Revenge Porn as a Violation of Privacy Rights: Legal Review and Implications on Moral Degradation in the Digital World of Indonesia
Aninda Emilia Helena1, Jihan Khansa Madina2, Rifa Elvaretta Khansa3Background
The rapid advancement of technology, easy access to the internet, and the widespread use of social media have brought significant impacts to modern life. Technology has provided substantial benefits, such as easy communication, rapid access to information, and progress in various fields. However, behind these advantages, technology has also opened the door to the increasingly prevalent online crimes. The internet, which is easily accessible to people from diverse backgrounds, has both positive and negative effects on society. Besides the mentioned positive impacts that can be found in everyday life, such as economic activities, educational endeavors, and others, there are also numerous negative consequences.
One of the crimes caused by the internet and carried out in the virtual world is known as “cybercrime”. Cybercrime involves illegal activities conducted using the internet, leveraging advanced technology, computers, and telecommunications, either to gain profit or to harm others4. Cybercrime is highly likely to target anyone from various backgrounds, considering the unrestricted access to the internet, which can make ordinary internet users potential victims of cybercrime. Cybercrime often involves the misuse of personal data, illegal business transactions, and defamation. Cybercriminals frequently use these activities to achieve personal satisfaction, and many also make cybercrime their primary tool for gaining personal profit or benefiting specific groups at the expense of others.5
1 M, Nurbaiti. 2020. “Degradasi Moral Sebagai Dampak Kejahatan Siber Pada Generasi Millenial di Indonesia”. Vol 7. No. 1
2 N, Widya. 2018. “Kejahatan Cyber Dalam Perkembangan Teknologi Informasi Berbasis Komputer”. Vol. 5. No. 2.
3 Edy Junaedi Karnasudirja. 1993. “Jurisprudensi Kejahatan Komputer, (Jakarta: Tanjung Agung, 1993), 3
4 Association for Progressive Communications (APC), “Online gender-based violence: A submission from the Association for Progressive Communications to the United Nations Special Rapporteur on violence against women, its causes and consequences”, Artikel, 2017, hlm. 3.
5 Komnas Perempuan, “Kekerasan terhadap Perempuan di Ranah Publik dan Negara: Minimnya Pelindungan dan Pemulihan”, Catatan Tahunan, 2023, hlm. 4.
Cybercrime first occurred in the United States in the 1970s, targeting the academic records of students at Brooklyn College, New York. One of the employees at the campus misused a computer for personal gain by manipulating the students' academic data for personal interests.6 The issue of cybercrime has long been a subject of debate among law enforcement officials, both at the international level and within Indonesia itself. One prominent and challenging problem is that cybercrime knows no geographical boundaries, as the incidents occur on the internet or in the virtual world. In Indonesia, cybercrime has been considered a serious concern as it can affect anyone. Therefore, the government has formulated legislation to regulate everything related to electronics and prevent cybercrime, known as the Electronic Information and Transactions Law (ITE Law).
With the existence of this regulation, it paves the way for law enforcement to take action and prosecute perpetrators of information technology crimes. Nevertheless, this policy is considered not entirely capable of addressing all the issues related to cybercrime, such as addressing Online Gender-Based Violence (OGBV).
Online Gender-Based Violence (OGBV) is gender-based violence facilitated by technology with the purpose of demeaning the victim. The Association of Progressive Communication (APC) defines OGBV as a form of gender-based violence that is partially or entirely conducted and exacerbated through information and communication technologies such as mobile phones, the internet, social media platforms, and email.7 OGBV differs from other cybercrimes because in this context, victims are attacked based on their gender and sexual identity. OGBV can cause psychological harm, making the victims live in fear, anxiety, and even depression. Additionally, victims may experience social isolation, leading them to withdraw from their surroundings and restrict their freedom of movement both online and offline.
In reality, in Indonesia, the 2023 Annual Report (Catahu) of the National Commission on Violence Against Women (Komnas Perempuan) revealed that throughout the year 2022, there were still numerous reports related to OGBV. Within the OGBV category, reports of sexual violence recorded the highest number of cases, with a total of 821 cyber cases in the personal realm, predominantly involving sexual violence, with the majority perpetrated by ex-boyfriends
6 Puteri Hikmawati. 2021. “Pengaturan Kekerasan Berbasis Gender Online: Perspektif Ius Constitutum dan Ius Constituendum.” Jurnal Negara Hukum, Vol. 12, No. 1 : 69. 7 Mahasiswa Fakultas Hukum Universitas Padjajaran dengan NPM 110110210075(549 cases) and current boyfriends (230 cases). Meanwhile, in the public realm, the highest number of cyber cases was committed by "social media friends," amounting to 383 cases.8
In the resolution of OGBV cases, the Electronic Information and Transactions Law (UU ITE), which should provide protection, instead gives rise to various issues, as OGBV involves attacks on sexuality and gender identity. However, the ITE Law does not guarantee the safety and protection of the victims.9 The lack of a specific legal framework regarding OGBV is also evident in other countries, for example, in the United Kingdom, where there is currently no specific regulation concerning online violence against women. Nevertheless, the UK has several rules related to the prevention and handling of OGBV, including victim protection. Currently, the UK is in the process of developing a comprehensive legal framework for OGBV known as the Online Safety Bill; a draft law that regulates internet user safety, including obligations for service providers.10 Furthermore, in the Asia-Pacific region, in countries such as India, Pakistan, the Philippines, and South Korea, they have focused on regulating prohibitions on certain behaviors. However, the responses made only use a general lens for cyber violence, without specifically addressing issues related to OGBV.11
Revenge porn, is one form of OGBV. The prevalence of revenge porn in Indonesia is increasingly concerning in the current digital era. Revenge porn occurs when someone unlawfully shares, distributes, or publishes sexually explicit content obtained privately without the consent or approval of the individuals involved.12 In this context, Article 28G of the 1945 Constitution Paragraph (1) which regulates the right to personal protection and security becomes relevant. This article states that "every person has the right to the protection of their personal selves, families, honor, dignity, and possessions under their control, as well as the right to feel safe and protected from threats and fears to exercise or not to exercise their fundamental rights."
Revenge Porn violates these rights by disseminating private sexual content without permission, which can threaten and harm individuals affected by it. Such content often consists of intimate photos or videos intended to be part of a private relationship and kept confidential by the
8 Mahasiswa Fakultas Hukum Universitas Padjajaran dengan NPM 110110210177
9 Mahasiswa Fakultas Hukum Universitas Padjajaran dengan NPM 110110210090
10 Christianto, Hwian. 2017 “Revenge porn Sebagai Kejahatan Kesusilaan Khusus: Perspektif Sobural”
Jurnal VeJ 3, No. 2 : 15.
11 Undang-Undang No.19 Tahun 2016 tentang Perubahan Atas Undang-Undang Nomor 11 Tahun 2008
Tentang Informasi Dan Transaksi Elektronik.
12 United Kingdom. 2021. “Tackling Violence Against Women and Girls The Safety Women and Girls Across The Country is Our Priority,” 56.
involved partners. Revenge porn falls under offenses related to decency regulated by the Indonesian Criminal Code (KUHP), specifically Article 281, Article 282, and Article 533. Additionally, it can be seen under Article 29 of the Pornography Law (UU Pornografi), as well as Article 27 paragraph (1) and Article 45 paragraph (1) of the Information and Electronic Transaction Law (UU ITE).13 However, these three laws do not explicitly regulate the sanctions for revenge porn perpetrators, so in 2022, the TPKS Law was enacted, which is the latest and more comprehensive law in dealing with KSBG. However, in reality, the high number of revenge porn cases indicates a lack of understanding among the authorities in implementing this TPKS Law.
Based on the definitions previously presented and the existence of several issues to be discussed in this legal review, the authors formulates several problem identifications as follows:
Problem Identification
1. How is the law enforcement in handling revenge porn as a violation of privacy rights based on positive law in Indonesia, and what are the challenges in enforcing the law against revenge porn cases in the digital world of Indonesia?
Revenge Porn can be defined as the broadcasting of intimate images or videos made for personal gain to the public via the internet without the consent of the individual featured in the content. It usually occurs when a relationship ends badly with the intention of hurting, humiliating and harassing one of the parties in the relationship. 14 Sometimes, someone uses such photos or videos to blackmail or threaten the victim to give them money or have sexual intercourse. In revenge porn cases, the victim may experience physical violence or non-physical violence. Physical violence in this context can be in the form of verbal violence aimed at threatening the victim to dominate so that the victim is forced to comply with the wishes of the perpetrator. 15 Every individual has the right to maintain privacy regarding their body and personal life, so this phenomenon
13Maidina Rahmawati Nabilla Saputri. “Jauh Panggang dari Api : Menilik Kerangka Hukum KBGO di Indonesia,” SAFEnet, July 25, 2023
Jauh-Panggang-dari-Api_Menilik-Kerangka-Hukum-KBGO-di-Indonesia.pdf (awaskbgo.id)
14 Rahimah Ismah Salimah. 2023. “Perlindungan Korban Revenge Porn Dalam Hukum Positif Indonesia.” Jurnal Mahasiswa Indonesia 1:1, 1-15
15 Ni Putu Winny Arisanti, dkk. “Pertanggungjawaban Pidana Pelaku Revenge Porn (Pornografi Balas Dendam) Menurut Hukum Positif Indonesia.” Jurnal Kertha Desa, Vol.9, No.5 : 12.
of revenge porn clearly violates one's right to privacy. Revenge porn violates privacy rights because it takes private content and uploads it or shares it publicly without the victim's permission. This can cause the victim to experience stress, depression, anxiety, and other mental disorders. Furthermore, the victims may face social problems due to the dissemination of such content. In Indonesia, there are several laws and regulations to deal with this phenomenon.
Initially, regulations regarding Online Gender-Based Violence (OGBV), specifically Revenge Porn, were governed by several laws such as the Criminal Code (KUHP), Law Number 44 of 2008 on Pornography, and Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 on Electronic Information and Transactions. However, in practice, the provisions of these three positive laws have led to various issues in handling revenge porn in Indonesia. The provisions in the ITE Law often create legal uncertainties, inconsistencies in law enforcement, and overlap with provisions in the Criminal Code. Some even use the ITE Law as a tool to criminalize victims who should be legally protected. In cases like this, third parties often steal images or videos to misuse and disseminate them. Consequently, there is a possibility that individuals depicted in pornographic images or videos may also be involved in legal issues due to the absence of clear boundaries regarding the element of "making accessible" in Article 27 paragraph (1) of the ITE Law. This is further supported by the explanation in Article 4 paragraph (1) and Article 6 of the Pornography Law, which uses the exception phrase "not for oneself and personal interests." Such exceptions have caused ambiguity and lack of legal certainty regarding actions falling under "personal interests," leading to subjectivity in the judge's evaluation during law enforcement.16 This can become a problem because these regulations have not been able to protect and provide justice for the victims. Additionally, other issues arise in processing revenge porn cases, such as weak legal procedures, including the provision of evidence, jurisdictional problems due to revenge porn being committed in the digital world and differing from conventional crimes, making it challenging to identify and enforce laws across regions. Furthermore, there is a limitation in the expertise and understanding of revenge porn issues, technical aspects of the court proceedings that sometimes demean or 16 Prima
Yustitia Nurul Islami. “Digitalisasi Kekerasan Perempuan : Studi Reproduksi PelecehanMelalui Media Sosial,” Saskara: Indonesia Journal of Society Studies, Vol 1, No. 2 : 14
even blame the victim, and a lack of knowledge among law enforcement officials regarding revenge porn. The legal policy governing OGBV in the ITE Law also often complicates law enforcement's implementation due to multiple interpretations arising from terms like "violating morality." This undoubtedly leads to injustice and legal uncertainty within society, especially for the victims. Therefore, a specific regulation with a gender-sensitive perspective and protection for the victims is needed to address cases of sexual violence in Indonesia.17
With the increasing prevalence of various forms of sexual violence that can affect Indonesian society, the government has issued new legislation that provides more detailed regulations on Sexual Violence Offenses (UU TPKS) in Law Number 12 of 2022 concerning Sexual Violence Offenses. In Article 4 of Law Number 12 of 2022, paragraph (1) explains various forms of sexual violence, including non-physical sexual harassment. As we have known previously, the phenomenon of Revenge Porn itself constitutes an act of sexual violence that attacks the dignity and reputation of the victim by disseminating private indecent photos or videos of the victim in the digital world. This phenomenon is often motivated by hatred or resentment felt by the perpetrator towards the victim, prompting the perpetrator to disseminate the victim's private photos and videos in the digital world.
Article 5 of the TPKS Law elaborates that anyone who engages in non-physical sexual acts with the intention of demeaning the dignity and reputation of another person can be prosecuted for non-physical sexual harassment, with a maximum imprisonment of nine months and/or a fine of up to ten million rupiah. Furthermore, Article 14 of the TPKS Law regulates electronic-based sexual violence, explaining that anyone who records and/or takes pictures without the consent of the person involved and/or disseminates such photos or videos can be prosecuted for committing electronic-based sexual violence, with a maximum imprisonment of four years and/or a fine of up to two hundred million rupiah.
17Faizah Azza Fitrahul dan Muhammad Rifqi Hariri. 2022. “Pelindungan Hukum terhadap Korban Revenge Porn sebagai Bentuk Kekerasan Berbasis Gender Online Ditinjau dari Undang-Undang Nomor 12 Tahun 2022 tentang Tindak Pidana Kekerasan Seksual.” Rewang Rencang : Jurnal Hukum Lex Generalis. Vol.3. No.7, 1-22In essence, the legislation that regulates the phenomenon of revenge porn is already quite clear with the TPKS Law. With this legislation in place, it becomes the primary and prioritized specific rule to address Sexual Violence Offenses18. Although the TPKS Law already encompasses all aspects related to sexual violence offenses, there are still challenges in enforcing this law. The challenges in law enforcement can stem from various factors, as described by Soerjono Soekanto, including:19 (1) legal factors; (2) law enforcement factors; (3) resources and facilities factors; (4) societal factors; and (5) cultural factors. These five factors can come from both internal and external influences within society, ultimately leading to weaknesses in law enforcement in Indonesia.
In the context of enforcing the law against sexual violence offenses, the introduction of the TPKS Law can be considered as progress in the Indonesian legal system. However, it is unfortunate that there are still some shortcomings in this law. Article 30 of the TPKS Law addresses two forms of recovery for victims of sexual violence, namely restitution and counseling services. Nevertheless, these two forms of recovery may not be sufficient, as the process of recovery for victims should also include the removal of disseminated content. Furthermore, there are other regulations that currently address revenge porn, which contradict the TPKS Law. For instance, Article 27 paragraph (1) of the Electronic Information and Transactions Law (ITE Law) prohibits the distribution, transmission, and access to content that violates decency. This article has the potential to criminalize the victims. Unfortunately, there is no bridging article in the TPKS Law to ensure that revenge porn cases must be processed in accordance with the TPKS Law and not under Article 27 paragraph (1) of the ITE Law. Consequently, the protection for the victims becomes vulnerable and less optimal.
Moreover, in handling revenge porn cases, there are still many Law Enforcement Officers who believe that if the victim and the perpetrator know each other, then the sexual violence committed is consensual, and the investigation can be halted. This perspective is erroneous and must be corrected immediately, as sexual violence can be committed by anyone regardless of the relationship between the perpetrator and the
18 N, Eko. 2022. “Risalah Tantangan Penegakan Hukum Tindak Pidana Kekerasan Seksual Pasca
Lahirnya Undang-Undang Nomor 12 Tahun 2022.” Jurnal Pembangunan Hukum Indonesia Vol. 4 No. 2 : 170-196
19 Soerjono Soekanto. “Faktor-faktor yang Mempengaruhi Penegakan Hukum,” (Rajawali Pers, Jakarta, 2007), 11-67
victim. Another misjudged perspective is often found in society, where victims, who should be protected, are instead stigmatized and subjected to social sanctions. One of the reasons is the negative stigma from society when someone engages in premarital sex, causing some victims to choose silence out of fear that their close ones, family, and even the community will find out, fearing further blame and ostracization. Additionally, some victims do not report revenge porn cases to the legal authorities because they are afraid of being prosecuted themselves. Looking at the case of Baiq Nuril, for instance, she provided digital evidence of harassment she experienced but ended up being prosecuted under the ITE Law. According to data from the Cyber Civil Rights Initiative, 82% of revenge porn victims experience social relationship damage, and 39% experience career destruction due to societal stigma. Such societal stigma and the actions of law enforcement that tend to blame the victims lead to many victims being afraid to report perpetrators to the authorities.20 Based on data from the National Commission on Violence Against Women (Komnas Perempuan), during the pandemic in 2020, revenge porn cases increased to 510, compared to 126 cases in 2019. In 2021, there were 489 cases, and in 2022, the number stood at 440 cases.21 Furthermore, only 2% of all reported revenge porn cases are pursued until the trial stage due to not being further processed by the police.22
The data from the past 3 years shows that the authorities' response in handling revenge porn cases is still lacking in firmness.
With many victims afraid to report perpetrators, it emboldens the perpetrators to continue committing sexual violence. The lack of reports results in a low level of law enforcement and prosecution against revenge porn perpetrators, ultimately creating an environment that allows sexual violence to persist and have negative impacts on society. This continues to be a challenge in improving law enforcement in Indonesia, especially in the phenomenon of revenge porn.
20 I. I. P. Perangin-angin, R. Rahayu, and N. Dwiwarno. 2019. "KEWAJIBAN DAN TANGGUNGJAWAB
NEGARA MEMBERIKAN PERLINDUNGAN HUKUM TERHADAP PEREMPUAN KORBAN REVENGE PORN DI INDONESIA," Diponegoro Law Journal, vol. 8, no. 1 : 457-483
21Zulfa Fadhlika. “Kejahatan Revenge Porn, Bagaimana Jerat Hukum bagi Pelaku?” HeyLaw.id, July 29,
2023. https://heylaw.id/blog/kejahatan-revenge-porn
22 Willihardi, Anneke Putri. 2020. “ANALISIS YURIDIS PERLINDUNGAN HUKUM BAGI KORBAN
PENYEBARLUASAN KONTEN PORNOGRAFI DENGAN MOTIF BALAS DENDAM (REVENGE PORN)
DI INDONESIA.” Other thesis, UPN "Veteran" Jawa Timur.
2. What is an effective form of recovery for victims of revenge porn to overcome the psychological and social impacts of non-consensual publication of personal sexual content in Indonesia?
Revenge porn is very detrimental to victims because the intimidation perpetrated by the perpetrator has resulted in many victims experiencing psychological and social disorders. In this case, legal efforts are not enough to help the victim recover optimally, because furthermore the victim experiences psychological disorders or severe stress due to the dissemination of videos without consent that have been carried out by the perpetrator which resulted in the victim losing her identity, becoming the subject of public gossip, especially if the video goes viral on social media, this is very detrimental to the victim in the psychological and social spheres. Therefore, the victim is entitled to assistance from a psychologist or psychiatrist to restore her psychological state. Most victims of Revenge Porn experience depression, anxiety disorders, and prolonged trauma that affects the social sphere of the victim, namely, the victim withdraws from their environment, the victim can lose their job, the victim does not dare to leave the house because they think everyone sees them with a contemptuous look. Of course this is an urgency, how the victim in this case suffered enormous losses both material and immaterial.
However, the law must still be present in providing a deterrent effect for the perpetrator and restoring the victim's social situation. by providing legal remedies, namely contained in Articles 30-38 of the TPKS Law regulating recovery and compensation (restitution).
Article 30 paragraph (1) states that victims are entitled to restitution and recovery services. Then in Article 30 paragraph (2), it states the types of restitution, namely:
a. compensation for loss of wealth or income;
b. compensation for damages incurred as a result of suffering directly related to the crime of sexual violence;
c. reimbursement of medical and/or psychological treatment costs; and/or
d. compensation for other losses suffered by the Victim as a result of the Crime of Sexual Violence.
Regarding restitution, it is also stipulated that the Investigator can confiscate the property of the perpetrator as collateral for restitution with permission from the local district court. In helping victims know their rights and obligations under the applicable law, victims have the right to legal assistance because not all victims understand and understand the law. Victims should get an effective form in order to recover victims of revenge porn, because the enforcement that has not been firmly resulted, Revenge Porn cases in Indonesia are rampant and become a moral concern of this nation. An effective form of recovery for victims of revenge porn that often occurs in Indonesia on the psychological side can then start with the victim's closest family and friends. By getting the right support from the people closest to the victim, it certainly makes the victim not feel alone in experiencing this problem. Victims who experience the crime of revenge porn can start telling stories and asking for support or advice to family, friends, or other trusted close people. Victims of revenge porn can also seek help from professional practitioners in order to get reliable and more qualified help. Indeed, psychological trauma is not easy to get rid of and requires help from the closest people and professional practitioners in order to help reduce the burden felt by victims.23
Summary
1. Revenge Porn is the dissemination of intimate images or videos without the consent of the individuals featured, often occurring in the aftermath of troubled relationships with the intent to harm, humiliate, or harass one party. This harmful practice can also be leveraged for blackmail or threats. It blatantly violates an individual's right to privacy, causing severe emotional distress, including stress, depression, and anxiety. In Indonesia, the legal landscape initially struggled to address this issue, with laws like the Criminal Code, Pornography Law, and Electronic Information and Transactions Law creating ambiguity and even criminalizing victims in some cases. Weak legal procedures, jurisdictional challenges, and a lack of expertise among law enforcement further hindered justice for victims. However, recent legislation, such as Law Number 12 of 2022 concerning Sexual Violence Offenses, offers clearer regulations and penalties for revenge porn perpetrators. Yet, challenges persist, including societal stigmatization of victims and
23 Ani, P. (2018). “Strategi Penyelesaian
Tindak Kekerasan Seksual Terhadap Perempuan dan Anak Melalui RUU Kekerasan Seksual”. Diponogero Law Journal. Vol. 47. No. 2inadequate law enforcement, resulting in underreported cases and ongoing sexual violence concerns.
2. Revenge porn inflicts severe harm on its victims, resulting in psychological and social distress. Legal measures alone often fall short in aiding victims, as the psychological trauma caused by non-consensual video dissemination can lead to the loss of identity and public humiliation, especially when the content goes viral on social media. Victims commonly suffer from depression, anxiety disorders, and lasting trauma, leading to social isolation, job loss, and fear of leaving their homes, resulting in significant material and immaterial losses. Nevertheless, the law plays a crucial role in deterring perpetrators and restoring victims' social situations through legal remedies outlined in Articles 30-38 of the TPKS Law, covering restitution and recovery. Victims are entitled to various forms of compensation, including financial restitution, medical or psychological treatment costs, and compensation for related losses. The law also empowers investigators to confiscate the perpetrator's assets as collateral for restitution. However, given that not all victims understand their rights and the legal process, providing legal assistance is essential. Effective recovery for revenge porn victims in Indonesia involves a multifaceted approach, beginning with support from family and friends, who can offer emotional assistance. Additionally, seeking help from professional practitioners is crucial, as overcoming psychological trauma requires reliable and qualified support, addressing the pressing issue of rampant revenge porn cases in the country.
Advice
Addressing the issue of revenge porn in Indonesia, as in any country, requires a multi-faceted approach involving legal, social, and educational measures. Here is some advice on how to tackle this problem. The government should review and update existing laws to specifically address revenge porn and online harassment, ensuring that they are comprehensive and provide adequate protection for victims. Furthermore, they also should enforce stricter penalties for those found guilty of distributing revenge porn to act as a deterrent. Moving on to the next step, we should raise awareness how revenge porn can be so damaging to the victims. Launch nationwide campaigns to educate the public about the consequences of revenge porn, emphasizing that it is illegal and unethical. To those who has suffered from revenge porn, we can establish dedicated
hotlines and support centers where victims can seek help, counseling, and legal advice. Also provide legal aid for victims who wish to pursue legal action against their perpetrators. From the digital perspective, we should strengthen data protection laws to ensure that personal information and images are not easily accessed or shared without consent. It's crucial to approach the issue of revenge porn with a combination of legal measures, education, and support to protect victims and prevent future incidents. A comprehensive strategy involving government, civil society, and technology companies can be effective in combating this harmful practice.