Hoax and How Democratic State Should Response?

Government of Indonesia had recently issued statement saying that it will repressively act against anyone who spread hoax online. The statement was made following the massive spread of hoax, particularly through social media platform. The same response is also taken by government of some countries in terminating the massive spread of hoax, such as government of Germany, France, Myanmar, Italy, Brazil, and Australia.

General Comment No. 34 International Covenant on Civil and Political Rights, which has been ratified by Law No. 12 year 2005, mentions the responsibility to guarantee any form of opinions without third party interference (Article 19 Paragraph 1). It is an absolute duty that has to be implemented by the government. Restriction of opinion is also prohibited, regardless how offensive it is or if it uses wrong facts, as far as it could not be proven that it has the potential to harm public interest. The restriction for freedom of opinion (Article 19 Paragraph 2 and Paragraph 3) with the legal approach is only allowed if the expressions or opinions stated are considered as threats, hatred propaganda, or incitement toward certain religion, ethnicity, or group (Article 20 – prohibition of hate speech).

However, the massive spread of hoax still gives serious consequences on promoting and enforcing human rights in the democratic society. In the United States of America, the restriction to any kind of information online is prohibited by federal law, yet it is still legitimate if based on over-the-top providers, such as search engine or social media service provider in the context that the spreading of hate speech is within the term of service regulation. This action is taken by filtering, blocking, or banning the access to the information or to the account of particular social media. Meanwhile, German government plans to issue fines to the online companies which are considered careless in anticipating the spread of hoax in their domains. German government plans to set a maximum 500.000 euro or more than 7 billion Rupiah. The actor behind the spreading of hoax on internet is also planned to be charged 5 years maximum in jail. This plan is still discussed in the German Parliament.

Up to this date, the actions taken to anticipate the impact of hoax are mostly initiated by internet service provider. Facebook and Google, for example, are some companies that actively respond to the spreading of hoax in their networks. Last September, the well known over-the-top companies including Amazon, Facebook, IBM, Microsoft, Google, and DeepMind created Partnership on Artificial Intelligence to Benefit People and Society, in order to develop research on artificial intelligence for contributing in ethic, transparency, accountability, and reliability of the use of artificial intelligence in the society, as well as to prevent hoax that has a potential to harm the society trust in artificial intelligence.

Anticipating hoax and its harmful impact in the society could not merely by using legal (repressive) approach. If this approach is the main support of law enforcement toward the spreading of hoax, then the government of Indonesia has the potential to violate the commitment of honouring, protecting and fulfilling the human rights as mandated in The 1945 Constitution and International Covenant on Civil and Political Rights. Covenant Standard affirms that an opinion could not be restricted, especially through legal process, simply because hoax contents. Government of Indonesia should realize that hoax issues could only be resolved with the participation of the society in supporting the media / digital literacy as well as law infrastructure and accountable, reliable and transparent policy.

By considering the situation mentioned above, Institute for Policy Research and Advocacy (ELSAM) emphasizes that Indonesian Government to evaluate all related laws and policies and the internet technologies, so that they could be compatible and in accordance with the human right principles. Thus, it is expected that the existing laws could provide appropriate response on each innovation and development of internet technology. Internet itself is not a crime instrument to be worried, but rather it is a mean to create innovation and opportunities. Therefore, government needs to prepare the proper regulation to regulate its usage. The law to be prepared should not be either too restrictive or violates the freedom of opinion and expression which is the essence of the democracy.

Besides supporting in law architecture improvement, ELSAM also supports Indonesian Government to prioritize the policy which is related to the improvement of media / digital literacy in the society by involving the whole related ministries / institutions. In addition, ELSAM also establishes cooperation with various stakeholders to anticipate the spreading of hoax online. [ ]

Jakarta, 6 January 2017