and others returned to the AJI office with downcast faces. "This is a tragic gift for independence," said Anggara, one of the lawyers requesting the judicial review. It was just a few days from Independence Day, August 17. A few hours later AJI issued a statement declaring regret over the Constitutional Court's ruling which rejected the request of a judicial review on defamation articles in the criminal code. The statement also asserted that AJI would continue to fight efforts of the state to criminalize the press. *** The story began with two journalists, Risang Bima Wijaya and Bersihar Lubis, who submitted a petition to the Constitutional Court. They had asked for the abolishment of criminal defamation articles which violate freedom of expression and which are often used to criminalize the press. Those articles were 310 clauses (1) and (2), 311 clause (1), 316, and 207 of the Indonesian Criminal Code, or KUHP. Through the petition, Risang hoped the Court would abolish prison sentences from article 310 and 311, while Bersihar hoped it would wipe out article 207 which gives privilege to Indonesian officials from being defamed or insulted by the public. Risang, a journalist with Jawa Pos newspaper, was released from jail on June 7, 2008 after serving a sixmonth sentence for defaming a local businessman. Bersihar was sentenced to one month in jail for defaming a state prosecutor. In line with the principles of the organization, AJI and other press organizations, except the Indonesian Journalists Association, PWI, have supported this judicial review initiative. A legal team was formed by Anggara, a young

Conclusion The Penal Code, Civil Code, Law No.1/1946, Law No.10/2008 on Elections, the Public Information Law and the Information and Electronic Transactions Law are obviously against the Press Law (No.40/1999). The Press Law protects control over the Press in order to promote clean and good governance. Those six Laws paralyze press control and threaten press freedom. It is now unclear where press freedom will go under President SBY. On one side, he states commitment to protect press freedom, but on the other side his ministers threaten Press Freedom.

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media lawyer, and representatives of the Legal Aid Institute of the Press, known as LBH Pers. AJI believes those articles in the Judicial Review request contradict Indonesia's Constitution, Article 28E, clauses (2) and (3), which guarantee freedom of expression as well as freedom of the press. We expect reform of the Criminal Code to uphold principles of justice and equality above the law. The Criminal Code has been around for 90 years, adopted during the Dutch colonial period. The petitioners for the judicial review had involved a number of experts including: Atmakusumah Astraatmadja (former chair of the Press Council and recipient of the Ramon Magsasay Award), who stated that a prison sentence for defamation can no longer be continued in a democratic state. Yenti Ganarsih, a criminal law expert at Trisakti University, who stated that defamation can harm the public's freedom of expression. Nono Anwar Makarim (legal expert) who said that prison sentences for defamation are no longer relevant; and that articles 207 and 208 of the Criminal Code were, in historical perspective, only designed for the Dutch colonial territory. Toby Mendel (an expert in comparative international law), who stated that prison sentences for defamation are no longer applied in many democratic nations, and that public bodies do not have such a reputation as such and that there are more appropriate ways for them to defend themselves than through launching costly defamation suits using public funds. Ifdhal Kasim (chairman, National Commission for Human Rights), who stated that limits to freedom of expression should not harm the public's interest and freedom of expression in general. However the ruling of the Court, which rejected the request for judicial review, stated that the 1945 Constitution and international law justify limits to freedom of expression, and that a person's honor and good name are protected by both the Constitution and international law. Also, the ruling stated that cultures differ among societies, and therefore protection against insult and defamation is still necessary to safeguard public order, including its related penalty of imprisonment.

The Court's logic clearly implies that state officials still need protection and privileges from the threat of defamation to safeguard their honor and their positions. AJI has stated its disappointment and deep regret because it is clear that the Constitutional Court is unable to balance the protection and honor of state officials with the public interest. The Court's rejection of the judicial review request has overturned this institution's image as a beacon of legal and constitutional reform in Indonesia.

Eko Maryadi Head of Advocacy Division The Alliance of Independent Journalists, Indonesia

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VII. Recommendations for Action

INDONESIA Litigation Encourage the Police, Attorney General's office, and the Courts to establish a Memorandum of Understanding stating that all media cases must come first to the Press Council for consideration before further process in the court (i.e. instead of using the Penal Code); Support by Press Council, AJI, PWI (the Indonesian Journalist's Association), and IJTI (The Association of Indonesian Television Journalists) Press council send a letter to the Supreme Court asking for Press Council members to be recognized as mediators in all media cases (see MA Regulation No 2/2003) Minimize the excesses of current Laws and some Bills which threaten Press Freedom and Freedom of Expression - such as the KUHP (Penal Code), ITE (Law on Information and Electronic Transactions) and KIP (Law on Transparency of Public Information) - by filing Judicial Reviews before the Constitution Court Strengthen networks of lawyers at the national, regional, and district levels and provide lawyers to handle media cases together with support by media companies

Non-Litigation Key Goals Abolish criminal defamation Reform civil defamation

Short term Encourage wider participation and cooperation on freedom of

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expression issues, for example involving KOMNAS HAM (The National Commission on Human Rights) and NGO HAM (NonGovernmental Organization for Human Rights) Support drafting of the regulation to implement the Press Law (hukum acara) to encourage lawyers and judges to refer to the Press Law in defamation cases

Host a large international conference as part of the above Frame/present defamation reform as a basic democracy issue which is not just for journalists but to serve the public's right to know Develop clear set of campaign objectives and present them to potential supporters Undertake forward-planning and notify supporters in timely fashion of calls for action

Medium term Promote ratification of the Optional Protocol to ICCPR (International Covenant on Civil and Political Rights), so that citizens can directly file a communication with the UN Human Rights Committee Insert an exceptional provision in Book I of the Penal Code Bill stating that no media worker can be subjected to criminal sanction for defamation for statements made in the course of their professional work

Think actively and creatively about who might become a supporter (linked to the particular issue at hand) Sector Journalists Goals Capacity building to increase professionalism Raise awareness about defamation and need for reform Strategy Training Regular (e)mailing of short materials regarding defamation, including tips on how to avoid problems and what to do if charged/harassed Host discussion groups on importance of law reform Set up a website on this issue Media Organizations Foster public debate about defamation, press law Build support within the public on defamation cases Publish/broadcast reports about specific cases Create debate in media if government tries to amend the Press Law Improve welfare of journalists and quality of reporting
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Long term8 Support amendment of the 1945 Constitution by adding a provision on Press Freedom into the chapter on Human Rights (Article 28) Amend the Press Law, No.40/1999, as long as the amendment the 1945 Constitution has been achieved

Cross-cutting Issues/Strategies Create a network of core groups to share information and to coordinate both urgent and long-term actions Host regular meetings of the core group Develop a broader network of supporters who should be kept informed of relevant developments and called upon at strategic points to support campaign
8 There was a difference of opinion on this point. The Press Council supports initial focus on amending the Constitution, whereas AJI and other CSO representatives recommended continuing with a draft amendment of the Press Law, in case this law comes up for review in Parliament in the near future.

Send out targeted material on defamation (updates on developments at the local, national and regional level) Host press conferences for significant events Place Op Eds and other articles in the media Place PSAs in the media

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Business

Identify allies who support campaign goals Provide arguments why business should support the campaign Ally with business sector actors to lobby government, parliament

Approach selected businesses, business groups on the issue of defamation Follow up with concrete meetings to discuss issues and action they might take Have clear recommendations for action by them Have supporters endorse campaign Seek endorsement of campaign objectives Seek commitment for limited, periodic support activities Set up listserv/email distribution list for endorsers with regular (e.g. monthly and for major events) updates (also for wider network of supporters who have endorsed the campaign) Use listserv as a mobilization tool Workshop to discuss issues and plans Work with supporters on possible legislation Develop information pack for distribution to all legislators Pre-election lobbying: seek support for key law reform goals Link to 'rotten politician' campaign and support for 'good' (i.e. supportive) politicians

Legal community (judges, police, prosecutors, lawyers)

Raise awareness of press law and press freedom issues Get support from legal community (e.g. help with drafting legislation, advocacy for law reform) Use media to highlight positive action taken by the legal community (e.g. public interest cases) Promote progressive use of existing laws Support and work with legal community to provide legal assistance to media

Use legal support groups to host workshops targeting judges, prosecutors, lawyers, police Develop a network of lawyers to handle defamation cases and help build their capacity to do so Support intensive training for police, prosecutors and judges on the Press Law and press freedom issues

Supporting groups (NGOs/CBO/ religious groups)

Raise awareness of press freedom issues Build the network for information sharing Encourage action at strategic points in campaigns (e.g. joint statements, demonstrations, etc.)

International Community

Get them engaged Develop links with them that fit with their concerns/focus Encourage countries in the region which have not yet ratified the International Covenant on human rights to do so

Develop targeted materials to distribute to them Request support for specific issues

Legislators/ political parties

Identify 'friendly' legislators and engage them Help them to introduce alternative legislation / support CSO drafts Raise awareness of issues with relevant commissions (including both supporters and detractors)

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SOUTHEAST ASIA REGION Short term Review the case of Tesco Thailand as a test case for regional response (petition, protest); Lawyers Defense Network for Media (SEAPA) to prepare fact sheet Housekeeping for existing regional networks (IFJ, SEAPA)

List of Participants
International Seminar on Defamation: Building a Regional Advocacy Platform, Yogyakarta, 9 - 10 May 2008 Indonesia 1. Name Org. Phone E-mail 2. Name Org. Phone E-mail 3. Name Org. Phone E-mail 4. Name Org. Phone E-mail 5. Name Org. Phone E-mail 6. Name Org. Phone E-mail 9. Name Org. Phone E-mail 10. Name Org. Phone E-mail 11. Name Org. Phone E-mail 12. Name Org. Phone E-mail 13. Name Org. Phone E-mail 14. Name Org. Phone E-mail 15. Name Org. Phone E-mail 16. Name Org. Phone E-mail : Andreas Pareira : Komisi I DPR-RI : 62 8156190694 :: Bambang Harymurti : Press Council of Indonesia : 62 811130197 : bambang@tempo.co.id : Christiana Chelsia : Dewan Pers : 62 81318611800 : christiana_chelsia@yahoo.com : Eko Maryadi : AJI Indonesia : 62 811852857 : itemic@gmail.com : Faried Cahyono : AJI : 62 8156717842 : mfariedc@yahoo.com : Gigra : SWA : 62 8122718365 : mgigra@yahoo.com : Hendrayana : LBH Pers : 62 81310062794 : lbhpers@yahoo.com : Heru Hendratmoko : AJI Indonesia : 62 811851083 : heru68h@yahoo.com

Medium term Survey among journalists for feedback on press councils/self-regulation More systematically link journalists' associations and publishers regionally Support debate on scope of press councils (possibly term it Journalism Council) Develop a model Press/Journalism Council for the region File select amicus briefs in upcoming cases in the region (including through Lawyers Defense Network for Media) Translate important cases on defamation from countries within the region Explore idea of online petitions that journalists in the region can endorse - to overcome problem that journalists do not want to be seen as activists

: A. Bayuaji : LOS - DIY : 62 274 552245 :: Astutik : LBH Yogyakarta : 62 8156852229 :: Aidul Fitriciada Azhari : UMS Solo : 62 8568918535 :: Afirtha : Jogja TV : 62 81804132830 :: Arif : Jogja TV : 62 8122731189 :: Agni : Kompas Jogja : 62 8155124177 :: Amilia : AJI Solo : 62 8157633985 : djliliputau@yahoo.com : Ammy Pujiastuti : POLDA D.I.Y : 62 81578174582 :-

Long term Integrate regional work on law, advocacy Law review for each country to input into development of country action plan Tap into Parliamentary groups to strengthen political will (for example, IPU and within ASEAN) Develop a matrix of what each international group can offer and

7. Name Org. Phone E-mail 8. Name Org. Phone E-mail

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17. Name Org. Phone E-mail 18. Name Org. Phone E-mail 19. Name Org. Phone E-mail 20. Name Org. Phone E-mail 21. Name Org. Phone E-mail 22. Name Org. Phone E-mail 23. Name Org. Phone E-mail 24. Name Org. Phone E-mail 25. Name Org. Phone E-mail 26. Name Org. Phone E-mail 27. Name Org. Phone E-mail

: H. Sukidjo, S.H. : Pangdam Tinggi Yogyakarta : 62 81336708912 :: Imam Wahyudi : IJTI : 62 816900978 : imam_wahyudi@atv.co.id; : Joko Sutarso : UMS : 62 81329560050 : jokosutarso@yahoo.com : Kwin Hermiyarto : Dasya Bhumi : 62 8175416452 : ck_totok@yahoo.com : Leo Batubara : Press Council : 62 8161830354 : leo_batubara@yahoo.com : Lukas Ispandriarno : Fisip UAJY : 62 8156890378 : lukas_ispandriarno@yahoo.com : Machmud N.A. : AJI Yogyakarta : 62 8156809043 :: Masduki : UII : 62 8151915072 : masduki@yahoo.com : Muh Nur : LBH Semarang : 62 81326436437 : mn_lbhsmg@yahoo.com : Mudzakkir : Law Faculty, UII Yogyakarta : 62 8122798440 : mudzakkir@lycos.com : Mujib : AJI : 62 81328782443 : ajib_thontowi@yahoo.com

28. Name Org. Phone E-mail 29. Name Org. Phone E-mail 30. Name Org. Phone E-mail 31. Name Org. Phone E-mail 32. Name Org. Phone E-mail 33. Name Org. Phone E-mail 34. Name Org. Phone E-mail 35. Name Org. Phone E-mail 36. Name Org. Phone E-mail 37. Name Org. Phone E-mail 38. Name Org. Phone E-mail

: Novi Kurnia : UGM/ PKMBP : 62 815 10872843 : noniknovi@yahoo.com : Noor Harish : DPRD DIY : 62 274 6529026 :: Puji Rianto : PKMBP : 62 8562918163 :: PD Prabandan : Tempo : 62 818824510 :: Rebecca Henschke : Asia Calling KBR 68H : 62 81381098551 :: Rahmat Arifin : KPID/ PJI : 62 81328465593 : cah_kotagede@yahoo.com : Refly Harun : Indepedent : 62 81314871410 : reflyharun@yahoo.com : Sofia Yasmin : LBH APIK Jogja : 62 8155506136 : sofisanto2@yahoo.com : R. Kristiawan : Tifa Foundation : 62 8158318543 : kristiawan@tifafoundation.org : Rustamadji : Forum LSM : 62 812279844 :: R. Toto Sugiharto : AJI Yogya : 62 85868037018 :-

39. Name Org. Phone E-mail 40. Name Org. Phone E-mail Thailand 1. Name Org. Phone E-mail 2. Name Org. Phone E-mail Malaysia 1. Name Org.

: Shinta Ardhany : AJI Semarang : 62 81325858237 : ardhan16@yahoo.com : Supriyadi Widodo Eddyono : ELSAM : 62 818120175 : supi_ojo@yahoo.com

International Organization 1. Name : Andrew Thornley Org. : USAID Democratic Reform Support Program Phone : 62 81311078135 E-mail : athornley@rti.org 2. Name Org. : Aidan White : International Federation of Journalists Phone : 32 478258669 E-mail : aidan.white@ifj.org : Jim Nolan : IFJ Asia Pacific : 0414 782199 : jimnolan@oze-mail.com.au : Tessa Piper : Media Development Loan Fund : 62 818777203 : tessa@minihub.org : Toby Mendel : ARTICLE 19 : 1 902 4313688 : A19law@hfx.eastlink.ca

: Subhatra Bhumiprabmas : The Nation : 66 813760360 : subhatra@nationgroup.com : Sinfah Tunsarawuth : Media Lawyer : 66 816143296 : sinfah@hotmail.com

3. Name Org. Phone E-mail 4. Name Org. Phone E-mail 5. Name Org. Phone E-mail 6. Name Org.

: Gayathry Venkiteswaran : Centre for Independent Journalism Phone : 60 16 3123478 E-mail : gayathry@cijmalaysia.org

Cambodia 1. Name Org. Phone E-mail East Timor 1. Name Org. Phone E-mail

: Um Sarin : CAPJ : 855 12 997054 : umsarin59@yahoo.com

: Serenade Woo : International Federation of Journalists Phone : 852 31459145; 852 91459145 E-mail : ifjchina@ifj-asia.org; serenadewoo@yahoo.com.hk : Joya Donnelly : Embassy of Canada : 62 81511201011 : joya.donnelly@international.gc.ca

: Fernanda Borges : MP- East Timor : 670 7330744 : pun69tibar@gmail.com

7. Name Org. Phone E-mail

Philippines 1. Name : Joel Butuyan Org. : Center Law Phone : 63 9175229613 E-mail : jbutuyan@roguebutuyan.com 2. Name Org. : Rowena C Paraan : National Union of Journalists of the Philippines Phone : 632 4117768; 09104950095 E-mail : rcparaan@gmail.com; nujphil@gmail.com

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