ELSAM, Jakarta- Internet content blocking practice in Indonesia always causes a polemic. One of the causes is the unclarity of the regulation on the authority of blocking mechanism. Ministry of Communication and Information (Kominfo) created a Trust+Positif database as a list of blacklisted sites banned by government. Further, they will instruct every internet service provider to block the sites selected in Trust+Positif. Using the pattern and method, there are absences of law in terms of authority, and it will potentially misblocks.
In responding this, Institute for Policy Research and Advocacy (ELSAM) currently conducts a study to prepare a policy input for human rights based mechanisms of governance and content blocking. As part of the study, ELSAM held a focused group discussion to conduct mapping on the problems and potential improvement for the policy. The discussion was held on 10 May 2017 in Artotel Jakarta. The discussion titled “Formulation of Diagnostic Study Design of Internet Content Governance in Indonesia” was attended by representatives from law enforcement apparatus, CSOs, government (Ministry of Communication and Information), and business sectors.
During the discussion, Anggara from ICJR analyzed the essential meaning of access disabling or content blocking in terms of law theory. He said that internet accessibility is a material right. “The question is whether the users’ access or content which is blocking. This is closely related to the concept of material right in the law context. Is it possible to only limit the access from content providers? According to ELSAM’s explanation, what is limited is the users access’ by the ‘take down’ mechanism,” Anggara said in the forum.
According to Muhammad Yamin from Nawala Nusantara, ‘take down’ mechanism is very broad. It starts from the domain deletion or content filtering. “Due to content filtering, there will be an initial process, that is, selection of both accessible and inaccessible contents. While the blocking is the final step of filtering. What has happened is the direct blocking as if there is no initial process,” Yamin explained.
The problem is about the legal basis of blocking authority. According to Yamin, Ministry of Communication and Informatics Regulation on Negative Content Sites Handling (Permen No.19 year 2014) contains the appropriate procedure but the implementation is not as specified. Therefore, if a new regulation is established, it has to clearly specify the procedure and implementation.
“If regulated in PP (Government Regulation), the complexity will be diverse since it does not consider another PP which regulates similar issue. If it has to be the derivative of Copy Rights Law and Pornography Law, PP related to blocking will produce a PP which is derivative under both Laws. This will be even confusing,” Anggara said.
Beside authority and procedure legal basis, it also needs restriction of which contents can be blocked by official authority. In the context of international standard and human rights, the restricted contents should be those containing hate speech and child pornography as well as hoax which is currently happening in Indonesia.
In the process of blocking as a detention of criminal act, government often blocks the sites without further process against the site creator. Therefore, those suspected can create new sites. “The directorate’s working principle currently is to block the site. However, if that is a criminal act, principally the person must be punished. Therefore, after the blocking, the actors must also be arrested. Such thing must be inseparable,” Himawan from Cyber Crime of National Police’s Criminal Investigation Department explained.
Due to the effectiveness and independence of the mechanism to restrict the enjoyment of internet right, there is a question whether or not an independent institution which has uthority to conduct blocking is needed. Government should only be the executor (to conduct the blocking) of another party. However, there should be another body such as court, or ministry or institution to conduct evaluation whether or not a site with certain content can be blocked.
“Kominfo’s authority must be determined if the blocking can only be carried out by government. Don’t let Kominfo also take part in the evaluation. The evaluation must be carried out by a more independent and transparent body so that there will not be an abuse of power. Thus, there should also need a reparation mechanism for the parties whose sites are blocked through procedure which are not pursuant to law,”Arfi from Independent Journalist Alliance (AJI) Indonesia explained.
The moment of policy reform departed from the ammendment of Electronic Information and Transaction Law (ITE Law) issued in November 2016, which affirms that blocking mechanism should be regulated in one law.