Wednesday, January 04, 2017

Pros and Cons of Amendment to the ITE Law

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Marcell Sihombing, Rofiq Hidayat/CR21


A discussion for the Amendment of ITE Law organized by Hukumonline. Photo by: ALV.


Since its enactment almost a decade ago, Law No. 11 of 2008 on Information and Electronic Transactions (ITE Law) has resulted in convictions against numerous internet users, commonly referred to as “netizens”. Most of these convictions have been secured following violations of Article 27 (3) of the ITE Law.
The most prominent example is the well-known case of Prita Mulyasari. In 2009, Mrs. Mulyasari was put on trial under defamation allegations after she wrote an email that made complaints against Omni International Hospital. The email ultimately became public and went viral on the internet. In this case, Mrs. Mulyasari was faced with criminal sanctions of six years imprisonment and/or a maximum fine of IDR 1 billion. Her case attracted the netizens’ sympathies and led to a fund-raising activity titled “Coin for Prita” in order to pay for Mrs. Mulyasari’s fine.
Ever since, many petitions have been filed to the Constitutional Court (MK) in order to review the obscurities regarding provisions of the ITE Laws, and which tend to incriminate netizens. As a result of MK Decisions on these petitions, it was necessary for a number of changes to be made to the ITE Law. To accommodate these changes, the government proposed for revision of ITE Law, which eventually resulted in the issuance of Law No. 19 of 2016 on the Amendment to the ITE Law (Amendment).
Despite issuance of this Amendment, however, many parties consider that the direction of government policy with respect to law and human rights has deteriorated. Lawmakers from the House of Representatives (House), however, firmly maintain that the Amendment is sympathetic to citizens who are being tried on cyber defamation charges, such as by restricting the circumstances under which they may be placed under police custody during investigation.
Venturing his opinion, Lawmaker Sukamta from Commission I of the House stated that the policy choices incorporated under the Amendment are aimed towards shaping a proper and civilized nation. To realize this particular objective, the Amendment sets its focus from two main points of view: that of the public, and that of the government. 
From the public’s perspective, the Amendment aims to ensure the right of freedom of speech, provided that the said right is exercised in a polite and civilized manner, so that netizens may access a healthy internet environment. Indeed, the right to freedom of speech is guaranteed under the 1945 Constitution and prevailing laws and regulations. However, the Amendment makes clear that the enjoyment of this right must not involve unruly behavior, or worse, targeting specific individuals with lies and fabricated truth.
From the Government’s perspective, the Amendment strives to ensure that law enforcers may not arbitrarily place any cyber defamation suspects, or any individual who expresses his/her opinion against the government’s policy, into prison. Moreover, the Amendment also provides that such suspects or individuals will only be taken into custody if convicted.
As explained by Lawmaker Evita Nursanty at Commission I of the House, the Amendment now lowers the maximum imprisonment sentence for defamation to four years. As such, because Article 21 (4) Point “a” of the Criminal Procedural Code (KUHAP) only requires custody for perpetrators of crimes that are subject to a five year imprisonment or more, violators of the ITE Law can only be taken into police custody until a final and binding decision has been secured.
“Should police investigators feel the need to put a suspected perpetrator under custody, it must be supported with an official warrant issued by a court,” asserted Mrs. Nursanty.
The Amendment was Propelled by Growth in Social Media Usage
Rudiantara, the Minister of Telecommunications and Information Technology, also ventured an opinion regarding this matter. Minister Rudiantara considered that growth in social media usage has demonstrated how certain provisions under the ITE Law impair freedom of expression and speech, due to the potential for multiple interpretations and/or overlap with the provisions of other laws to facilitate allegations of violation to be made.
“Due to various dynamics involving pros and cons against several provisions stipulated under the ITE Law, the government has taken the initiative to incorporate minor revisions that are considered necessary and relevant [in the form of an amendment],” asserted Minister Rudiantara.
Thus, after going through a lengthy process since 2015, the government and the House finally agreed to pass the Amendment into law last October. The Amendment itself comprises of revisions to eight articles of the ITE Law, as well as the incorporation of two additional provisions thereto. Details regarding the Amendment are as described in the table below:
Article/Provision Forms of Amendment/Revision
Article 1 Incorporates one additional clause stipulating the definition of “Electronic-System Organizers.”
Article 26 Incorporates three additional clauses concerning obligations of Electronic-System Organizers and procedures for the erasure of electronic information and/or documents (the so-called “right to be forgotten”) that will be further regulated under a separate government regulation.
Article 31 Amends the provisions of Article 31 (2) and (3) as regards interception and wiretapping.
Article 40 Incorporates two additional clauses that amend the provisions of Article 40 (6) and the Elucidation to Article 40 (1), which regulate the government’s obligation to prevent any dissemination and utilization of electronic information and/or documents containing prohibited contents as specified under prevailing laws and regulations, as well as the government’s authority to block access [to these kind of electronic information and/or documents].
Article 43 Amends the provisions under paragraphs (2), (3), (5), (6), (7), and (8), as well as incorporating one additional clause. In general, this article regulates provisions concerning the investigative powers of government officials, as well as the implementation of their duties and their responsibilities.
Article 45 Amends the maximum criminal sentence for violating Article 27 (3) of ITE Law on defamation or humiliation/insult, as well as clarifying that defamation is now classified as a complaint-based crime.
Article 45A and 45B Incorporates two additional articles relating to sanctions for spreading misleading information or hate speech, as well as for making threats.
Elucidation to Article 5 Amends the elucidation to be in accordance with MK Decision relating to the status of electronic information and/or documents aslegal evidence and the mechanisms to obtain such evidence.
Elucidation to Article 27 Amends to the elucidation regarding the words “distributing” and “transmitting” and the phrase of “making accessible”, as well as reaffirming that the provisions on defamation and/or fabricated lies, blackmailing and/or threatening must refer to provisions under the Indonesian Criminal Code (KUHP).
Minister Rudiantara strongly hopes that the Amendment will be able to provide [greater] legal protection for the general public.
“On the other hand, the general public is expected to be smarter in utilizing the internet, to maintain ethics while communicating and disseminating information, as well as avoiding any contents related to ethnicity, religion, race, and inter-group relation [suku, agama, ras, dan antar golongan – SARA], radicalism, and pornography,” said Minister Rudiantara.
Commenting on this matter, however, Supriyadi W. Eddyono, the Executive Director of the Institute for Criminal Justice Reform (ICJR), considers that the government’s policy direction as regards human rights is very grim, specifically in relation with the impairment of freedom of expression and speech stipulated under the Amendment.
“The course of the revised policy is totally obscure, especially in relation to freedom of expression and speech,” said Mr. Eddyono.
Mr. Eddyono further pointed to the fact that the enactment of regulations on freedom of expression and rights to access information tend to lead to greater restrictions. Highlighting the provisions regarding content-blocking and ‘right to be forgotten’, Mr. Eddyono is of the belief that the government’s intention is to constrain public access to information through the internet.
Mr. Eddyono went on to conclude that the Amendment reflects deterioration, notan improvement to government protections of internet freedom.  Not only does the Amendment fail to go far enough - for instance, instead of only lowering criminal sanctions, Mr. Eddyono had expected the government to simply delete Article 27 (3) of ITE Law, but it also provides extensive government authority to make exclusive decisions concerning online content without the possibility of review. Mr. Eddyono deplores the new and extraordinary powers that the Amendment confers on government to block content posted online. This is particularly concerning given that under the regulation, Government decisions as to whether or not to exercise such powers may take place behind closed doors, and the government is not obligated to provide any public access to the deliberation process.
“We [ICJR] criticize the closed-door deliberation process, which enables the government to trick revisions [to ITE Law]. Apparently, freedom within the cyber realm is potentially violated by the [amended] ITE Law,” Mr. Eddyono concluded.
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