How Indonesia’s problematic internet law will impede freedom of expression

Those who have been listening in to Indonesia’s tech scene in the last two weeks would by now have heard the name Florence Sihombing, an Indonesian citizen in Jogjakarta. She is involved in the highly disputed case involving the UU ITE (regulation about electronic information and transaction) in Indonesia. The law – which was established in 2008 – regulates citizens’ conversation online, and lets anybody charge anyone for making them “feel offended”. Indonesia is a democratic country with a constitutional amendment guaranteeing the freedom of expression. But the existence of the ITE law contradicts the amendment.

Sihombing’s case is one of many incidents showing how the ITE law can be broadly interpreted. We will also look at other cases related to the legislation which shows the law enforcers’ lack of understanding when dealing with these issues. Before we go any further, let’s look at some recent cases for context.

The Florence Sihombing case

Sihombing is an Indonesian who called Jogjakarta people “poor, stupid, and uncultured” on private social network Path. Somebody took a screenshot of it and shared the status on public social media like Facebook and Twitter. Jogjakarta people showed their discontent regarding Sihombing’s status and bullied her online.

#UsirFlorenceDariJogja was the worldwide trending hashtag used to make Sihombing notorious on Twitter. It means “evict Florence from Jogja”. The situation became worse. A few local NGOs took the case to the police by filing a lawsuit against her under the ITE law. They believe that Sihombing should be found guilty for causing “insult, defamation, and provocation”. Sihombing has since issued a public apology. And even when the numerous NGOs said they have forgiven her for it, they are still continuing the criminal charges against her. A similar incident also happened in Bandung recently.

Ridwan Kamil, a respected mayor of the city, filed a lawsuit against Twitter user Kemal Septiandi. The latter basically made childish, nasty references to Kamil and Bandung cities, using words like “fuck” and “whore.” But do Sihombing’s and Septiandi’s online rants (one of which was essentially private) warrant them being charged like criminals?

Other problematic cases

Southeast Asia Freedom of Expression (SafeNet Voice), a movement that promotes the freedom of speech in the region, has been following the issue surrounding Indonesia’s ITE regulation. While they believe it is needed to regulate the online world, the law has a few loopholes to be fixed.

1. It’s unclear if violations of the ITE regulations should fall under civil or criminal law.

Because defamation can become either a civil and criminal dispute in Indonesia, the government needs to draw a clearer line. Australia, for example, rules that any instances of defamation that harm an individual should be considered a civil offense. When the incident affects the community, like endangering the public peace, then it can be considered a criminal offense. Because the parameter is yet to be clearly defined in Indonesia, there have been a few small incidents which should’ve ended up as civil disputes rather than in the criminal court.

One of which is an incident in 2010 involving two high school students who talked trash to each other on Facebook. In the end one of them filed a lawsuit, and successfully got the other student convicted as a “criminal”. The latter was charged with two months and 15 days of imprisonment, but could escape jail time as long as she doesn’t break any laws for five months.

2. Law enforcers may not fully understand the best practices in handling online defamation cases.

There is the case of Donny Iswandono, the journalist who was charged under the ITE law because of his articles on corruption in the South Nias Regency. Iswandono claims to have followed journalistic best practices by asking for the regent’s comments before publishing the article, but it was ignored. Indonesia Corruption Watch believes that the police should’ve prioritized the investigation of the regent’s corruption cases over Iswandono’s defamation charge. SafeNet Voice regional coordinator Damar Juniarto cites the case of Benny Handoko, who was found guilty of defamation through his tweets. Juniarto said that the judge did not follow the usual protocol of evaluating digital forensic evidence needed to establish the “intention” in defaming the person. To demonstrate intention, the perpetrator must be shown to defame a person more than once. The judge simply dismissed the digital forensic appeal by the defense attorney. It is also very easy to report somebody to the police.

Often, just a single text is enough, just like what happened in the ongoing case of Muhammad Arsad, who sent an SMS to his superior, the head of the Selayar Regency. The police has the authority to hold convicted people in detention for 20 days after the lawsuit is filed. So they need to be really sure if the conviction really makes sense before doing so.

3. Punishments are not always appropriate for offenders.

Juniarto cites the two recent examples of Sihombing and Ridwan Kamil. Both are cases whereby the prosecutors want to uphold good internet ethics in society. He believes that if authorities want to educate netizens about online ethics, then they should teach the public about best practices. Education is a more direct approach than landing somebody in jail. “I don’t think they will learn much about ethics in jail,” he says.

4. The government should be more consistent in investigating the more serious cases in Indonesia.

The recent presidential election saw a lot of smear campaigns targeting the presidential candidates. This is where the ITE’s defamation law can play a huge role in ensuring the country’s well-being, However, no arrests resulted from those recent ad hominem attacks.

Disproportionate punishment and freedom of expression

There is also the case of the ITE law’s disproportionate damages for criminal defamation cases compared to the less severe punishment under the criminal code. Those who are found guilty under the criminal code, for example, could be sentenced up to nine months of imprisonment or fined up to IDR 4,500 (US$0.38). The ITE law sentences people up to six years of imprisonment and/or a fine of up to IDR 1 billion (US$84,750). The United Nations’ special rapporteur for free expression Frank La Rue says that online defamation should instead have less punishment when compared to defamation cases occuring in print media. This is because in online cases, the concerned individuals could immediately “exercise his/her right to reply instantly to restore the harm caused.”

On top of all that, there are also a few parts in the ITE law that can be interpreted multiple ways. The ITE law lets you charge someone who made you feel “insulted”, “scared”, or “provoked”. Those are very subjective. One person may feel insulted simply by reading a social media status posted by somebody they don’t know, while another person would just ignore it. Some people argue that as the law regulates disputes between individuals, then it might more appropriately label them a civil offense rather than criminal offense. International bodies like the United Nations and Organization for Security and Co-operation in Europe have also called for the decriminalization of defamation because it restricts the freedom of expression.

Is reform on the way?

Is there any hope to revise the law? Perhaps. Juniarto says that the Constitutional Court has done four judicial reviews regarding the ITE law, but none of them resulted in any regulation change. According to Juniarto, any more judicial reviews won’t do any good. Their hope lies in the Information and Communication Technology (ICT) ministry, who promised SafeNet Voice three weeks ago that they will revise the internet law. But Juniarto’s a bit skeptical, because the same promise was made two years ago without any results.

Since the ITE law was established, over 50 cases involving people being charged have come to light. SafeNet Voice hopes that the new ICT ministry under the new government would do things differently. For now, the government should educate everybody about the best practices in approaching online defamation cases. La Rue suggests that netizens should first try responding to the accusations. And although defamation is considered a criminal offense in countries like the United States and Australia, such cases are more commonly disputed under civil law. Vietnam is another Asian country that may have similar or even stricter internet laws. The state can imprison anyone whose online activities are deemed “against the interests of the state.”

by Enricko Lukman
Editing by Terence Lee and Steven Millward

Source: Techinasia

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