CIVICUS speaks to Asep Komarudin (pictured) of Legal Aid Institute for the Press concerning the cyber bullying amendment that was recently made to the Electronic Information and Transactions Bill. Human rights activists have complained that the amendment is being used to target them. Asep Komarudin also speaks of the impact of the law on LGBTI activists in the country.

Q: Please detail briefly the Electronic Information and Transactions cyber-bullying amendment

In 2008 the Indonesian government enacted a law related to the use of information technology, the Information and Electronic Transactions Act. The writing of this law began in 2003. In the process of formulation, two drafts were generated, namely the Utilization of Information Technology Bill and the Electronic Information and Electronic Transaction Bill. The purpose of the Bill was to respond to the development of information technology, which has implications in particular to the dimensions of the economy and trade, both nationally and globally. From March 2003, the Ministry of Communications and Information began designing the Information and Electronic Transactions Bill which was a broad spectrum law to regulate cyberspace in Indonesia. This Bill regulates the legality of electronic documents and signatures, the institutionalisation of electronic systems and the implementation of electronic certification, electronic transactions, domain names, intellectual property rights, and protection of the right to privacy among other issues.

Unfortunately, once it was enacted, this legislation caused much controversy. Problems with the Act include lack of recognition and protection of information, documents, signatures and electronic transactions, and a failure to deal with criminal threats online. There have also been problems raised in relation to Internet content and the threat to punish by defamation, the spread of hatred using the internet. The way provisions of the law have been set out is such that they are open to multiple interpretations and have serious implications in political and social life in Indonesia. There are also problems with the provision of cyber bullying in this law.

Q: What do you believe are the state’s real motivations in introducing the amendment?

At first our organisation, LBH Pers, and some other institutions filed a request for a judicial review to the Constitutional Court in 2009 after the Act was passed because parts of the law are problematic and would criminalise citizens on the Internet who criticise the government. This is especially the case with social media. Article 27 paragraph 3 of the law says insult and defamation on the Internet can result in an imprisonment of up to six years.

However, the judicial review application was rejected by the Constitutional Court which considered that article to be necessary because, the Internet distributes information very rapidly and is different to defaming someone offline. Then LBH Pers and other institutions continued to campaign on the dangers of the article arguing that it is in need of revision. There has been an increase in the number of ordinary people, activists and bloggers being prosecuted under the aforementioned article. Until now, more than 200 people have been charged and 90% of those laying charges are public officials or other people with power.

Later, the government agreed to revise the provision and lowered the possible sentence from six to four years but has refused to delete that article entirely. In early 2015, the government put a draft revision of the law to parliament with not too many substantive changes and these were ratified on October 27, 2016. It however also added several chapters that previously did not exist in the preliminary draft. We reject the draft revision proposed by the government as it does not answer the problems we raised and we also criticise the discussion process in parliament because it was not an open process and was very difficult to monitor.

Q: Can you explain what is of concern to civil society in the new cyber-bullying amendment

Cyber bullying as stipulated in Article 29 paragraph (4) is not well spelt out or defined. This has led to the misinterpretation and arbitrary use of “cyber-bullying” as a crime. Because there is no standard definition of cyber-bullying, even of bullying alone in other legal instruments,  then  the formula that is used to define cyber-bullying is flexible and results in a lot of interpretations leading to it becoming a “multipurpose Act” to suit any situation.

In such conditions, this criminal offence of cyber-bullying is prone to be misused by the enforcement authorities. This has opened a gap for the suppression of freedom of expression in cyberspace in Indonesia.

Q: Has there been any collaboration between civil society and the private sector concerning the cyber bullying amendment

Currently, there has been no collaboration between civil society and the private sector on cyber-bullying because this provision is entirely new. For now we can see that the bullying provision is not being used to protect children and teenage internet users or the general public but is only used to target civil society groups.

Q: What are the limitations in general that hinder Freedom of Expression in Indonesia?

In the context of internet regulation in Indonesia, the amendment law makes main reference to the regulation of internet content, although it must be admitted the regulation is still very limited. Content that is prohibited by the provisions of the law includes content believed to violate decency; content containing gambling; content containing insult and / or defamation; content that contains elements of extortion and / or constitutes threats and; content that spreads false news, causing loss of customers. Pornographic products are also prohibited on the basis of preserving public morals, public order, public security and the rights and reputations of others.

In general, the government can restrict content on the internet with a view to protecting the public interest and barring information deemed to disturb public order. However, there is no clarity on how rules will be enforced concerning such restrictions. We also found there is no discussion about the implications of restrictions in pertaining to the limitation of human rights. In addition, there is another problem of too broad a definition of what constitutes pornography, so it is an open space for the violation of the right to freedom of expression.

LBH Pers therefore holds that the amendment is a potential threat to freedom of expression. The criminal provisions of the law can be multi-interpreted and easily misused. Reducing the sentence for these, as done by the amendment, will not resolve the root of the problem.

The procedure to block the access to internet content is so easy and basic and may result in excessive abuse and misuse by the government.

The provision on the right to be forgotten on the internet, although welcome, also causes a problem in that government officials may want to censor and block out old news of their misdeeds of their past for political expediency.

Q: Lately there has been an increased attack on LGBTI activists and rights. What is the effect of this law amendment for LGBTI activists?

There are many problems posed by the amendment to the law including restrictions on human rights, particularly the criminal insult and defamation provisions.

There is also a problem concerning supervision of Internet content which has also has resulted in the blocking and filtering of certain webistes being done arbitrarily. There is no regulation on the procedure to be followed regarding blocking and filtering internet content. So we see a violation on the right to information, freedom of opinion and expression. Blocking is mainly supposed to be directed against the sites that are considered to have pornographic elements of content. However, in practice, some sites of organisations that fight for the rights of LGBTI persons, whose service was not intended to provide pornographic content, are getting caught up in this. Abuse of power is wide open when it comes to blocking and filtering internet content due to the absence of strict rules that guarantee and ensure transparency and accountability in the process.

Blocking and filtering was experienced by the site of the International Gay and Lesbian Human Rights Commission (IGLHRC.org), in February 2012. At least three service providers Indosat, Telkomsel and Lintas Arta are blocking such sites. In response to these actions, the human rights organisation in Indonesia sent a letter formally objecting to this practise. This letter was followed by unblocking by the three operators. A similar case was experienced by the site of the organisation fighting for the rights of LGBTI people, Our Voice, in April 2013. Our Voice (ourvoice.or.id) is blocked by one internet service provider in Indonesia (XL), so they are not accessible to the public. In addition to XL, other providers such as Indosat, 3, Axis and Smartfren are also suspected of participating in the blocking of the site. It is most likely that the blocking of websites that fight for LGBTI sexual rights in Indonesia is closely related to the use of words in block letters, such as “gay” or “lesbian”, which in Indonesia tend to be defined as deviant sexual behaviour.

Indonesia is listed in the 'obstructed' category of the CIVICUS Monitor

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