Amendment Draft Law on Information and Electronic Transaction Law Violates Freedom of Expression

The aim to have legal protection for complete internet governance has failed. Revision of Information and Electronic Transaction Law which should have been the changing momentum to create regulation of technology usage that based on human rights, yet in the reality it limits the activity online. Although has gone through two working meetings and five working committee meetings of DPR commission 1, the discussion of Amendment Draft Law on Information and Electronic Transaction Law still has the potential to violate the freedom of expression of internet user and a setback in criminal procedural law.

As one of the regulations to regulate internet governance in Indonesia, Law of Electronic Information and Transaction (UU ITE) still creates problems. Since ratified as a Law, UU ITE has been applied to criminalize 200 internet users for violation Article 27, Article 28 and Article 29 of UU ITE. Therefore, the amendment process which is initiated by the government (particularly Ministry of Information Commission) could be a stepping stone to create comprehensive internet regulation including the boundaries of the legit and proportional rights in accordance to principles of human rights.

However, amendment points draft law on UU ITE has not fully meet the needs and supports on information and digital technology development. The final result of the amendment is not yet capable to answer the main problems resulted from today UU ITE.

ELSAM, LBH Pers, ICJR as civil society groups that support digital democracy criticize the following points on amendment of UU ITE:

First, maintaining Article 27 paragraph 3 on Defamation means perpetuating the threats for freedom of expression. The Article which is considered over-criminalized yet still included in UU ITE. This revision has not made substantial amendment related the explanation that differ the phase of “distributing, transmitting, and making accessible “also the phrase “that content insult and / or defamation “.  Although it has been emphasized that this Article is a complaint refers to Article 310 and Article 311 Criminal Code, procedurally it still creates errors due to the threats differences between those two regulations are very significant. Despite the fact that the amendment of UU ITE has reduced the penalty to four years in order to prevent direct arrest, it still worse compared to the penalty of maximum 9 months in prison which regulated as defamation in Criminal Code. Besides, the Criminal Code itself is still in the process of amendment in DPR.

Second, the duplication on racketeering and threat. In the amendment draft law on UU ITE, there are two clauses that related to racketeering and threat; Article 27 paragraph (4), and Article 29, of which they both have similar conditioning actions. Although the amendment emphasizes to refer to the provision in Article 368 and Article 369 Criminal Code, substantially Crime Code still covers the crimes conducted online. The amendment which reduces the sentence to 4 years also has not solved the problems because in Criminal Code it was stated that the maximum sentence for racketeering is 9 months in prison and 4 months for threats.

Third, setback in Criminal Procedure Law especially in the process of arresting. The idea to harmonize the arresting procedure based on criminal law in UU ITE could not be implemented due to the amendment of Article 43 paragraph 6 of UU ITE. The amendment obstructs the improvement of criminal law which obligates the investigator to get the initial official confirmation from District Court through public prosecutor. By eliminating this provision, then the chance of having arbitrary arrest by law enforcement officer is wide open.

Fourth, clear definition of cyber bullying in Article 29 paragraph 4. UU ITE amendment includes cyber bullying as a crime which is regulated in Article 29 paragraph (4). Although this crime is a form of cyber crime in Budapest Convention, yet the definition has to be clearly described. Therefore, the discussion that is closed from public monitoring creates the possibilities that the provision regarding cyber bullying is not in accordance with lex certa, lex strictica, and lex scripta principles which causes misinterpretation and arbitrary usage.

Therefore, ELSAM, LBG Pers, and ICJR suggest that final amendment draft of UU ITE has not provided legal protection as a solution for using internet in Indonesia. The revision of UU ITE should be able to be a legal umbrella to regulate all aspects of information technology and communication in Indonesia including human rights protection in online scope. For example, by providing regulation on internet content management with the principles of human rights such as the delegation of personal data regulation and protection as well as communication interception.

Next, this regulation is supposed to eliminate all forms of duplication of law regulation particularly defamation, and give the regulation back to the Criminal Code in conjunction with the ongoing Criminal Code Reformation in DPR.