Amendment of Law on Electronic Information and Transaction (UU ITE) still potentially threat Freedom of Expression

ELSAM, Jakarta –Governor of DKI Jakarta, Basuki Tjahaja Purnama aka Ahok has been named suspect for blasphemy case. He was accused of violating the Article 156 a KUHP juncto Article 28 paragraph 2 Law No 11 Year 2008 on Electronic Information and Transaction (UU ITE). Furthermore, Buni Yani was also named suspect using article 27 and 28 on spreading hatred related to SARA (ethnicity, religion, and race) in UU ITE. After being enacted in 2008, UU ITE has frequently victimized due to multi-interpretation. According to SAFENet data, from 2008 to November 2015, there are 118 netizens being the victims of UU ITE. In 2015, ELSAM recorded that there are 47 victims accused using the Law. More interestingly, according to Remotivi data during 28 August 2008 to 23 August 2016, of the total 126 reports, 50 cases reported by the state apparatus, namely, head of region, local legislative member, judge or prosecutor and law enforcement officers. UU ITE is also utilized by the professionals and business actors. The frequent reason is insulting to the state officials. Besides, other accusations such as corruption and violence also become the strong reasons why they reported. Such reports mostly targeted at NGO activists, journalists and public in general. In conclusion, from the data, UU ITE is mostly used by those having power, whether they have positions, political power or capital owner.

The problem in UU ITE itself is that it frequently is used out of its portion, especially article 28 paragraph 2 and article 27 paragraph 3. Those articles are often being misused by the complainant to punish someone for the blasphemy or defamation.

Therefore, several CSOs attempted to urge government and House of Representative to amend the UU ITE. The amendment would also answer the actual challenge in the recent internet technology usage. Thus, it would need legal acceleration and other architecture support such as social and technology in order to answer all the needs in internet use. Law should be the bridge of the various architectures which support the internet use as well as the transformation of challenges which were previously offline (conventional) to be online.

On 27 October 2016, the amendment of UU ITE was finally been executed by government and the House by agreeing the amendment of a number of articles. However, the amendment which began to prevail on 28 October 2016 was far from public expectation. The amendment or revision of the Law was seen even as patchy without addressing the problems and basic needs of law which regulates internet.

The patchy revision can be seen from the following materials, inter alia,: 1) the ambiguous formulation which regulates the internet content through only being limited to the authority to block the access for government; 2) the new formulation such as right to be forgotten, without being completed with adequate requirements and procedure; 3) the problem in regulating the criminal which has not been able to minimize the violations of freedom of expression, especially the criminalization to legitimate expression.

The material of amendment of UU ITE (Article 40) has inserted new material regarding with government authority to conduct access blocking to the forbidden internet contents, including to give order to Internet Service Provider (ISP) to do so. Instead, the formulation of the Law gives legitimacy to the existence of Ministry of Communication and Informatics Regulation (Permenkominfo) No 19 Year 2014 on the handling of negative content internet sites. The absolute authority given to government to conduct access blocking is politically dangerous considering the bigger potential in the abuse of power. In addition, the formulation was also far from human rights standards in blocking the internet content, which demands on the clarity of content demarcation which can be restricted; procedure in restriction, including the remedy mechanism; and the obligation to give the authority to an independent body being free from political and economic interests.

Another issue is in the insertion of new provision in Article 26 related to the elimination of irrelevant information. Such formulation was far from the principles of right to be forgotten which should be obtained through court ruling. In addition, the policy to omit the personal data should be pursuant to the minimum requirements of data erasure, in which the person should be informed about the action of data erasure and given  chances to file objection on the ruling of data erasure; personal data erasure should be limited to the determination of legitimate personal data to be omitted, and the related service provider, public authority and court should report it transparently on the rulings related to the erasure of personal information. The absence of the previously mentioned formulation showed the impression that the article was loaded by political interest, particularly to diminish the track record of the information regarding to the persons allegedly committed to human rights violations or other crimes.

Meanwhile, regarding to the provision on criminal, especially defamation, government and the House have failed to present the legal certainty because that article is specified in both UU ITE and Penal Code (KUHP). Therefore, the article on defamation in UU ITE (Article 27 paragraph (3)) should be omitted and the regulation should be returned to KUHP.

In conclusion, the amendment of UU ITE produced by government and the House has not been able to respond to the new development in the rapid internet use. Moreover, the material of UU ITE potentially threat the freedom of expression in Indonesia, particularly right to information which we enjoyed these couple years. [ ]