Actual Challenge Unmet, ITE Law Revision (Still) Potentially Violates Freedom of Expression

After getting massive urge from the public regarding various issues that emerged in the implementation of Law No. 11 / 2008 on Electronic Information and Transaction (ITE), DPR together with government eventually on October 27th agreed on the amendment of some articles in this Law. Unfortunately, the final amendment is far from public expectation; also it could not solve the actual challenge in the use of internet technology today.

The law is indeed always behind the rapid technologies development and innovation. Therefore, law acceleration is required, as well as other architecture supports, such as social and technology, in order to meet internet needs. Within this context, law should be able to bridge various architecture that support the use of internet, as well as bridge to transform the challenge from the initial offline (conventional) challenge, to online challenge (in the network). However, the revision of UU ITE that has been approved by DPR has not met the needs. As ELSAM’s researcher, Wahyudi Djafar, mentioned, “ This revision is only tactical, it does not reach the issues and primary needs from a Law that regulates internet.”

 This tactical revision does not solve main issues of UU ITE, which could be seen from some agreed points, such as:  (1) ambiguous formulation which regulates internet content, to the extent of only granting authority to the government to block the access; (2) new formulation emerged, such as the right to be forgotten, without equipped with adequate condition and procedure; (3) the issues in crime regulation that unable to reduce the violations of freedom of expressions, especially the criminalization on legitimate expression.

In the revision (Article 40), there is a new material of government authority to block the prohibited negative content, including the authority to give order to internet service provider (ISP) to do the same thing. This formulation seems to only legitimize the existence of Minister of Communications and Informatics Regulation (Permenkominfo) No. 19 / 2014 about the Regulation of Sites with Negative Contents. Grant the absolute authorization to the government to block the access is also politically dangerous, considering high possibility of the abuse of power. Besides, this formulation is also far from human rights standard in the context of blocking internet content, of which the clarity of scope of prohibited context is required; as well as the procedure in the content restriction, including recovery mechanism; and the authority should be granted to an independent institution, free from political and economic interest.

In addition to that, the new regulation inserted in Article 26 regarding eliminating irrelevant information is also far from the right to be forgotten principle. Within this context, every policy to eliminate personal data, not only have to be decided by court, but it also should be synchronized with the minimum standard of data erasure, which are; everyone needs to be told initially about the data erasure and should be given the chance to appeal for the data erasure decision; personal data erasure should be restricted to the regulation regarding types of personal data that could be legally deleted, while the related service provider, public authority, and court have to make a transparent report regarding the decision on personal data erasure. These conditions are not mentioned in the formulation, thus this Article gives the impression that it has political interest. In a country with high impunity, such as Indonesia, this regulation would only be used by particular groups to eliminate their personal track record for the allegation of various cases, such as human rights violation cases. In addition to that, there is also lack of understanding about which data is categorized as personal data and which is accessible to public. This formulation also makes it harder for the public to access the track of record of the political contestants whom they are going to vote since there is a possibility that they also will delete some of their track of records in the past.

Regarding the crime regulation, particularly defamation, government and DPR also fail to provide legal certainty by fully eliminating the regulation on defamation in UU ITE (Article 27 paragraph (3)), and give it back to the Criminal Code. Considering that DPR and government have an ongoing RKUHP of which the process is at the stage of Book II.  The main issue on Article 27 paragraph (3) could not be solved simply by reducing the sentence from 6 years in prison to 4 years, and 1 billion Rupiah fine to 750 million rupiah. This is due to the main issue is in the legal uncertainty of the regulation, considering that public is also regulated by the same regulation in the Criminal Code.

By looking at this situation, it is obvious that government and DPR are still unable to integrate various commitments and human rights principles in UU ITE. It also shows the impediment of the policy maker in responding to the rapid development of internet technology. Thus, the response given is tactical and does not solve the main issue. “ with this revision, later UU ITE would not only unable to reduce various issues that emerge today, such as criminalization on legitimate expression, but it also potentially give threat to freedom of expression in Indonesia, particularly the right of information which we could just enjoy in the last few years, “ said Wahyudi Djafar.