Gisel’s case: When Anti-Pornography Bill Clashes with Privacy Issues

Personally, I didn't watch that 19-seconds sex tape video and I do not want to take much effort to get the viral short video. Yet this case is really ridiculous as proof that Indonesia's anti-pornography bill is harsh and such unfriendly law for women.

Indonesia is notorious for its draconian laws around pornography. In Indonesia, making adult content for personal use could land you in jail. Just ask singer Gisella Anastasia, popularly known as Gisel is a public figure, a mother, a singer, and a runner-up on the Indonesian Idol singing competition. She became a public sensation after her 19-seconds sex tape leaked to the public.

At first, Gisella reportedly denied that she was the woman in the video, but she is later claimed to have admitted to police investigators that it was her. Unfortunately, Gisel charged with violation of pornography law after her confession as the woman in the alleged sex tape with a man identified as Michael Yukinobu de Fretes (Nobu) and it was taken in 2017 at a hotel in Medan. This was strengthened by testimony from video forensic and IT experts.

Gisel said that she did record for personal documentation and she had no intention to resell it. The video was stolen and shared widely on Twitter on November 6 2020 after her phone lost. Both Gisel and Nobu charged have been charged under the anti-pornography law’s controversial Articles 4 and 8 and face the punishment of up to 12 years in prison. Meanwhile, legal experts have pointed out that the creators of adult content for personal use are exempt from prosecution, meaning Gisella and her male partner have been unlawfully charged.

Article 4 verse 1 on Anti Pornography bill stated that “Every person is forbidden to manufacture, fabricate, commercial quantity duplicate, reduplicate, spread about/distribute, broadcast, importation, exportation, make for sale, trade-in [sic: sell/buy product], lease/rent, prepare/make available or store/lay-away PORN which has the following traits: coital acts, foreplay and sexual diversions pertaining to coitus, sexual violence, masturbation or onanism, nudity or illusions/allusions to nudity, genitalia, child pornography”

Article 29 states that "any person who produces, reproduces, offers, sells, imports, exports, offers, sells, leases or provides pornography as referred to in Article 4 paragraph (1) shall be sentenced to imprisonment of a maximum of 6 (six) months and a maximum of 12 (twelve) years and / or a fine of at least Rp250,000,000.00 (two hundred and fifty million rupiah) and a maximum of Rp6,000,000,000.00 (six billion rupiah)".

Why does the pornography law not be emphasized towards the video spreader? Because he/she has violated and robbed someone’s privacy rights. Although Gisel is a public figure who is expected to give a good role model to the public and has a high risk of losing privacy area, yet Gisel has a right to get her privacy area as stated in article 28 G verse (1) in Indonesia’s 1945 constitution “Every person shall have the right to protection his / herself, family, honour, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right”

Meanwhile, in the international law view, article 12 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The polemic

The charge over Gisel has created a polemic and caused a public uproar. Indonesian citizens, rights activists, and legal experts have been slamming the authorities for bringing pornography charges against Gisel Anastasia. Most of the public opinion said that Gisel is a victim after the video was stolen from her device. that supposed to get law protection and the police should have focused on prosecuting the people who leaked the video online

The National Commission on Violence Against Women (Komnas Perempuan)'s commissioner Siti Aminah Tardi wrote the statement to call the police to focus on the person responsible for spreading the private video and urged for the case against Gisel and Michael to be dropped. They also urge DPR to revise Law No.44/2008 on pornography as they argue the law had been troublesome since its inception and call for victims to not be criminalized. Siti Aminah also calls for people to stop spreading the video online. Komnas Perempuan also encourages mass media to avert from gender bias in reporting about the singer, especially if the only reason is to increase website traffic through the use of the singer’s name as a keyword.

Meanwhile, Indonesia's National Commission on Violence Against Women's commissioner, Mariana Amirudin, said the case highlighted the deeply rooted misogyny still prevalent in the country. In porn cases, women are more harmed than men as women's bodies are more focused on compared to men's, women are also often being made nude objects so it is easy for them to be a suspect in cases like this. The cases such as this highlighted the disenfranchisement of women in Indonesia’s largely patriarchal society.

Researcher from the Jakarta-based Institute for Criminal Justice Reform (ICJR) Maidana Rahmawati criticized the naming of singer Gisella Anastasia (Gisel) and Michael (MYD) as suspects in the recent viral sex video by the Metro Jaya Police. Maidana strongly argued that Article 6 of the Pornography Law states that the ban of 'owning or keeping' pornographic contents does not include for personal use. Maidana also underlined that there is a fundamental element for the Pornography law to apply, which is the public space element, and as long as the contents are for personal use, even if in this case Gisel and Michael are seen as actors in the content. The Institute pointed to an exception in Article 4 of the anti-pornography law that states the creators of personal, adult content cannot be criminalized. The article clashes with Article 8 of the same law, which states that Indonesians are barred from being a model or object in any pornographic content. They said that the authorities must understand that both Gisel and Nobu do not want to share the video to the public or for commercial purposes, then they are victims that should be protected. The investigators must return their focus to investigating the perpetrators that shared the video with the public.

Olin Monteiro, a women’s rights activist and founder of Arts for Women, who had opposed the law before it was passed in 2008, founder of Arts for Women, told that The anti-pornography law should be amended, as this law was hastily passed and wasn't discussed in details with the public. She said that the law should not prosecute us because we make adult content for personal use. Laws like this are hurting women and other marginalized groups. Victims of revenge porn, for example, will be scared to report their cases to law enforcement.

Source:

- https://www.scmp.com/week-asia/people/article/3115881/indonesian-womens-rights-activists-defend-singer-caught-grip-anti

- https://www.dailystar.co.uk/news/world-news/model-charged-after-sex-tape-23243664

- https://www.monstersandcritics.com/celebrity/indonesian-singer-gisella-gisel-anastasia-charged-after-intimate-video-from-her-lost-cellphone-leaks-online/

- https://en.tempo.co/read/1418597/icjr-gisel-and-michael-cannot-be-charged

- https://en.tempo.co/read/1419024/stop-the-investigation-gender-bias-on-singer-gisel-komnas-perempuan