Without much fanfare, in November 2020 the communication and information minister issued Ministerial Regulation No. 5/2020 on Private ESOs as the implementing regulation for Government Regulation No. 71/2019 on Electronic Systems and Transactions. The ministerial regulation requires all private ESOs to register with the ministry by May 24, 2021 and comply with a provision that grants the government access to their systems and data. Failure to do so would see them blocked.

Private ESOs are also required to ensure that as an intermediary, their platforms do not contain or facilitate the spread of “prohibited content”. It obliges private ESOs to proactively filter user-generated content (UGC) that are posted to their platform in line with the government regulation, even if they already had community guidelines in place.

The ministerial regulation certainly gives the government more control over digital platforms. This aspect was apparently overlooked by Indonesian media and citizens, however, as evident in the absence of public debate over the regulation until a couple of weeks prior to the registration deadline.

Just a few days before the deadline, the minister amended the regulation through Ministerial Regulation No. 10/2021, but only after the regulation came under international spotlight. Human rights groups such as Human Rights Watch and Electronic Frontier Foundation called on the Indonesian government to suspend the implementation of such a “repressive” regulation, arguing that it violated the international standards of freedom of expression and could pose a greater risk to Indonesian citizens in the long run.

Ministerial Regulation No. 10/2021 extends the registration deadline to six months after the establishment of the Investment Ministry’s Online Single Submission Risk-Based Business Licensing system. This licensing system began a trial run on June 2, 2021 as per Ministerial Circular No. 14/2021. This automatically pushes the enactment of Ministerial Regulation No. 5/2020 to the end of this year.

Statistics Indonesia data showed that social media was the primary reason 87 percent of Indonesian users accessed the internet. As of January 2021, roughly half the population, or around 170 million people, were social media users (We Are Social and Hootsuite, 2021).

The high number of social media users also comes with a high volume of different types of online content. They vary greatly and carry different consequences. While UGC could offer benefits such as being educational, entertaining or informative, internet users can also be exposed to hateful, violent, abusive and even obscene content. The latter could have serious personal and social costs, especially for youths.

Thus, a mechanism to decide what content can stay online and what must be taken down remains crucial. That is why we still need content moderation.

Although content moderation aims to create a safe internet ecosystem, the minimal provisions in Ministerial Regulation No. 5/2020 on the processes available to internet users and private ESOs against a government request for termination of access, particularly by the Communication and Information Ministry, risks overenforcement.

This is further exacerbated by the definition of “prohibited content”, which is open to multiple interpretations, as well as the short time frame allotted to delete the offending content. This could impose limitations on the digital rights of Indonesians and hinder internet freedom.

Many have expressed concern over the use of Law No. 11/2008 on Electronic Information and Transactions (ITE Law) and its 2016 revision to repress political views and beliefs. It is an example of the power concentrated in government that has significantly threatened the digital sphere.

The government’s past moves to terminate access and shut down the internet on the grounds of preventing misinformation have often met with public resistance, ranging from online protests to offline rallies. Among the latest was the internet shutdown in Papua in 2019, which ended with the judiciary ruling the government’s action as unlawful.

Although there are sufficient precedents for the government to reconsider its internet policy, it still appears to be ignoring the people’s concerns. Rather than reconsidering the state’s involvement in digital space, regulation No. 5/2020 reemphasizes its central role in Indonesia’s digital governance by establishing the information ministry’s authority over private ESOs in taking down prohibited content, with limited due process and without an appellate mechanism.

Ministerial Regulation No. 5/2020 also requires that all ESOs comply with takedown requests from the ministry within a set time frame of 24 hours for non-urgent prohibited content and four hours for urgent prohibited content. This makes it difficult for ESOs to run comprehensive checks on the reported content, especially when the regulation gives no room for them to express disagreement. For UGC platforms, this obligation comes in addition to a requirement that they operate their own content moderation schemes.

Ensuring freedom of speech in the digital age is an arduous task for both digital platforms and the government. The thin line between freedoms and restrictions and where to draw that line as regards internet censorship has been an ongoing global debate. This debate revolves around how content moderation could balance protecting freedom of speech and maintaining a safe online environment, and what role digital platforms should play.

Rather than create an environment of legal uncertainty and arbitrary decision-making, Ministerial Regulation No. 5/2020 should instead establish standard operating procedures for content moderation that would allow digital platforms and users to express their objections to content removal requests from the ministry, while ensuring that content moderation remained transparent, independent and fair.

The information ministry should also develop an appellate mechanism that allows ESOs and users to contest its takedown requests. Establishing an independent oversight board that includes representatives from the ministry, private ESOs and civil society to resolve content interpretation and disputes is also worth considering.

Most importantly, in order to protect freedom of speech in Indonesia, the government should not be the only party in charge.

The writer is a researcher at the Center for Indonesian Policy Studies.