The Courage of One's Convictions & Anonymity...

So much for only the one post in February!

I recently received an email from a dear friend and the unrelenting anonymous cyberbullying and cyberstalking that she is encountering on an hourly basis twenty-four hours per day. Why is this happening? For no other reason than holding an opinion different to those of the cyberbullies and being willing to share it with a view to ensuring that people are not only well-informed but to ensure that they are properly informed too.

The reality is that I cannot go into a whole lot of detail as the matter is subject to some real sensitive information. But, in a general sense I can get into the detail. In its most simple form, this is a case of one person blogging, social networking, and working under her real name and a host of pseudonyms and other anonymous posters attacking her on every front. In fact, it really is cyberstalking, wherever she goes these individuals are sure to follow.

And, this is the point of the title of this post. My personal opinion is that if you have the courage of your convictions and you truly and honestly believe in what you are standing for then you should feel the need for this to happen under your real name. If the pen-person-ship is ours then claim it as so.

The belief that you can remain anonymous and untrackable is a fallacy, particularly when you are making outlandish and absurd claims about government to government conspiracies, double-agents, and the sacrifice of insignificant individuals (in the sense that they are so unimportant in the big scheme of things that they warrant being thrust front and centre in this global conspiracy) to the alter of global politics.

Let's face it, when push comes to shove, governments have a lot of time and money to throw at uncovering who the anonymous and pseudonym-covered posters are. Unfortunately, the perfect laws are not in place in Australia to deter cyberstalkers and cyberbullies, but we will get there. Nevertheless, the reality is that defaming someone is defaming them and there are laws in place that can be used to see that it stops and that the perpetrators make their reparations to those that they injure.

I blog under my own name not because I want to be some sort of hero or because I want to throw caution to the wind and hell be damned, rather I blog under my own name because I believe in the things, the ideas, the views, and the issues that I talk about. I have the courage of my convictions and people don't doubt my passions or my beliefs (well, not all that often there are always cynics out there somewhere). If I have something to say about someone then I say it. It is that simple.

I am not going to spend 100s or 1000s of hours in compiling data to release a "Confidential - Not for Publication" report under a pseudonym and then publish it as widely as possible. Clearly, the report is neither confidential or not for publication, rather it is for public viewing and dissemination.

The truth is that if I believe in what I have researched and what is contained in the report is fact and beyond reproach then why not put my name to it. To suggest that the state will enter into a conspiracy with other states to silence me is delusional paranoia. Some more truth is that where the report attacks and defames an individual then there hardly seems the need for the paranoia. It is not as if the report is about the Head of State, is it?

To be clear, I do not have a problem with anonymous blogging or writing or doing these things under a pen name or the like. I do have a problem if one is trying to use anonymity and pseudonyms as a cover to attack, bully and harass people because they have a different view to your own.

What it the point of the post. Well, how can we expect to educate our children on the stupidity, silliness, inappropriateness, and danger of cyberstalking and cyberbullying when adults themselves cannot behave in appropriate ways and show good character? How do we expect to help our children develop honesty and integrity in an ever-increasing technological worlds when the role-models they see cannot do it for themselves.

It is time to leave the naivety behind as it relates to the dangers of cyberbullying and cyberstalking and start being truthful to ourselves and those that we care about.

Cyberbullying and cyberstalking is not on at any time, it is not welcome at any time, and it will never be a solution ever!

Those of you out there engaging in this atrocious behaviour, get over yourselves, get a life, and get on with living your own and leave the rest of us to do the things that need to be done. The stuff being written, spoken, shown and disseminated anonymously is nothing more than cowardice with a capital "C".

This 'information', in the weakest sense of the word, is being disseminated anonymously as the perpetrators are more worried about the "truth" of their allegations and the veracity of their allegations that they feel safer hiding behind the veil of anonymity. But rest assured it will not be long till that veil becomes sheer and your true identities will be uncovered, or unveiled perhaps.

Sweet dreams...

Thus endeth the sermon!

Aburizal Bakrie: Defamed?

Has Singapore come to Indonesia? The way of the Singaporean political elite is to sue their political opposition into oblivion by abusing defamation laws. Perhaps, Aburizal Bakrie has realised that Indonesia defamation laws, both criminal and civil, allow for Indonesian politicians to do the same.

The recent reporting of an alleged meeting between Gayus Tambunan and Aburizal Bakrie in Bali during a recent tennis tournament has struck a chord with the man behind the Sidoarjo mud extrusion. Gayus was the point man on a tax avoidance racket that included a number of Bakrie companies. The racket saw tax obligations lowered and mechanisms put in place to ensure that the government lost any challenges that it made against the assessments.

The racket worked well for a while, but it has seemingly begun to come unstuck. Needless to say there are a few nervous people floating around the circles of the political elite as they wonder just how much Gayus knows and just how big the bucket of crap is that he has to spill. This is particularly so if the Corruption Eradication Commission (KPK) gets involved. So, it is within this framework that a meeting between Gayus and Aburizal Bakrie appears believable.

And, truth be told there would be plenty of people from all walks of life who would like to see Bakrie come unstuck and get shafted in the most figurative of senses, then again there are probably a few who wouldn't mind seeing that happen in a literal sense either!

But I digress. Aburizal Bakrie has decided that the news organisations that reported this alleged meeting have defamed him. So, he went to the press council to lodge a formal complaint. It is expected that an official complaint to police will be lodged in the near future.

The five media organisations include Kompas, SCTV, Metro TV, Detik.com, and Media Indonesia. Metro TV and Media Indonesia are an interesting choice as as they are the media vehicles of Surya Paloh. Paloh happens to have been a past challenger to Bakrie's dominance in Golkar.

It seems that Bakrie is a little upset that his denials of a meeting ever taking place were not accepted as given. Therefore, Bakrie is of the belief that because his denials were not accepted as the ultimate truth that he has been defamed because the media is guilty of character assassination. The man is on a mission to clean up the media which he believes has degenerated into outlets purveying lies and spin-doctoring the truth to turn the public against him.

It will be interesting to see where this latest crack at criminal and civil defamation laws goes.

(Photo courtesy of Antara)

Roger Ailes and Nazism...

Roger Ailes is the Head of Fox News Channel. I am not convinced that "news" is the right word for what Fox does, but to each their own.

However, it is Ailes' comments about National Public Radio (NPR) that have me shaking my head and muttering WTF is this man talking about?

Ailes said the following in reference to NPR in the wake of the firing of Juan Williams:

"They are, of course, Nazis. They have a kind of Nazi attitude. They are the left wing of Nazism."

Comparing NPR executives to Nazis is absurd in the extreme. It also highlights a complete lack of understanding of Nazism and ultimately the development of the Final Solution and the holocaust perpetrated against European Jews.

Ailes remarks remind me of the content of a subject I used to teach at universities throughout Indonesia on advocacy. Advocates must be conscious of their biases and their prejudices so that they do not begin to exaggerate to the point of absurdity in trying to sustain their argument. Comparing NPR executives to Nazis is an exaggeration in a most offensive form. If Ailes was not always so focused on getting off cheap shots at liberal institutions and the liberals themselves, then his brain might have kicked into gear before his mouth did and he might have thought twice about his comparison of NPR executives and Nazis.

In hindsight he did reflect a little and offered an apology of sorts, but not to the NPR executives. Ailes offered his apology to the Anti-Defamation League (ADL).

Part of the reason why I do not watch Fox News Channel is that there is nothing that I can reconcile with the slogans "Fair and Balanced" or "We Report, You Decide", as both are clearly misnomers for what FNC does.

SBY Having Another Buffalo Moment...

It would appear that the very considerable resources of the National Police Force of the Republic of Indonesia are being brought together to keep people's legitimate rights to protest at bay. Funnily enough in the democracy that Indonesia claims to be, there are those that don't see eye-to-eye with the president on his performance.

In order to make the president see that he is doing a below average job they plan to protest on 20 October 2010 to commiserate the first 12 months of the second Yudhoyono term.

A previous protest was notable for the reaction of the ever and over-sensitive president. One of the protesters thought the best visual way to articulate his dissatisfaction about the job the president was not doing, namely: being president, was to bring along his buffalo and paint SiBuYo on the side of it.

There is little doubting what this protesters intention was. However, this, in my opinion, is a poor rap for the buffalo. After all, the buffalo is worth something and actually pulls their weight and does some work.In fact, the buffalo earns its keep. Whereas, in contrast SBY, is just big, fat and lazy, except when it comes to making albums and inserting inappropriate questions into the civil service exams!

But, to ensure that the super-thin-skinned president is not the subject of ridicule and offense. The National Police have reminded protesters they are not to bring animals to the protest, particularly animals that will cause offense. This is presumably for public safety and law and order concerns. As I said, bad rap for the buffalo.

Maybe the RMS should just start bringing buffaloes to the airport...it seems that Pak Presiden is just as scared of buffaloes as he is court cases.

Prita Mulyasari and "That" Defamation Judgment...

There is one thing you can say about Indonesia, justice is a slow process through the courts. On the other hand, unchecked vigilante justice ensures the swift conclusion to almost any dispute! However, that old adage, which I am sure is too cliche now, "justice prevails", has proven true yet again.

Unfortunately, Prita Mulyasari had to wait a long time for justice to be recognised. Good for her, but one must not forget the very many Indonesians whose cases do not attract the same amount of public attention; they continue to languish in the system and without any light to be seen at the end of their nightmarish legal tunnels.

For Prita, her case should never have gone to the courts in the first place. It should not have gone to the courts for the simple reason that there was no case to answer, either criminal or civil. The case does highlight how over-zealous prosecutors can get it wrong, particularly when the ominous specter of case brokers and court mafia appear. That, and perhaps, a suggestion that the "victim" figured any up front case facilitation fees they might have to pay to get this thing off and running would be recouped several times over in any judgment that was awarded to them

The civil suit saw damages awarded to Omni International Hospital to the tune of IDR 204 million. The international here does not seem to relate to the level of service they provide, but more to the scale ..., nah, pet's not go there, I would not want to get sued for defamation or anything!

So, the Supreme Court in its infinite wisdom decided to toss the civil judgment against Prita. Tossing the case means the fine is expunged along with any need to make a public apology in a local rag in Jakarta. Nevertheless, the Supreme Court's decision to toss the civil suit ends only the civil action. The reality is that there is still a pending criminal appeal on which the Supreme Court is to decide (at least as I understand it). Prita's lawyers are bandying around the idea that it is unlikely the Supreme Court will toss the civil case and affirm the criminal case.

On face value, I would agree. But, it is the Supreme Court of Indonesia, the last bastion in many cases of hard-to-explain decisions. Let's face it, the last 48 hours has seen them reignite the KPK war by issuing a ruling that says the case against Bibit and Chandra must continue. It is fair to say the last 48 hours has been a real mixed bag at the Supreme Court.

Once the Supreme Court hands down the decision on the criminal appeal I might be able to close this sorry saga in a blogging sense.

Calling President Obama Names...

I was reading a story earlier on today about a British teenager who sent President Obama an email message. The message is allegedly a drunken rant, but the gist of it was that the president was a "prick"!

I am sure he is not the only one in the whole wide world that thinks that, but he is probably one of the few that have bothered to get online and track down a working email address for the White House and fire off his little tirade.

Unfortunately, for the teen, Luke Angel, the FBI intercepted the message, made a few calls to the British police, and the local coppers came around to his house in Silsoe, Bedfordshire, and reprimanded him.

For his efforts, Mr. Angel is now apparently banned from travelling to the US for life. Yep, I had to read that twice myself. I find it hard to believe that calling the president of the US a prick warrants quite such an extreme measure. There simply has to be more to it, doesn't there?

Let's face it, there is a big difference from calling someone a prick and threatening to kill them. There is a big difference between calling someone a prick and using a racial epithet, even.

According to the US Department of Homeland Security there are 60 reasons why someone might find themselves on the "banned from the USA" list. I only have 59 others to track down. Hopefully, they are a lot more serious than this one! I wonder if Mr. Angel would have been banned had he called President Obama a wanker? What about a clown? Or perhaps a Nazi?

On a personal note, I like the fella and like the idea that Obama is president. I actually would have voted for the fella if I was a US citizen with the right to vote. I reckon that he is doing a pretty good job in a very tough gig. I always thought he had much thicker skin than that. After all, the president lived in Indonesia for three or so years in his formative years, and you have to be tough inside and out to survive that!

This story surely must be a beat-up...the US is not really banning people from travelling to the US for calling the president names, are they?

Fatma, Trans TV, Sex Tapes, Porn, and Defamation -- Legal Issues...

A private Indonesian television station, Trans TV, is pondering the possibility of a criminal defamation action over a sex tape posted on the internet and alleged to be of a Trans TV employee by the name of Fatma.

According to Trans TV they have an employee by the name of Fatma but the video is clearly not of her. The sex tape in question provides a pretty clear shot of "Fatma" so a simple photo comparison might be enough to prove this one way or the other.

I have written elsewhere on this here blog of mine about criminal defamation in Indonesia and the pros and cons of such laws. It is interesting that Trans TV thinks that there is something actionable here in the first place. But, the complaint seems to be based entirely on the belief that an employee sex tape scandal harms the image of the company. Maybe it would, then again, maybe it would enhance it.

I cannot speculate on the reasons for giving the video the title of "Fatma - Trans TV", but if I was to speculate then it would probably be because Indonesians love a good scandal and a TV employee on a sex tape would be good fodder for gossip shows, gossip magazines, and even the rival TV stations.

The funny part of this, if there is a funny part, is that Trans TV has in fact admitted to being in breach of the law, the Anti-Porn law to be precise. The quote from Trans TV via their spokesperson, Hardiansyah reads as follows:

“Our own investigation shows that the video was taken from a porn site and the perpetrator changed the title to ‘Fatma-Transtv’”

The Trans TV investigation revealed that the tape lasts for 2 minutes and 34 seconds, was originally taken on a mobile phone, and was produced on 3 March 2007.

So, this investigation and knowledge that the original video has been taken from a porn site was done by Trans TV. So, does this mean that Trans TV has been accessing internet porn and downloading it in Indonesia? And, then heavens forbid, viewing it in Indonesia? The Minister of Communication and Information is going to be horrified!

I might follow this case as it develops, if it develops, because it will be interesting to see where Trans TV takes their criminal defamation complaint. I will also need to do a little more reading and research. This will not necessarily involve watching Fatma in action, but I have note read anything about who uploaded it, whether it was uploaded in Indonesia or overseas, or who Trans TV is thinking they are going to make the subject of the complaint.

There has certainly been a lot of porn coming out of Indonesia of late. Perhaps Ariel, Luna Maya, and Cut Tari were just the tip of a porn iceberg that is about to come into full view.

Luna Maya Returns to Twitter...

What is it with this grabbing the dog from behind picture. Everywhere one goes looking for a Luna Maya picture, this is one of the first ones to appear...





Luna Maya (@lunmay) has returned to the Twittering fold and reactivated her account on the microblogging site. I guess this means you cannot keep a good woman down, even if you lodge a criminal defamation complaint against her?

The Luna Maya fiasco erupted when some infotainment journalists became a little over-zealous in their pursuit of the interview and photo that we mere mortals crave in our daily celebrity fix. During the ensuing free-for-all Ariel's (the boyfriend of LM) little girl was clocked in the head with a camera or something. This led to the famous tweet comparing infotainment journalists to prostitutes and murderers. Subsequently, the Luna Maya Twitter account disappeared after a short apology was posted.

But, it is back! There have been no new tweets apparently. Apparently is because I do not tweet or twitter and I am going on what others have said. Ah, the beauty of second hand information.

What is interesting is that the Minister of Communication and Information, Tifatul Sembiring, has come out and said that the Information and Electronic Transactions Law that the Indonesian Journalists Association (PWI) is using as the basis of its criminal defamation claim was not drafted not designed for this sort of criminal defamation action.

According to Sembiring, the ITE Law was drafted and is designed to prevent computer related crimes such as credit card fraud and hacking., That said, it would seem that Article 27 also seems to open the door for arguments that the ITE Law also conceives that criminal defamation might also be a crime within the scope of the law.

As usual, a Luna Maya post lends itself to some gratuitous picture posting.

Liberty...

Every law is contrary to liberty.

-- Jeremy Bentham (1748 - 1832)
Principles of the Civil Code (1843)

This undoubtedly applies to every nation and every individual in the world. However, I post it here as I have been thinking about the pending criminal trial of Prita Mulyasari and the recent Twitter spat of Luna Maya and the use of the Information and Electronic Transactions Law (ITE Law) in Indonesia.

I am particularly interested in the different ways that journalists view this law as a restriction on free speech. The Alliance of Independent Journalists (AJI) in Indonesia has campaigned against the law whereas the Indonesian Association of Journalists (PWI) has decided to use the provisions of the law to file a criminal defamation complaint.

These are indeed interesting times in which we live.

Manohara Odelia Pinot -- Part XXIII -- Default Judgment

It has been a while between drinks, so to speak, when it comes to the Mano posts. However, apart from her self-titles soap getting canned, there has not been anything much newsworthy to post on. Nevertheless, patience pays off, and the girl is back in the news this week and in a bit of a lawyer-driven bind.

It is interesting to see that the press refers to Mano as an Indonesian teen soap star. I am not sure that one truncated, and ultimately cancelled, season warrants the description. Yet, as a teenager she still has time to become a star. However, Mano and her mum, Daisy Fajarina, are in a spot of bother. That bother is what is likely to be a 105 million ringgit default judgment against both Mano and her mother for defaming and slandering Mano's former husband, Tengku Fakhry, of the Kelantan royal family.

Mano and Daisy's previous legal representation have handed back the case files and bailed on the case. The Malaysian High Court has decided that Mano and Daisy have until 5 November to get new legal representation on board and complete the case or run the risk of the court handing down a default judgment. It would seem that Tengku Fakhry thinks he is on a winner no matter whether his former wife and mother-in-law get counsel or not, as he was supportive of a delay to allow Mano and Daisy to seek out new legal representatives.

Aside from the cash, the prince is also asking that the court hand down an injunction that prohibits both Mano and her mother from defaming him by constantly stating publicly that the prince sexually and physically abused Mano during their brief marriage. This mistreatment also included an allegation of abduction or kidnapping.

The best defense to an allegation of defamation or slander is truth. It would seem that with this case, the prince is asking both Mano and Daisy to ante up and prove the truth of their allegations or withdraw them and be penalized for making false claims.

It has been suggested that Mano has been paid well for her work on her short-lived soap opera, but I am not sure she was paid well enough to cover a default judgment of 105 million ringgit.

(Photo courtesy of here)

Roy Suryo...

Perhaps it is only fair to give the man his full title, Kanjeng Raden Mas Temenggung Roy Suryo Notodiprojo or KRMT Roy Suryo. After all, if you have a royal sounding title you have probably earned it. Roy Suryo, as he is known to his mates, is a self-proclaimed and self-taught expert on telematics. If you do not believe him, then you should just ask him.

The man is never short of a comment, and funnily enough is pretty regularly called in to pass expert commentary. Some of his better performances have been to equate bloggers and hackers as being one of the same. As a witness for the prosecution in the ongoing Prita Mulyasari dispute he offered up in his expert testimony, allegedly, that Prita intended to distribute the email because she sent it to all her friends, and did not CC or BCC the email. Therefore, this was sufficient to prove that the intent to defame had been made out.

He is close to the President, and has in fact speared the president and the president's party for large sums of cash to set up a website.

But, even more interesting is that this fellow is the master manipulator and promoter of an image, his own. So, the idea that he was seriously being considered for the position of Minister of Communication and Information should be taken with a grain of salt. It would have been a bad choice because he would have come to the position with a good number of Indonesian citizens questioning his expertise, his skills, and his ability to perform the role.

However, for his part, Roy Suryo contacted the press to let them know that he was OK with the president's choice not to appoint him to the ministerial role. Yet, at the same time as saying that he understood the president's choice, he was going on the offensive and after the person that is expected to get the nod for the ministerial slot, Tifatul Sembiring.

Sembiring has been outed as a polygamist. Although, polygamy is discouraged, it is not illegal. Provided that it is done in a manner that conforms to the prevailing laws and regulations then it is legal. Nevertheless, Roy took the opportunity to openly question whether Sembiring's polygamy would impact on his ability to do his job as the Minister of Communication and Information. I would have figured that communication and information would have had to be something that Sembiring was good at with two wives.

Seriously though, here is a fella that cannot distinguish between bloggers and hackers wondering out loud whether polygamy is going to be a hindrance to Sembiring in doing his job. Seems a little on the rich side for me.

It is worth noting that in all the high profile cases of late that Roy Suryo has appeared for the prosecution, there has been a vigorous defense put on highlighting the fact that Roy Suryo's standards as a telematic expert or in the field of digital forensic science are lacking. This is particular so in the case of Ananda Mikola and Marcella Zalianty.

I am not an expert on telematics or technology in a general sense. However, I would be concerned if I was an Indonesian and the idea of making this bloke the minister was in fact real. He really has not shown over the years to be up to the job.

That is not to say that Sembiring has shown himself to be up to the job either. But, his practice of polygamy is not a key indicator in his job performance or ability to do the job, is it?

Blog Housekeeping...

Dear All...

I have enabled comment moderation.

It seems that I have attracted some unwarranted attention and one particular thread has become a platform for defaming and slandering a number of individuals who do not voice an opinion that is in agreement with their views.

These commenters have opted to post anonymously or under pen names, but have so far failed to show the courage of their convictions and post under their real names. So, if you want your comment to be published use your name, or provide me with a reason why I should let you post under a pen name. That said, any tame comments posted by anonymous posters might make the grade provided they do not defame. If you post anonymously, then you take your chances with my discretion.

I feel that I have little choice but to enable comment moderation and prevent defamatory and slanderous comments from making their way into the public domain.

If you want to know what I am talking about then feel free to ask me and I will direct you to the relevant post and comments.

Prita Mulyasari -- Defamation -- The Retrial...

The Prita Mulyasari defamation case, or perhaps "saga" is a better word, continues with the retrial commencing in the Tangerang District Court yesterday.

This case really does not contain enough legal issues of consequence for the prosecution to be pursuing this as some sort of test case for the provisions on defamation in the Information and Electronic Transactions Law or for that matter the overlap of those provisions with the ones contained in the Indonesian Criminal Code.

The saga is probably worth a PhD thesis, maybe it could be mine.

Brett over at Spruiked is always a man on a mission, and the Prita case is one he is quite vocal about.

If anything the case highlights the severe need for ongoing or continuing legal education in order to ensure that all legal practitioners are up-to-date with current legal developments and practice. Simply, this was not the case to run as a test case. Even more interesting is that in the retrial the prosecution has decided to lead with expert testimony from a linguist who admits on the stand that he has no real conceptual understanding of what defamation is in the legal sense.

The expert testimony of the linguist was simplistic at best; the contents of the email could be considered defamatory because there was a sentence that questioned the professionalism and politeness of the hospital staff. Ah, OK. But tell me you have more!

The idea that doctors can be unprofessional and hospital staff can be rude and impolite is hardly a revelation. There are probably more people floating round in the world who have a bad story to tell about the way they were treated in a hospital than those that have a good story to tell.

A visit to a few Australian websites and a good read of some of the news there would highlight that it is not uncommon for hospitals to be criticized for their poor service and professionalism. There have been a spate of recent cases over the last few years of women miscarrying in hospital toilets as they were made to wait for treatment.

The idea that Prita was treated unprofessionally and impolitely is not some kind of out of the ordinary shocking development. In any event, and as I have always maintained, even if by some magical alignment of the stars her email was defamatory, then the best course of action to defend the charge would be that the statements contained in the email are the truth.

The reality here is that Prita was diagnosed with dengue fever at Omni and after becoming fed up with the treatment she was receiving at Omni, checked herself out and into another hospital where she was diagnosed with mumps, treated and subsequently got well. At least, this is how I understand it. I am sure that if that is an incorrect understanding someone will inform me of that. And, then I will make a note here (as a postscript).

The fact of the matter is when you are sick and you go to the doctor you are expecting that the doctor will get the diagnosis right and treat you. A misdiagnosis can sometimes happen but all the same a misdiagnosis is a misdiagnosis and in that sense it is not unreasonable to question the professionalism of the doctor involved.

Anonymous Blogger -- Outed By the Courts & Google...

This is a follow-up to an earlier post on anonymous blogging and whether one can be truly anonymous when they blog, particularly if they are writing content that offends someone and they decide to take legal action. You can read that post here.

The anonymous blogger is Rosemary Port, a 29-year-old fashion student from New York, and she is so unhappy about Google giving up her identity and breaching her right to privacy that she is allegedly going to sue Google for USD 15 million.

Port's lawyer, Salvatore Strazzullo, seems to think that the case has enough legs to get all the way to the US Supreme Court. The arguments that Strazzullo are going to run with revolve around the fact that Google has "breached its fiduciary duty to protect her [Port] expectation of anonymity".

However, the other likely angles include that Cohen had a hand in publishing the sexually provocative pictures of herself and that the defamation action was nothing more than an attempt drum up some publicity for herself and defame Port into the bargain. Furthermore, Cohen has described herself as a "serial monogamist". Interesting choice of words to accompany the pictures posted of her.

This case would seem to have some ways to go.

A long story short, Port created a blog called "Skanks in NYC" and it seems that the only 'skank' Port focused on was Liskula Cohen. Cohen was offended and felt she had been defamed but was unable to proceed with any claim against the person doing the defaming because the blog was anonymous. Jumping forward, Cohen sues Google to get the identity of the anonymous blogger, the court decides that Google must hand over the identity, Google hands over the identity, and Port is outed.

Strangely enough, Cohen has 'forgiven' Port and pretty much brushed the matter off as Port being "an irrelevant person in my life". It would seem she knew Port, but obviously they were far from being friends. Although, they seem to have known each other well-enough that Cohen was comfortable allegedly trashing Port to Port's ex-boyfriend. Ahhhhh, the lives of models and fashion students.

It will be interesting to see if all the talk of taking this case all the way to the US Supreme Court comes to fruition.

How Anonymous Are You Really When You Blog?

Here is some food for thought for those of you out there, me included, who blog and say things that may or may not be considered defamatory.

A model, Liskula Cohen, has successfully sued Google for the name of an anonymous blogger who she alleges defamed her on a blog hosted by Google. The blog was called Skanks in NYC. The essence of the defamation case is that the anonymous blogger called Cohen a "skank" and an "old hag".

The anonymous blogger identified Cohen as the "skankiest in NYC". This was then followed with, "How old is this skank? 40 something? She's a psychotic, lying, whoring, still going to clubs at her age, skank." I am guessing that this does not leave much to one's imagination. Is it defamatory? On face value, probably.

However, there are defenses to defamation that if the decision survives appeal, assuming there is one, then the anonymous blogger would likely be arguing an extension of what the blogger's lawyer has put forward so far, namely: this was mere opinion and "trash talk" rather than any intent to defame. The extension here would be to argue that, in essence, what has been said is in fact true.

Judge Joan Madden has ruled in favour of Cohen and has ordered that Google must provide the name of the anonymous blogger. It is expected that the name of the anonymous blogger is to be revealed in court as a means of allowing Cohen to proceed with her defamation action against the currently anonymous blogger. According to Judge Madden the assertions made were that Cohen was sexually promiscuous and the accompanying photos on the blog bore this intent out sufficiently well.

Cohen's modelling career was seemingly cut short when she was glassed in 2007. The resulting injuries required 46 stitches to close the wounds. Cohen was glassed when she objected to some drunk bloke stealing a bottle of vodka off her table. The bloke decided his best course of action in response to this objection was to glass Cohen in the face. The bloke was sent to jail, and deservedly so.

The case is interesting because of the potential implications. These implications are that anyone who thinks they are blogging anonymously may not be so anonymous after all. There are undoubtedly many techno savvy individuals out there with the knowledge and means of ratcheting up their anonymity to make discovery of their true identities even more difficult or impossible.

I am not one of them. I have enough trouble just using the features of blogger to be worried about whether I am anonymous or not. That said, I am using my real name to blog. So, if I have defamed you then you know where I reside in cyberspace.

There is a belief that this decision will open the floodgates to litigation and defamation claims based on comments written online that people do not agree with. This would seemingly be the case.

It is worth noting that the blog in question was shut down in March of this year. The blog contained only five entries and all of them related to Cohen. My guess is that the anonymous blogger is likely someone she knows or someone she has had some acquaintance with. Alternatively, it is, or was, a cyber-stalker which is a scary thought.

Something for all you anonymous bloggers out there to consider is this statement from Google:

"We sympathise with anyone who may be the victim of cyber bullying. We also take great care to respect privacy concerns and will only provide information about a user in response to a subpoena or other court order." So, make sure you re-read the privacy statement from Google again if you thought what you clicked guaranteed your absolute privacy.

Food for thought.

Manohara Odelia Pinot -- Part XX -- A Claim for IDR 3 Billion

Tengku Fakhry has decided that Manohara and Daisy owe him the equivalent of some IDR 3 billion in money that he has provided to them while he was married to Manohara. This claim has been filed in a Malaysian court.

Daisy, in her usual manner, has dismissed the Prince's claim as not only excessive, but plain wrong. According to her, she does not owe the prince a single penny. Actually, Daisy went a little further and added that she thought the prince was acting like he is a God who thinks he can control any one that he wants.

This would seem to exclude Daisy and Manohara as they managed to escape his clutches and have since shown that they have no fear of the man. Not one to miss an opportunity, Daisy added that so far, the prince's behaviour has been a little erratic and it seems that he does not know what he wants; whether he wants Manohara back as his wife or whether he wants to sue her into oblivion.

It seems that this particular saga still has legs and is looking like I can get a few more posts out of my fascination yet. And, there is always the issue of what is going to happen to Daisy on another legal front related to her abuse of a former maid.

Ain't life grand.

By the way, the photo can be found here. I am not sure whether this is a real photo of her or a photo-shopped one, but it looks like a mobile phone capture to my untrained eye.

Prita Mulyasari -- Judicial Review of the Banten High Court...

I like OC Kaligis. He is a passionate about lawyering and he has contributed lots to Indonesia's ever-expanding mooting community, which is something I am passionate about as well. However, the desire to seek judicial review of the Banten High Court decision that orders the Tangerang District Court to retry the Prita Mulyasari defamation case is a case of barking up the wrong tree.

To be clear, I do not think that this case should have been heard in the first place, civil or criminal, however now that it has, it is an excellent test case and the team from OC Kaligis' law offices would be better to focus on the manner in which they could conceivably contribute to setting an Indonesian legal precedent. Yes, Indonesia is a civil law country and precedents do not play a big part, I have heard it all before. In a civil law country like Indonesia that is trying to forge a strong reliance on the rule of law means that a precedent like the one that is possible in this case would be a significant achievement, particularly for legal and legislation certainty.

The OC Kaligis team in pursuit of "justice" is going to lodge a brief at the Supreme Court to have the Banten High Court's decision judicially reviewed. A very basic and general analysis of Indonesian law would require that the Banten High Court decision include an error in application of the prevailing laws and regulations or there is new evidence that would render the verdict unsustainable if the court had had access to that evidence at the time the decision was made.

The decision of the Banten High Court appears to be on solid legal grounds. It does not appear to have erred in the application of prevailing laws and regulations with regards to the decision handed-down. Without having read the brief, it is hard to see what new evidence might have come to hand that would render the verdict unsustainable. Although, one of the lawyers from the Kaligis team suggested that he hoped the Banten High Court decision was not influenced by factors other than the prevailing facts in the case. So, maybe the infamous court mafia weaved its considerable magic?

Nevertheless, OC Kaligis is doing his job by seeking a judicial review. This is in the sense that a lawyer must explore every possible avenue that is available to their client in the pursuit of not only justice, but to prove their client's innocence. In any event, the Supreme Court has a history of interesting decisions that overturn lower court decisions. So, an appeal to the Supreme Court could be a winner for Kaligis and his team if the are holding the "right" ticket in the lottery.

I have always argued that the best possible outcome for Prita would be to prove that the defamation did not occur. Or, if it did that there are defenses available, specifically that what was contained into the letter to friends that found its way onto several mailing lists was factually correct. Simply, you cannot defame someone or an institution with the truth. The truth is as it is, truth!

You know there will be more on this as it comes to hand.

Keyser Trad, A Racist?

This particular post might be of more interest to my Australian readership and those that have an interest in race relations and defamation in Australia.

Keysar Trad, founder of the Islamic Friendship Association of Australia and spokesperson for Sheik Taj El-Din Hilaly, had sued Harbour Radio, the owners of 2GB, for the comments of Jason Morrison on air. In essence, Morrison said that Trad was gutless, trouble, disgraceful, and dangerous, and also an individual who incites violence, hatred, and racism. These comments were made in 2007 just after the Cronulla riots.

Just on the Sheik, this is the same Sheik that said the following in response to a rape:

"If you take out uncovered meat and place it outside on the street, or in the garden or in the park, or in the backyard without a cover, and the cats come and eat it ... whose fault is it, the cats' or the uncovered meat? The uncovered meat is the problem. If she was in her room, in her home, in her hijab, no problem would have occurred."

Trad went onto sue and won a jury trial. However, Harbour Radio appealed on the grounds that what was said, although defamatory, was true. In the appeal at the NSW Supreme Court, Chief Judge Peter McClellan agreed with Harbour Radio. McClellan J was unequivocal in stating that the comments made by Trad were "offensive", "racist", and "condoned violence".

In dismissing the claim and ordering that Trad pay Harbour Radio's costs, McClellan J said, "There is little doubt that many of the plaintiff's remarks are offensive to Jewish persons and homosexuals". He then went on to say, "I'm satisfied the plaintiff does hold views which can properly be described as racist."

It is of little surprise that Trad plans to appeal. It will be interesting to see where the Supreme Court has erred in its application of the law in order for the appeal to go forward.

Prita Mulyasari -- Defamation -- To Be Retried...

This is unfortunately one of those cases where one just knows what is going to happen before it actually happens. It would also seem that the Banten High Court reads The RAB Experience, but this would not seem to be the case for Prita and her legal team.

The Banten High Court has ordered the Tangerang District Court to retry the defamation case against Prita Mulyasari. This may have come as a surprise to some, but the reality was that in a strict legal sense the decision could not have been any other way. Simply, the Tangerang District Court erred in the manner in which it dismissed the indictment against Mulyasari (news).

The Banten High Court held in its decision to send the case back to Tangerang for trial was that the decision of the Tangerang District Court was unlawful. In essence, this means that the legal reasoning provided to justify the dismissal of the case in the first instance was wrong. The Chief Judge of the Banten High Court, Sumarno, was unequivocal in stating that the Tangerang District Court erred in its judgment.

The debate on the legal reasoning can probably be found in lots of places. However, I wrote about it here and here. However, although the earlier comment about the judges of the Banten High Court reading The RAB Experience was somewhat tongue in cheek, the legal reasoning of the panel of Banten High Court judges explicitly stated that the error of the Tangerang District Court judges was the belief that the Information and Electronic Transactions Law does not come into force until 2010.

The lawyer for Prita Mulyasari, Slamet Yuwono, might be keen to test the defamation provisions himself, as he went on the record to say that, "... I just hope that the high court judges were not compelled by anything other than legal considerations." Ah, Slamet, compelled by what exactly? A small fee from the Office of the Public Prosecutors or the Omni International Hospital? Unfortunately, Slamet, refused to elaborate on what the suggestion was.

The Information and Electronic Transaction Law is contentious. It is contentious not because of the date the law comes into force. It is not contentious as to whether the definition of defamation is clear or not. It is not contentious because the Law provides a two-year window for subordinate or subsidiary legislation to be put into place to give effect to or clarify certain articles. However, it is contentious for the simple reason that Indonesians are currently engaged in a debate about the validity and usefulness of criminal defamation provisions in any law.

The contentious nature of the Law is whether criminal defamation is a means to an end. That is, is the Law a means of stifling legitimate free speech and expression? Further, and perhaps even more important to some, is whether this case highlights the way in which big business can bury consumer complaints about the services received by the consumers themselves?

A quick read of the Letters to the Editor pages of most Indonesian newspapers will see Indonesians writing letters of complaint about one thing or another. Usually about the notoriously bad service provided by banks and financial institutions, and quite often this is to do with credit cards. What the Mulyasari case has shown to date is that big business no longer need to respond to complaints but rather use their vast financial reserves to bankrupt their customers or at least use the threat of doing so.

Going forward. The Tangerang District Court now has no choice but to revisit the Mulyasari case and hear the arguments from both sides. The only way that Mulyasari is victorious here is if her legal team can prove that what was written was not defamation in the manner in which defamation is defined in the Information and Electronic Transactions Law. If they can then the Court can once again dismiss the case and Mulyasari will be free to go on about her life.

Nevertheless, and at the risk of raining on the parade, this is a test case and no matter what the outcome of the retrial, it seems clear that both sides would be likely to appeal if they are on the wrong side of the verdict. This is a case that is going to be tied up in litigation for a good while longer yet.

That said, the only way this would end quickly is if Mulyasari gets the verdict and the Office of the Public Prosecutor in Tangerang declines to appeal the verdict. Judging the performance of prosecutors to date, it would seem that they are intent on seeing this one through to the bitter end. They want a conviction or they are going to die trying.

Manohara Odelia Pinot -- Part XIX -- Upping the Ante

At the outset, a reminder is necessary...this is a fascination and not an obsession! :D

The prince, Tengku Fakhry, has certainly upped the ante in the domestic / marriage dispute between himself and his teenage wife and her mother. The ante in this case is reportedly in the tens of millions of Ringgit for the defamation case that the Fakhry has submitted to the Malaysian courts. Latest reports set the figure at 105 million ringgit. There is also another claim that Manohara's mother, Daisy, owes the prince about 1 million ringgit.

I am still wondering why a 30-year-old prince wanted to marry a 16-year-old wanna be starlet and social climber. Perhaps he was sucked into the black magic powers of the mother and the surgically implanted golden needles and diamonds in Manohara's jaw. Who knows, and I guess in the big scheme of things, who really cares outside of those immediately affected by this ever deepening crisis of domestic bliss turning to domestic mess.

Upping the ante also sees the prince's legal team for the defamation case, headed by Mohd. Haaziq Pillay, seeking special leave from the Kuala Lumpur High Court to file a writ of summons in Jakarta. Generally, in common law legal systems the permission of the court is required where a summons needs to be filed outside the jurisdiction because the defendants are not within the local jurisdiction. There would seem to be no reason why the court would not grant this application, except if the court was of the opinion that the case had no merit and no likelihood of success.

The court has since granted the leave and it would seem now the writ of summons needs to be forwarded to Indonesian authorities and onto the legal team of Manohara and her mother. It will be interesting to see if this spurs both mother and daughter into returning fire and filing criminal complaints in Malaysia regarding the alleged conduct of the prince.

If the duo do return fire then it will require them to start furnishing evidence of the alleged abuse, rape, kidnapping, and torture that the prince allegedly perpetrated against Manohara during their brief marriage. The reports of the abuse and alleged photos of the razor blading of Manohara have surfaced on the internet and doctors have issued statements in support of Manohara's claims. However, this has been a case of the drama being played out in the court of public opinion and the burden in this court is considerably different to that required in a criminal court of law or even in a civil matter.

To be clear, the sense here is not that Manohara has not been abused or raped or kidnapped or tortured in the manner that she claims. However, there is this underlying and emerging series of questions starting to bubble to the surface not only in Malaysia, but also in Indonesia, that if these claims and allegations are true, then why are Manohara and Daisy not more forcefully pursuing justice? On a personal level, I would like to think that in the big scheme of things that Manohara and her mother could use this unsavoury and tragic occurrence to help victims of domestic violence to escape their respective tragic existences for a better future.

Perhaps not one filled with a sinetron named after them and multi-billion rupiah appearance fees and the like, but an escape to a better life.

The defamation case is set for mention in the Malaysian courts on 2 August 2009.

The Indonesian authorities, headed by the Department of Foreign Affairs, has offered to help in any way that they can in terms of assisting Manohara and her mother filing the necessary paperwork to commence legal proceedings in Malaysia. Even the Malaysians themselves have committed to a thorough investigation to ensure that justice is done wherever that justice may be.

No matter what happens, there is still the issue with Daisy being to all intents and purposes on the run from French authorities. The sad part is that Manohara is not implicated in the legal problems that befell her mother in France, yet it is ironic that the mother, who has been so vehement in wanting to see the prince punished for his abuse of her daughter, is in fact a person who has been convicted of assaulting and abusing an Indonesian under her care.

If Indonesia is series about stamping out the practice of foreigners thinking that they can abuse Indonesia's migrant workers with impunity, then this would be a perfect case to say, enough is enough. The Indonesian government should be pro-active in working through the merits of the Daisy Fajarina case, and if necessary facilitating her return to France to face the music. To not do so sends a very poor message to all of Indonesia's migrant workers; where here for you if you want to come back and star in a sinetron and engage in some Malaysia bashing, but while your overseas you're on your own.

The last point is not entirely fair. Indonesia has and continues to pursue initiatives to afford greater protection to their migrant workers. If for no other reason than migrant workers repatriate huge sums of foreign exchange into the Indonesian banking system. Cynical, I know, but also true.

The time has come for Manohara and her mother to decide whether they are going to play legal ball here. The prince has shown his hand, Manohara's move.