ID-IGF: Intermediaries’ Responsibility and Indonesian Policy Direction

ELSAM – Jakarta. Institute for Policy Research and Advocacy (ELSAM) again took part in the workshop of law and regulation baskets in ID-IGF (Internet Governance Forum) in Jiexpo Kemayoran on 27 October 2017. The title of law basket in the second session is ’Intermediaries’ Responsibility in Using Internet Technology: Policy Direction in Indonesia.’ 

Intermediaries’ responsility has been widely discussed in the global context including in Indonesian digital transformation. However, the definition of intermediary itself has not had its own meaning or consistent concept. Therefore, it is still difficult to determine its responsibility, and still in the search for appropriate  format.

The law basket was represented by three panels of society, government and academician, namely, Adzkar Ahsinin, ELSAM’s senior researcher, Sinta Dewi from Law Faculty of Universitas Padjajaran, and Semmy Pangerapan of Directorate General of Informatics Application of Ministry of Communication and Information (Ditjen APTIKA Kominfo).

Focus of the discussion was in the definition of intermediaries, and corporation participation considered as intermediaries to fulfil their responsibility, as well as the sanction for neglecting the said responsibility.

As a starting, Adzkar tried to explain the definition of intermediaries. “In brief, intermediaries play role to give access, accomodate and transmit from the third party; in human rights context, internet intermediaries have important role in digital ecosystem,” Adzkar said.

Intermediaries have the responsibility mutually exclusive to human rights. “We need corporation’s responsibility which is exploitative to local parameter (localizing human rights), and needs state consideration to put an action to,” Adzkar continued.

Such thing is urgent considering that corporation can also be identified as the actor of human rights violations, likely a state. Therefore, it is an obligation to concern on the guideline principles of business and human rights which regulate the state obligation to protect, and to involve corporation in the responsibility and respect to human rights.

According to Sinta Dewi, the issue about corporation being the responsible party in respecting human rights has developed in several other countries with different legal systems.

“The practice of comparative study on regulations of different legal system should be the consideration when formulating the regulation in Indonesia. For example, Europe with its Co-Regulation will be different from United Stated which adopted Self-Regulation. It is also different from  China with Direct-Regulation system,” she said.

The identification of best practices executed in any countries with those various system is necessary to accomodate the interests of all parties. Thus, Indonesia can find the most appropriate mechanism to apply in the country.

Unfortunately, the current pattern applied by government is Direct-Regulation as in China. “Government recently executes the pattern in which the regulation and legal action tend to imitate China with its assertive rule using “banning”. Meanwhile, the blocking of contents considered as violating the prevailing provision standard can affect the right of freedom of expression,” Sinta added.

To respond, Semmy Pangerapan stated that Kominfo used the provision of ‘banning’ and not filtering. The banning is through the form of blocking in internet. Another is, the legal basis used by Kominfo is positive law prevailing in Indonesia, spreading into several regulations as the basis to identify the restricted contents. In practice, thus, there will be a coordination across institutions other than Kominfo to follow up the blocking ban.

“The form of banning is an affirmative sanction through a blocking. The content blocking by government will always be by a coordination to work together and not work solo. Kominfo will only be able to directly block the contents related to pornography and gambling, and terrorism,” Semmy explained.

Semmy also added that the responsibility was borne by government as the monitor of intermediaries. Moreover, society must also be provided with digital literacy so that they will participate in the responsibility.

“The responsibility is not only in the corporation and government’s hands, but society must also deepen their digital literacy. If the literacy is growing, any prohibition in the regulation of digital world will be decreasing,” Semmy concluded. []