Executive director of the Center for Human Rights Law Studies (HRLS), Airlangga University
The issue of free speech in Indonesia’s democracy needs to be seriously promoted. This might be no significant change after the House of Representatives finally passed into law the controversial amendments to the 2008 Electronic Information and Transactions (ITE) Law last month.
There are two major issues related to newly revised ITE Law. First, to what extent the law protects citizens’ rights and freedom to express themselves without any fear of socalled cyber defamation.
Second, how this ITE Law revision strengthens democracy and human rights, especially in promoting public participation in all legal and political processes. This relates to the role of press freedom in the democratization process.
The public has recently been shocked by the detention of Yusniar, a 27-year-old housewife, after a comment on her Facebook account was deemed defamation (The Jakarta Post, Nov. 12). Yusniar is not alone. There have been more than 140 charges under the old ITE Law.
The ITE Law practice seems abusive in nature, especially in dealing with cyber defamation. Defamation using the Internet carries a maximum prison sentence of six years, or 12 years if the act harms or causes losses to others.
(Read also: Who actually needs 'right to be forgotten'?)
The Constitutional Court stated in its decisions No. 50/PUU-VI/2008 and No. 2/PUU-VII/2009 that the primary law for Article 27 paragraph 3 of the ITE Law is Articles 310 and 311 in the Indonesian Criminal Code (KUHP). Therefore, Article 27 paragraph 3 of the ITE Law is not considered an independent legal norm but rather is dependent on other provisions of the KUHP. For this reason, the meaning and definition of defamation cannot be interpreted and defined separately from the meaning of defamation in Criminal Code Articles 310 and 311.
Nevertheless, the practice seems to be draconian. This can be proven by two things. The aim of such an article has actually has been wrongly interpreted to attack freedom of expression, and most cases dealt with are personal expression, which is actually guaranteed under Article 28 of the Constitution and numerous laws, such as Law No. 39/1999 on human rights and Law No. 12/2005 on ratification of the International Covenant on Civil and Political Rights.
The application of the ITE Law has even gone so far as intervening in private communications, which are supposed to be guaranteed by the law for freedom of expression. The initial, and most famous, legal case was of Prita Mulyasari, who was convicted and imprisoned for complaining about hospital service in 2009 in a private email that went viral.
Most recently, a poor laborer in the East Java town of Probolinggo, Joko Hariono, stood trial after his director reported him to the police because of a private group communication among laborers that criticized the management. Surprisingly, when I testified as an expert witness, the prosecutor admitted to applying an obsolete, colonial era criminal law paradigm on defamation. Although the court finally acquitted the defendant, still Joko found the trial seriously intimidated his right to freedom of expression.
Therefore, despite the lesser maximum punishment stipulated in the revised ITE Law (four years, instead of six-12 years), the potential for the abuse of public rights remains high. The point is not merely about the punishment, but the need for a clear limitation and provision under the law itself. Learning from previous cases, the abusive application of the ITE Law stems from multiple interpretations that could lead to silencing criticism.
There is a new legal formulation under the revised ITE Law, namely “the right to be forgotten”, which Communications and Information Minister Rudiantara hails as an improvement, while critics deem it a setback to democracy and press freedom.
The article is very likely to degrade public participation in democracy for five reasons.
First, the article does not provide any clear guidance to implement the new right. The removal of personal data as an exercise of this right must be legitimate and have a reasonable legal argument. The process should also comply with transparency.
Second, the current debate in Indonesia over “the right to be forgotten” has actually taken place in Europe over the last few years ago, with confrontations between privacy and freedom of speech. The practice of this legal concept is aimed at rehabilitating the reputations of ex-convicts and protecting their rights in the cyber world.
In the Indonesian context, Article 26 could go beyond the practice of information access limitation in Europe as citizens may exercise their right to be forgotten on all websites and the media, including digital apps.
Third, there is no clear requirement and the procedure to delete such information digitally is prone to misuse for certain political interests. Unsurprisingly the new law will be easily used to strengthen impunity by hiding information about past human rights abuses and criminal acts.
Fourth, the legal consequences of the three aforementioned points are difficulties for the public to exercise their right to know and examine candidates running for public posts, as well as to monitor and participate in public policymaking, including criticizing public officials.
Fifth, the article contradicts Law No. 40/1999 on the press, which prohibits the government from restricting or curbing press freedom. The article aims to prevent the spread and use of certain electronic information, which could lead to censorship. The Press Law strictly prohibits anyone, including the government, from removing previously published news reports.
Considering the greater authority and power entrusted in the government, the newly revised ITE Law is not only misguided in principle but could also potentially attack 132 million Indonesian Internet users, as well as the freedom of the press.
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Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.