Anti-climax of Amendment of UU ITE still Violates Freedom of Expression

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ELSAM, Jakarta –The amendment of Law no 11 Year 2008 on Electronic Information and Transaction (UU ITE), enacted on 27 October 2016, again limited the activities of civil society online. The initiative from government, which should have been the momentum to return UU ITE as a human rights based internet regulation, in fact still potentially violates the freedom of expression as well as is the setback of criminal procedural law.

Though Commission 1 of House of Representative has conducted working plan meetings twice, and committee meetings five times, Bill on Amendment of UU ITE has not fully answered the needs and supports for the growth of digital information and technology. One of the reasons is that the catchall article which becomes the instrument to criminalize the expression of the citizen still exists. The amendment did not answer the core problems, as specified in the phrase in the Article “distributing, transmitting and enabling the access.” Though the defamation sentence has been reduced to be 4 years in order to prevent the detention, it is still considered as heavier that maximum sentence of 9 months as regulated in KUHP.

The ambiguity also exists in the regulation related to internet content governance. Amendment of UU ITE only mentioned that government is given the authority to access blocking. The forementioned was specified in Article 40 of the amendment material which stated that government has the authority to do access blocking to the forbidden internet content, including to give order to the internet service provider (ISP). It indicates that it is only limited to give legitimacy to the Ministry of Communication and Informatics Regulation (Permenkominfo) No 19 year 2014 on handling the negative content internet sites. Meanwhile, the absolute authority given to government becomes very vulnerable to the misuse of power which can influence the accessibility of right to information and expression of the internet users in online world. Other than that, the formulation did not define the clarity of mechanism to limit the internet contents such as procedure, remedy and also the obligation to give authority to the independent body free from political and economic interests.

Moreover, the fallacy in the amendment of UU ITE was showed in the provision of information erasure or right to be forgotten in Article 26. Instead of applying the principles established in European Union and Argentina in 2006, the article did not even apply the basic provision or requirement of the said principle. For instance, the obligation through court ruling, and policy which is pursuant to the minimum requirement of data erasure such as: the person should be informed about the action of data erasure and given  chances to file objection on the ruling of data erasure; personal data erasure should be limited to the determination of legitimate personal data to be omitted, and the related service provider, public authority and court should report it transparently on the rulings related to the erasure of personal information. The absence of the ideal mechanism in the application of right to be forgotten potentially leads to the abuse of the article for political interest. In the country with high impunity like Indonesia, the article will only be misused by certain groups to diminish the track record of personal information regarding to the persons allegedly committed to past human rights violations or even corruption.

According to Wahyudi Djafar, ELSAM’s researcher, the above revision result has showed that government and the House which own the authority to law making has not fully been able to integrate any commitments and principles of human rights especially in the material of UU ITE. This also showed the impediment of policy makers in dealing with new development and rapid internet use.

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