ELSAM Press Release
UU ITE is a threat to the freedom of opinion and freedom of expression; it is urgent to revise
Law No. 11 of 2008 on Electronic Information and Transaction (UU ITE) is the legal instrument regulating all aspects of information technology and communications in Indonesia. It contains stipulations on electronic information and documents, electronic transaction, implementation of electronic certification, intellectual property rights and personal protection, wiretapping, criminal and administrative sanctions, and various other aspects related to the actors and objects in the field of information technology and communications. The regulations posed in UU ITE seem to be a mishmash of various legal norms, whose regulation could have been done in separate legal instruments. As a consequence, the aspects of regulation in UU ITE lack coherence between one article and another. To add to the problem, the many aspects that the law intends to regulate result in lack of in-depth understanding of the legal norms; mostly touching only the surface.
Due to the situation, at least two crucial problems arise with regard to the content of UU ITE. First, as a legislation that purports to be the basis for regulating the utilisation of Internet technology, UU ITE has failed to be a comprehensive guideline for the traffic of Internet content. The stipulations in UU ITE tend to focus on the criminalisation of material acts. Issues such as criminalisation of negative content have not been accommodated by the law, despite the pressing need for them. As a result, technical/ministerial regulations arise, which should not bear the burden of such level of legal norms.
Second, in the articles related to criminalisation, whose regulation is based on the awareness that the Internet cannot be separated from the potential of criminal acts, because the Internet facilitates traffic of human activities as in real life, as a result, the policy makers seem to have miscalculated the impacts of the formulations of legal norms when implemented in practice. This miscalculation later results in irregularities such as the harsh sanctions, duplication of crime, resulting in a flexible use of criminal sanctions that in turn results in suppression of the freedom of opinion and freedom of expression of citizens. It is ironic that while the law was created to uphold and protect human rights, it ends up violating human rights itself.
In light of the conditions, ELSAM considers it important to immediately amend UU ITE, due to the following considerations:
- A change of paradigm in policy making, which places the right to access the Internet as a part of human rights, and thus all principles of human rights protection must also be referred to in creating policies related to the Internet.
- In the context of criminalisation, it is important to review all articles related to criminalisation, and remove all duplications of criminal violations in UU ITE, as they have been regulated in the Criminal Code. It is also important to consider the suggestion to remove the criminalisation of libel and/or defamation.
- In relation to the practice of Internet content blocking, many parties have regarded this practice to be inherently flawed, as it has always resulted in greater impacts than the intended goals. In order to ensure the goal of protecting human rights, amendment to UU ITE has to specifically provide a space for content regulation that considers three elements to test: (i) the act of blocking content has to be regulated by a clear law, and can be accessed by everyone (the principles of predictability and transparency); (ii) the act has to be in fulfilment of one goal regulated in Article 19(3) ICCPR, namely to protect the rights and reputation of another party; national security or public order, or public health and morals (the principle of legitimacy); and (iii) the act has to prove that there is an urgency and done minimally (mechanism of the last resort) to reach the main goal (the principles of importance and proportionality). Besides, the authority to perform all these acts must be awarded to a body independent from political and commercial interests or institutions that do not have the authority, being impartial and not discriminative. There should also be protection from misuse, including possibility of complaint and restitution to misuse of blocking.
- Along with the strengthening of the Indonesian Internet Governance Forum, it should follow that decision makers use the multi stakeholder approach in the process of decision making. In the model, not all decisions related to the Internet should be taken by a single party/authority, but all stakeholders, such as the government, business sector (service provider), technical groups, civil society organisations, including Internet users, should be involved.
Jakarta, 16 October 2014
Institute for Policy Research and Advocacy (ELSAM)
Indriaswati D. Saptaningrum, S.H., LL.M.
Inclosed a summary of the study results from ELSAM about implementation of UU ITEELSAM-Research-Report-Summary