Indonesian Constitutional Rights: Expressing and Purposing Opinions on the Internet

The International Journal of Human Rights

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Indonesian constitutional rights: expressing and purposing opinions on the internet

Zaka Firma Aditya & Sholahuddin Al-Fatih

To cite this article: Zaka Firma Aditya & Sholahuddin Al-Fatih (2020): Indonesian constitutional rights: expressing and purposing opinions on the internet, The International Journal of Human Rights, DOI: 10.1080/13642987.2020.1826450 To link to this article: https://doi.org/10.1080/13642987.2020.1826450

Published online: 07 Oct 2020.

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Indonesian constitutional rights: expressing and purposing opinions on the internet Zaka Firma Aditya a and Sholahuddin Al-Fatih b aCenter for Research and Case Analysis, The Constitutional Court of the Republic of Indonesia, Jakarta, Indonesia; bFaculty of Law, Universitas Muhammadiyah Malang, Malang, Indonesia

ABSTRACT ARTICLE HISTORY Law Number 11 Year 2008 on Electronic Information Received 2 February 2020 and Transactions (EIT Law) is a law that is often the subject of Accepted 16 September 2020 debate for legal experts in Indonesia. Up to now, more than 20 KEYWORDS court decisions that are related to the EIT Law, especially cases of Constitutional rights; humiliation and defamation involving internet users as regulated freedom of expression; EIT in Article 27 paragraph (3) of the EIT Law. Moreover, the EIT Law Law; information; opinion has so far been nine times tested in the Constitutional Court. However, judicial review of the EIT Law is largely declared rejected, not accepted, and withdrawn. The reason of the Constitutional Court refusal is because Article 27 Paragraph (3) and Article 45 Paragraph (1) of the EIT Law is considered constitutional, as it is in accordance with democratic values, human rights, and the principle of state law. The EIT Law aims to protect people’s privacy in using technology and information. In reality, the EIT Law becomes the most threatening law of criminalisation of the citizen, in which the rights of the community are informed and argued, threatened by allegations of humiliation and defamation. The most commonly armed articles are articles 27 and article 28 of the EIT Law.

The revision of Law Number 11 of 2008 on Electronic Information and Transactions (EIT Law) to Law Number 19 of 2016 caused a lot of harsh criticism from human rights activists. Institutions engaged and concern in the protection of human rights such as ELSAM (The Institute for Policy Research and Advocacy), LBH Pers (Press Legal Aid Institute) and ICJR (Institute for Criminal Justice Reform) speak up to criticise the revision of the EIT Law because the norms of the new EIT Law are not considered to diﬀer greatly from the previous EIT Law which often curbed freedom opinion or expression. Firstly, the revision of the EIT Law was directed as a legal norm to improve the Indonesian economy by regulating all transactions in cyberspace (e-commerce). However, as technology develops on social media, in fact, several articles in the EIT Law are considered detri- mental because quite a number of people are reported to the police and made suspects with allegations of defamation, so that they tend to threaten the freedom of each person to argue.

CONTACT Zaka Firma Aditya zaka.ﬁ[email protected] Center for Research and Case Analysis, The Constitutional Court of the Republic of Indonesia, Medan Merdeka Barat street, No 06, Jakarta 10110, Indonesia © 2020 Informa UK Limited, trading as Taylor & Francis Group 2 Z. F. ADITYA AND S. AL-FATIH

Duly recognised, that in practice, EIT Law has become a new threat to the protection of civil liberties in Indonesia, especially freedom of opinion and expression. This situation arises mainly due to the formulation of defamation norms in the EIT Law, as regulated in Article 27 paragraph (3), which generalises criminal defamation. According to Amnesty International, from October 2014 to mid-2019 there were at least 241 cases in which people were victims of the EIT Law.1 Interestingly, most convictions are those who are considered ‘hateful’ and ‘insulting’ President Joko Widodo. The number is 82 out of a total of 241 cases or more than one third. In fact, of the total 82, 65 of them were convicted for insulting Joko Widodo on social media. The rest occurs through offline media such as speeches and demonstrations (see note 1 above). As many as 35.92 percent of people who reported cases of the EIT Law were state officials, including regional heads, agency/department heads, and ministers.2 Meanwhile, majority of criminal convictions of expression on social media come from police initiatives that monitor cyber media. In the Freedom House research report entitled Freedom on the Net 2019: The Crisis of Social Media, Indonesia has a score of 51 for freedom of expression online on social media and is still in the yellow zone (partly free) consisting of obstacles to access (score 14), Limits on content (score 19), and violation of User Rights (score 14).3 Even worse, cases of freedom of expression related to the EIT Law turned out to increase from 74 cases during President Susilo Bambang Yudhoyono’s regime (2009–2014) to 241 cases in the Joko Widodo regime (2014–2019), or more than tripled. This is a very worrying condition, because the EIT Law was originally issued as an effort to guarantee legal certainty to information and electronic transactions that emerged together with the democratic situation that developed after the New Order period in Indonesia. However, the practice that occurs, the existing rules actually threaten and potentially suppress freedom of expression. The revision of the EIT Law in 2016 does not necessarily end the threat of freedom of expression. Although the results of the revision have made the rule of no detention during the legal process until the final decision (inkracht) and also the matter of ‘Right to be for- gotten’, which gives the obligation to delete irrelevant Electronic Information that is under his control at the request of the person concerned based on a court decision. However two does not mean anything when looking at the fact that the EIT Law continues to be used as a tool to criminalise someone and continues to threaten freedom of expression in Indonesia. This paper will discuss 3 (three) of the main issues, i.e.: (1) Conceptualisation of Freedom of Expression: An Indonesian Perspective; (2) Overview of Online Freedom of Expression in Indonesia: Its Arrangement and Implementation, and (3) Threats of The Freedom of Expression In The EIT Law Regime: A Case of Indonesia.

1. Conceptualisation of freedom of expression: an Indonesian perspective 1.1. The history of freedom of expression in Indonesia

Freedom of expression also known as freedom of speech or opinion. In addition, freedom of expression closely related to another concept called freedom of the pers. Freedom of THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 3 expression includes broader expressions, including freedom of expression through oral, printed or audiovisual material, as well as cultural, artistic and political expressions.4 Freedom of expression is a complex right. So-called because it is not absolute and therefore must be accompanied by specific duties and responsibilities and must comply with a number of restrictions, in so far as such restriction are established by law and necessary. The right to freedom of expression is also complex because this right protects the right of the speaker as well as the right of the listener.5 These two sides of the same right can sometimes be contradictory and difficult to reconcile. Both of these rights sometimes experience tension because it is not always easy to find the right balance between the right to honour, safety and privacy. Freedom of expression is essential for four reasons.6 First, freedom of expression is necessary to guarantee one’s fulfilment and to achieve the maximum potential of a person, especially in expressing his ideas (see note 6 above). Second, for the search for truth and the advancement of knowledge, it means that someone who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by confronting that judgment with the opposite view, and making use of various different throughs as optimal as possible (see note 6 above). Third, freedom of expression is essential so that people can participate in the decision-making process, especially political decisions (see note 6 above). Fourth, freedom of expression enables society and the state to achieve stability and adaptability (see note 6 above). From the four important above, in Indonesian perspective, it can be illustrated that the short-term suppression of freedom of expression may be carried out by the brutal use of power. Still, this action eventually raises the seeds of instability because society will become rigid and unable to adapt to change. A concrete example is in countries that embrace communism like China and North Korea, where the people are given very limited access to explore their expressions. As a result, state life is controlled by the stated and cannot be contested (the government tends to be authoritarian and totalitarian). Proposals and community expression are not channelled, and hence the community will lose critical and innovative abilities and find it difficult to adapt. Freedom of expression is also needed in terms of protecting citizens from corrupt and tyrannical rulers.7 That is, a democratic government requires its citizens to access the performance of their government. It is in meeting these needs for control and assessment that citizens should have all the necessary access to all information about their government. The next requirement for residents to disseminate the information is to discuss it between one person and another (see note 7 above). Frank La Rue, in his report titled Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, views freedom of expression in two ways, namely, the right to access information and the right to express themselves through any media. Apart from that, it must also be seen that freedom of expression as a key instrument in the promotion and protection of other Human Rights and is seen as the most important for encouraging the eradication of impunity and corruption.8 Thus, both Locke, Mill, and Frank La Rue have the same view on freedom of expression, which is a complex Human Rights. When discussing freedom of expression in Indonesia, it cannot separate from its history, especially during the New Order era. At that time, freedom of expression was severely restricted not only to activists and political opponents but also to a large 4 Z. F. ADITYA AND S. AL-FATIH society to maintain the stability of the country. In the Human Rights Watch Report entitled Academic Freedom in Indonesia: Dismantling Soeharto Barrier states that the restrictions of the academic world are the most chronic legacy of the New Order.9 Restric- tions of expression carried out in various forms regulated by government policy (see note 9 above). I can say, in that era, there were 3 keywords that could describe the state of freedom of expression, namely book censorship, restrictions on discussion and thought, and press bans. After the 1974 Malari incident where students and lecturers take massive action against government policies, the government through the Normalization rules for Campus Life Student Affairs Coordinating Board issued by the Ministry of Education and Culture banned over 2,000 books. Under a law still in effect, all works which, in the view of the Attorney General, a could disturb public order are subject to censorship. Under this law, hundreds of novels, historical studies, religious tracts, and books on political and social controversies have been banned, including scholarly works on subjects from early twentieth-century social movements, to liberation theology, to the rise of Asia as a centre of global capitalism. Soeharto also very ‘paranoid’ towards all forms of communism-marxism thought and everything related to the Indonesian Communist Party (PKI). Through the Decree of the People’s Consultative Assembly, Number XXV of 1966, all activities including discussions and thoughts related to it are also banned and arrested as political prisoners. Worse, not only Communist-Marxist ideas are forbidden, but also Chinese thought. In late 1978 and 1979, a series of government decrees formally banned all Chinese characters in all publi- cations and circulation of any Chinese-language printed matter. Soeharto even issued a presidential instruction number 14 of 1967 concerning Religion, Belief, Customs of China, to limit the ethnic Chinese space in carrying out their religious activities, beliefs and customs. At that time, it is difficult to overestimate the importance of freedom of expression. Where information and ideas are not permitted to flow freely, other human rights, as well as democracy itself, are under threat. whereas, participatory mechanisms must be depend on the free flow of information and ideas, since citizen engagement can only be effective if people are informed and have the means to express themselves. Other social values including good governance, public accountability, individual fulfilment, and com- bating corruption also depend on respect for freedom of expression (see note 5 above) then, how about freedom of expression after the new order? In the early Reform, freedom of expression is already quite loose. Government regime in the reform era is well aware that freedom of expression is part of human rights so they must get guarantees for it. President B.J. Habibie captured the anxiety of the people during the New Order regime by passing Law Number 9 of 1998 on Freedom of Expressing Public Opinion, Law Number 30 of 1999 on Human Rights, and Law Number 40 of 1999 on Pers. There are four objectives to be achieved in that Law, namely: (1) realising responsibility freedom as one of the implementation of human rights in accordance with Pancasila and the 1945 Constitution; (2) realising consistent and continuous legal protection in guaranteeing freedom of expression; (3) creating a climate conducive to the development of participation and creativity of every citizen as a manifestation of rights and responsibilities in democratic life; (4) placing social responsibility in the life of society, nation and state without ignoring the interests of individuals or groups. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 5

Later, during Abdurrahman Wahid (1999–2001) and Megawati (2001–2004) presi- dency, freedom of expressiom was guaranteed in the amendments Constitution, especially in Article 28, Article 28C, Article 28E paragraph (3) and Article 28F of the 1945 Consti- tution. A series of rules were issued to guarantee freedom of expression, namely presidential decree Number 6 of 2000 concerning Revocation of Presidential Instruction Number 14 of 1974 to restore freedom of expression to Chinese ethnic, and Law Number 20 of 2003 concerning national education system to restore freedom of expression in universities. In addition, Law Number 26 of 2000 on Human Rights Courts was also passed to prosecute human rights violators. The existence of Freedom of expression then followed up by President Susilo Bambang Yudhoyono (SBY) by issuing Law Number 14 of 2005 concerning Teachers and Lecturers. This law was passed to guarantee freedom of expression and academic freedom on campus. President SBY also issued Law Number 12 of 2012 concerning Higher Education that provides academic freedom not only for lecturers but also students. This is important due to one of the national education standards is to pay attention to academic freedom, freedom of the academic pulpit, and scientiﬁc autonomy to achieve the goals of Higher Education. Unfor- tunately, the SBY government made a blunder by issuing Law Number 11 of 2008 concerning Electronic Information and Transactions (EIT law). Later, the EIT Law become the primary source of problems with freedom of expression in Indonesia.

1.2. Protection to the freedom of expression in Indonesia

Freedom of expression is inherent freedom for individuals. However, how an individual expresses his expression depends very much on the policy set by the state, as the holder of authority. In Indonesia, the regulation on freedom of expression is regulated in various regulations, ranging from constitutional law to international law. Article 28 of the 1945 Constitution states that ‘freedom of association and assembly, issue of mind with oral and written and so on is stipulated by law’. Article 28 is further derived in several Articles of the 1945 Constitution, another paragraph, Article 28E Paragraph (3): Every person shall have the right to freedom of association, assembly and expression and Article 28F: Every person shall have the right to freedom of association, assembly, and expression. Every person has the right to communicate and obtain information to develop his or her personal and social environment, and shall have the right to seek, obtain, possess, store, process, and convey information using any available channel. Other regulations are contained in Law Number 9 of 1998 on Freedom of Conveying Public Opinions. The provision of Article 2 states that every citizen, individually or as a group is free to express opinions as a manifestation of the rights and responsibilities of democracy in the life of society, nation and state. This law is seen as a rule to open space for people to explore their freedom of rights definitively after so long being ruled by the authoritarian regime. Meanwhile, in Article 23 paragraph (2) Law Number 39 of 1999 on Human Rights states that every person is free to have, issue and disseminate opinions according to his conscience, orally and/or in writing through print and electronic media by observing religious values, morality, order, public interest and integrity. In fact, in the first UN session in 1946, before the Universal Declaration of Human Rights was passed, the UN General Assembly through Resolution Number 59 (1) has 6 Z. F. ADITYA AND S. AL-FATIH stated that the right to information is a fundamental human right and … the standard of all freedom declared holy by the UN. Freedom of expression is one of the important conditions that make democracy and public participation possible in any policymaking. Citizens cannot exercise their rights effectively in voting or participate in public policy-making if they do not have the freedom to obtain informant their opinions and are unable to express their views freely. The Universal Declaration of Human Rights includes the right to freedom of expression as a basic right possessed by humans. That is, this right must be fulfilled and respected, let alone in a democratic society that recognises human rights. The regulation on freedom of expression in the Universal Declaration of Human Rights is followed up in several international covenants, including Article 19 of the International Covenant on Civil and Political Rights (ICCPR), Article 5 The International Convention on the Elim- ination of All Forms of Racial Discrimination (1965), International Covenant on Econ- omic, Social and Cultural Rights (1966), and Article 3 The Convention on the Elimination of All Forms of Discrimination against Women (1979). Also, in the international comment on civil and political rights in general comment 10 on article 19 of the ICCPR in the second paragraph of the article provide for the protection of the right to freedom of expression, including not only the freedom to ‘seek, receive, and provide any information and ideas’, but also the freedom to ‘search for’, and ‘accept’ the information and ideas ‘without regard to the medium’ and in any form ‘either verbally, in writing or in print, in the form of art, or through other media according to his choice’ (see note 8 above). The provisions of Article 19 of the ICCPR above are efforts to protect all forms of ideas and subjective opinions given to others. Because, freedom of expression is like an entrance for us to enjoy freedom of association, and exercise the right to vote. Indonesia ratified the ICCPR on 28 October 2005, through Law Number 12 of 2005 concerning Ratification of the International Covenant on Civil and Political Rights which was accompanied by a Declaration of Article 1 concerning Ratification of the Inter- national Covenant on Civil Rights and politics. This ratification makes Indonesia must abide by the rights stipulated by the ICCPR, one of them is freedom of expression. It affirmed in article 2 paragraph (1) of the ICCPR which states that:

Each State party to the Covenant promises to respect and guarantee the rights recognized in this Covenant for all individuals who are in their territory and in their jurisdiction, without distinction of type anything, such as race, colour, sex, language, religion, political views or other views, national or social origins, property rights, birth status, or another status. What has been stated in article 2 paragraph (1) of the ICCPR contains the conse- quences for Indonesia to guarantee, uphold and protect human rights in its laws and constitutions. In the context of guarantees for human rights, the 1945 Constitution has its significanceforthecreationofaparadigmoftheruleoflawasaresultofa democratic process that has run very long in the trajectory of human civilisation. The importance of freedom of expression in almost every regional convention also regulates in each article. The international community realises that technology (the internet) plays a significant role in promoting freedom of speech so that the fulfilment and dissemination of information with any media becomes a matter of great emphasis in every convention. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 7

1.3. Would the freedom of expression be restricted?

Despite the many arrangements for freedom of expression, realistically, it is not absolute. Not all states parties have provided information relating to all aspects of freedom of expression. For example, little attention has been paid to the fact that, due to the development of modern mass media, eﬀective measures are needed to prevent any control over the media that disturbs everyone’s right to freedom of expression. The Universal Declaration of Human Rights stipulates that this freedom of expression does not mean free freedom. Therefore, freedom of expression also has limits. Article 29 of the Universal Declaration of Human Rights states:

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedom, everyone shall be subject to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order, and the welfare in democratic society. Article 20 of the ICCPR also limitedly mentions two categories in which freedom of expression may be restricted, namely: (1) any propaganda for war; (2) any action that pro- motes hatred on the basis of nationality, race or religion – which is incitement to discrimination, hostility or violence. This restriction is particularly significant to ward off any form of expression (written, drawing, audio, etc.) that call for or propagate war. The same provision is also justified to limit the space of freedom of expression. There are differences in interpretation in the ICCPR on how to limit or reduce the right to expression and opinion in the context of hate speech. In many countries, such as Indo- nesia, hate speech production is included in the form of punishment based on national legislation. Some countries implement preventive efforts, such as inhibiting the occurrence of public meetings/mass who propagate hate speech or by dissolving an activity while it is in progress. Another model is to provide victims of the financial recovery hate speech practice with compensation. Moreover, there are also normative rules, which are the result of a discussion of international human rights experts governing the limitation of freedom of expression as outlined in The Johannesburg Principles On National Security, Freedom of Expression and Access to Information (Johannesburg Principles). The Johannesburg Principles state that no one may be subject to restrictions, reduction, and sanctions, nor may be harmed by his opinions or beliefs. Freedom of expression or new opinion may be subject to limitation, or may be punished if it is a threat to national security, and only when the state can demonstrate that the expression of such opinion/expression is intended to motivate the violence that will occur. Or if it may motivate the occurrence of violence or if there is a direct and close relationship between the delivery opinion, with the possibility of occurrence of violence. John Stuart Mill in his book entitled On Liberty, Chapter III, of Individuality, As One of the Elements of Well Being states that ‘even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act’ (see note 7 above). Thus, freedom restriction is valid when freedom of expression stimulates harmful acts of violence for the soul. Mill also added that in the harm principle, one must be given the widest possible freedom 8 Z. F. ADITYA AND S. AL-FATIH to do everything he wants. Then, other people are not allowed to be paternalistic, except to the extent of colliding with arguments. But this means that every individual has absolute freedom without certain restrictions. The only legal limitation is that it must be based on the belief that the action could harm others. Whereas reasons based on the good of the actor or reasons based on subjective beliefs cannot be used as justification.10 The 1945 Constitution also provides for restrictions, as outlined in Article 28J paragraph (2) of 1945 Constitution that

In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society. This means that, the articles regarding human rights in the 1945 Constitution have been ‘locked’ by Article 28J paragraph (2). The limitations in Article 28J are actually in line with the spirit behind the Decree of the People’s Consultative Assembly of the Republic of Indonesia Number XVII/MPR/1998 concerning Human Rights and Law Number 39 of 1999 concerning Human Rights. In the perspective of the original intent forming the 1945 Constitution, all human rights listed in the 1945 Constitution can be limited in their validity. In a systematic interpretation, human rights regulated in Article 28A through Article 28I of the 1945 Constitution are subject to restrictions outlined in Article 28J of the 1945 Constitution. The arrangement regarding human rights in the 1945 Constitution is in line with the arrangement in the Universal Declaration of Human Rights, which also places articles on limiting human rights as the closing article. So that the human rights adopted by Indonesia are not absolute so they can be limited to the extent that their limitations determined by law. Other provisions regarding restrictions are also regulated in the provisions of Article 70 of Law Number 39 Year 1999 on Human Rights, which states:

… In exercising their rights and obligations, every person must submit to the restrictions set by the law with a view to guaranteeing recognition and respect for the rights and freedoms of others and to fulﬁll just demands in accordance with the considerations of morality, security and public order in a society democratic … Meanwhile, Article 73 states:

… The rights and freedoms provided for in this Act can only be limited by and under the Ordinance, solely to guarantee the recognition and respect of human rights and fundamental freedoms of others, morals, public order and the interests of the nation … . Restrictions on freedom of expression are also contained in Law Number 10 Year 2008 on Public Information Openness or well known as PIO Law, speciﬁcally the existence of exempt information. There are two important matters related to the restriction of information in this law. First, the law limits the types of public information accessible. Second, the law uses the basis of ‘propriety and public interest’ as the basic reason for the limitation of rights. The reason for ‘propriety and public interest’ is not in the Consti- tution or Law Number 39 of 1999 on Human Rights. Article 2 Paragraph (2) of the PIO Law states that, ‘the exempt Public Information is strict and limited’. Thus, the exemption of information is based on two basic restrictions and ‘is strictly and limited’. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 9

The most recent limitation in Indonesian law is Article 27, article 28, article 29 of the EIT Law. Although the restriction of freedom of expression in the EIT Law makes people fearful when expressing their aspirations due to every person who expresses his expression on social media has the potential to become a suspect in defamation, which is considered very subjective. The EIT Law accommodates the interests of the government so that the critical attitude of the community is curbed and too gives new authorities to the government. While defamation in Article 27 paragraph (3) is seen as a rubber article, it is multi- interpretation and easily misused. Many cases ensnare the public because he complained about the conditions he experienced on social media and snared by the article of insult and/or defamation.

2. Overview of online freedom of expression in Indonesia: its arrangement and implementation 2.1. The history of the EIT Law and its noble aims

The EIT Law is a combination of two bills, the Information Technology Crime Bill from Padjadjaran University and the E-Commerce Bill from the University of Indonesia. In 2003, the two bills were merged into one draft bill to be discussed in the House of Repre- sentative. In 2005, the Ministry of Communication and Information was established and formed a Working Committee (Panitia Kerja/Panja) consisting of 50 peoples. The discussion of the Draft Bill was carried out in the range of 2005–2007 until 21 April 2008 officially made into law. The first part of the EIT Law related to e-commerce regulates market places, domain names, electronic signatures both digital (containing private and public key infrastructure algorithms) and non-digital (scan signatures, passwords, pins, and fingerprints). The second part related to information technology crime contains many sub parts. Subpart one is illegal content such as SARA (Tribe, Religion, Race, and Intergroup) information, hate speech, hoax information, online fraud, pornography, online gambling, and defamation as stated in Articles 27, 28, and 29. The EIT Law has been amended one time in August 2016 in the era of Minister of Communication and Information Rudiantara. Of the 54 articles, 7 provisions have been revised, including the affirmation of the defamation offense case which is a complaint offense, whereas in the previous provision it was a public offense. There are at least four factors behind the amendment to the EIT Law. First, there are objections from some people to Article 27 paragraph (3) regarding defamation and/or insults through the internet which results in a constitutional review of Article 27 paragraph (3). Second, there is an objection to the threat of criminal sanctions in Article 45 paragraph (1) which is considered burdensome and disproportionate to the Criminal Code. Third, Article 43 paragraph (3) and paragraph (6) of the EIT Law are considered difficult for law enforcement officials. And fourth, there is a constitutional examination of Article 31 paragraph (4) concerning wiretapping arrangements through government regulations. The Draft Bill on Amendments to the EIT Law is the Proposed Bill of Government Initiatives in the 2015 Priority Prolegnas (Program Legislasi Nasional/National Legislation Program) and resumed into the Priority Prolegnas Draft in 2016. This bill was approved to 10 Z. F. ADITYA AND S. AL-FATIH become the Act in Level II Talks, namely at the 11th Plenary Meeting of the Republic of Indonesia on the 27 October 2016. The Bill on Amendments to the EIT Law was promul- gated on 25 November 2016 to Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Electronic Information and Transactions. The EIT Law was initially intended to protect the user data of the Indonesian community, in particular technology and information, in regards to trade and economic activity. It is actually a government effort to provide clear and legally enforceable protection against various electronic transactions in a negative direction. The EIT Law regulates various legal protections for activities that use the internet as a medium, in both transactions and information utilisation. Additionally, in the EIT Law, information and/or electronic documents are known as legitimate legal evidence of electronic signatures, implementation of certifi- cation and electronic systems, domain names, intellectual property rights in cyberspace, and so on. The EIT Law also accommodates the needs of business people on the internet, and the public in general, to obtain legal certainty, namely by the recognition of electronic evidence and valid digital signatures in court. The Government of Indonesia is also aware that the globalisation of technology has made Indonesia a part of the world’s information society, so that the establishment of the EIT Law is conducted to maintain and protect the community in the usage of technology and information. The government is also aware that the utilisation of technology and information plays a vital role in trade and the national economy, securing the welfare of the community. The purpose of the establishment of the EIT Law, among others, aims to (1) educate the life of the nation, as part of the world information society; (2) develop national trade and economy in order to improve the welfare of the people; (3) improve the effectiveness and efficiency of public services; (4) open the broadest possible opportunities for everyone to promote their thoughts and abilities in the field of information technology and electronic transactions as optimally and responsibly as possible; and (5) provide a sense of security, fairness and legal certainty for users and providers of information technology. When viewed from the principles and objectives, the EIT Law is not intended to limit the freedom of expression for the public, especially on the internet. The EIT Law is mostly intended to provide security, specifically in trading and economic activity through internet media. However, the government has instead inserted ‘rubber articles’ of the EIT Law, namely in Article 27 paragraphs (1), (2), (3), and (4), Article 28 paragraphs (1) and (2), and Article 29. Article 27 declares punishment for defamation, Article 28 declares punishment for hoaxing, while Article 29 grounds a person to be subject to a crime for committing a threat. The articles 27, 28, and 29 do not have causality with the initial goal of the establishment of the EIT Law, that is developing trade and national economy to improve the welfare of the community. However, in its development, the psal-chapter is most often imposed on the public for cases of humiliation and dissemination of hoax news, whose objects are government officials and legislative members.

2.2. Freedom of expression in social media: from freedom to restrictions

Internet has been conceptualised in such a way as to become a forum for freedom of expression with almost unlimited potential for each person as way to express his truth identity and receive expression from the identity of other individuals.11 The development THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 11 of the internet from initially only to send text and images developed into a means that provides voice and video messaging (see note 11 above). It is not impossible in the future, all human senses can be facilitated by the internet. Regulations regarding freedom of expression in the real world, or from various instruments governing freedom of expression, also apply the provisions in cyberspace or virtual world. The 1945 Constitution and other provision regulates freedom of expression to seek, receive, and convey information in any way, which in turn creates the inevitability that the right to freedom of expression gives rise to the right to information. Based on a report from Frank La Rue to the United Nations (UN) regarding the protection of freedom of opinion and expression on the internet, it was stated that there was an arbitrary action by the state in limiting content that is spread through the internet without meeting the conditions speciﬁed in Article 19 Paragraph 2 of the ICCPR namely that there should be a legal basis and suitable reasons for limiting freedom of expression and the report formulates that freedom of access to the internet must be guaranteed in human rights (see note 6 above). In Paragraph 26, Frank La Rue also reports that

in many instances, States restrict, control, manipulate and censor content disseminated via the internet without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/ or disproportionate to achieving the intended aim, as explored in the following sections. Such actions are clearly incompatible with States’ obligations under international human rights law, and often create a broader “chilling effect” on the right of freedom of opinion and expression (see note 7 above). Meanwhile, there are three opinions regarding the implementation of special regulations on the internet. Libertarians view that the internet is something that cannot be specifically regulated and must be independent, free from interference from various interests so that special regulation is not a solution (see note 11 above). Traditionalist group state that the State has legitimacy in making arrangements and making special regulations in the field of the internet. This group views the virtual world as no different from the real world so (see note 11 above). The last opinion came from moderate groups that carry hybrid regulations or a mixture of regulations between national regulations, own regulations, and international law in creating cyber regulations.12 All three make justification reasons when restrictions on access to the internet are carried out by several countries, which provide a large portion of national law in reducing freedom of expression in cyberspace. Frank La Rue also said that there are six forms of restrictions on access to the internet, namely (1) Arbitrary blocking or filtering of content on the internet; (2) criminalisation of legitimate expression; (3) imposition of intermediary liability; (4) disconnecting users from internet access, including on the basis of intellectual property rights law; (5) cyber-attacks; and (6) inadequate protection of the right to privacy and data protection. Blocking and filtering of internet content arbitrarily often occurs when spreading certain political issues, the purpose of which is the condition of the political interests of one party in the state. Indonesia itself has limited the internet more in the form of number two namely criminalisation of legitimate expression.13 Criminalisation of internet users becomes a new means of detaining someone who seeks, receives, and/or conveys sensitive information relating to politics through social media. Although this criminalisation can be justified according to Article 19 of the 12 Z. F. ADITYA AND S. AL-FATIH

ICCPR, it must be reiterated that based on national security reasons it is not necessarily used to limit the right to freedom of expression on social media unless the government can prove there is an intention to incite, a form of expression in the form of incitement, and there is a relationship between these expressions and the possibility of violence.14 Imposition of responsibility to the intermediary in limiting internet access, namely the existence of a third party’s interest in restricting access to social media. Third parties as a tool for the State to restrict access to users cannot be victims in the restrictions imposed by the State because of its function as a partner of the state. In cases relating to national security and contempt of the president, both third parties and the state (represented by the ministry of communication and information and the police) always act quietly in limiting parties suspected of committing violations even without prior reports. Meanwhile, in cases related to breaking into user data on the internet, for example data on e-commerce users, Facebook and WhatsApp, the government always absent, there is no initiative, and always waiting for reports from the public. In the EIT law, there are actually three articles which become the entry point for the government to limit people’s access to the internet on the grounds of state stability. First, Article 40 paragraph (2) that ‘the Government protects the public interest from all types of disturbances as a result of misuse of Electronic Information and Electronic Transactions that disturb public order, in accordance with the provisions of the legislation’. Secondly, Article 40 paragraph (2a) that ‘The Government is obliged to prevent the dissemination and use of Electronic Information or Electronic Documents which have prohibited contents in accordance with the provisions of the legislation’. Third, Article 40 paragraph (2b) that ‘In carrying out prevention as referred to in paragraph (2a), the Government is authorised terminating access and/or ordering the Electronic System Operator to terminate access to Electronic Information and / or Electronic Docu- ments that have unlawful contents’. In fact, the government interference with restrictions has gone far into the private sphere to individuals who use social media. In this case the state seems to be a ‘night watchman’ to oversee the behaviour of its people in social media. This statement can be strengthened if we look at the fact that the Indonesian government in October 2018 created a ‘war room’ of 70 employees to monitor social media in real time. In addition to overseeing, the government also threatened to sue those considered to be spreading hoax. Likewise in May 2019 or, the government restricted social media and communication platforms for two days with the reason to limit the spread disinformation of post presidential-election. Meanwhile, on August 2019, the Government through the Ministry of Information and Communication also restricted internet access in the provinces of Papua and West Papua for almost two weeks with the reason to reduce the spread of hoax and minimise the spread of negative content that could provoke mass action.15 The author says, when someone presents their thoughts on social media, the state is immediately present and accuses the person with accusations of spreading hatred, incitement, and even treason/coup. So, it is not surprising that the laity group is the main reported group in cases of the EIT Law of 29.4 percent.16 Another group of reported cases of the EIT Law that can be underlined are activists (8.2%), students (6.5%), teachers and lecturers (6.1%), journalists (5.3%) (see note 16 above). The four backgrounds of the reported groups are a sign that the cases of the EIT Law which have been occurring so far intersect with the right to freedom of speech. Student groups and activists and journalists THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 13 often deal with criticism, investigative reports, and sound acumen. The variety of information they provide often makes people uncomfortable. The easiest thing is to report these kinds of information as a form of defamation. Criminalisation is usually based on the Criminal Code, and the EIT Law. In this provision, freedom of expression could be limited if it threatens the state stability. In the Criminal Code, articles which often used as threats are in article 310 concerning defamation, article 311 concerning defamation, article 315 concerning minor insults, article 317 concerning false complaints, and article 318 concerning defamation. Also, there are articles aimed at activism who critics of the government, namely articles 134, 136bis and 137 Criminal Code concerning insults to the president/vice president. This article often used as an excuse to criminalise people who do not agree with government policies. But article in Criminal Code rarely used because the punishment given is lighter than using the articles on EIT Law. Many prosecutors or police are of the view that the Criminal Code is a general rule while the EIT Law is a speciﬁc regulation. In addition, the alleged defamation based on this article is more diﬃcult to prove than using the EIT Law article because the evidence can be found on other social or electronic media.

2.3. The index on online freedom of expression in Indonesia

The existence of the EIT Law has always been associated with the freedom of expression. Due to its implementation, the EIT Law has become a new threat to the protection of civil liberties in Indonesia, especially to the freedom of opinion and expression. This situation arises from the formulation of defamation norms in the EIT Law, as regulated in Article 27 paragraph (3), which generalises criminal defamation. The provisions of Article 27 paragraph (3) which are often considered to be the cause for people choosing to silence (self- censorship) the socio-political and legal conditions in government and society. The public becomes afraid to speak out about the injustices around them or about violations committed by the authorities, for fear of being accused of libel. As mentioned in the Introduction section, that from October 2014 to mid-2019 there are at least 241 cases where people were victims of the EIT Law. Meanwhile, ELSAM noted that in 2017, at least 87 cases were related to the use of defamation articles, and 62 cases used hate spreading in the EIT Law.17 In some cases, some social media users, especially on Facebook and Twitter, have to deal with the police and go to jail because their posted status contains hate speech and defamation. This condition certainly makes people worried that the EIT Law will only silence the critical power of civil society, especially in monitoring the performance of the government regime. If carried out without clear limitations, this Law is considered to potentially abuse power practices (abuse of power). For example, it is only interpreted according to the wishes of the authorities or interested parties to criminalise someone.18 According to Freedom House, in a report entitled Freedom on the Net 2017: Manipu- lating Social Media to Undermine Democracy, Indonesia scored 47 for freedom of expression online in social media in Southeast Asia. Indonesia is in a yellow zone position with a score of 47 consisting of (1) Obstacles to Access (10), (2) Limits on Content (15), and Violations of User Rights (22).19 With these scores, Indonesia is regarded as a country with online freedom of expression status. Overall, Indonesia’s score on online freedom of expression was rated below Malaysia (44), Singapore (41) and Philippine (28), but rated 14 Z. F. ADITYA AND S. AL-FATIH higher than Cambodia (52), Myanmar (63), Thailand (67) and Vietnam (76) (see note 19 above). In 2018, in a report titled Freedom on the Net 2018: The Rise of Digital Authoritarian- ism, Indonesia’s position in freedom of freedom of expression online on social media increased to 46 because the lower the value the more free, with Obstacles to Access (14), Limits on Content (19), and Violations of User Rights (13).20 Whereas in 2019, Indo- nesia’s score again dropped to 49 for freedom of expression online on social media but still in the yellow zone (partly free) consisting of obstacles to access (score 14), Limits on content (score 19), and violation of User Rights (score 16) (see note 3 above). From this it can be seen that the Limits in Content and Violations of User Rights score remains a stagnant score. This can be understood because of the strengthening repressive role of the police and excessive use of authority in maintaining the good name of government institutions, especially the president ahead of the 2019 presidential election. Indone- sia’s position in the Internet Freedom Score 2019 still lags behind neighbouring countries such as Malaysia (43), Singapore (44), and the Philippines (34) (see note 3 above). Overall, from 2011 to 2019, scores obtained by Indonesia tended to stagnate in the range 41–47 (the higher value the worst). The lowest score occurred in 2013, which amounted to 41. But in the following years Indonesia’s internet freedom index worsened. Consequently, Indonesia’s internet freedom index fell to 42 in 2014 and 2015, 44 in 2016, and 47 in 2017. The complete Indonesian Internet Freedom Index can be seen in the graph below:

Graph 1. Internet Freedom Index of Indonesia 2011–2019 from the graph above, we can see that the freedom of expression online in Indonesia in the last ﬁve years has decreased. It will set a bad precedent for the Indonesian government, especially in the current Joko Widodo regime.

3. Threats of the freedom of expression in the EIT law regime: a case of Indonesia As mentioned earlier, the EIT Law has become ‘the legal umbrella’ in the field of Infor- mation Technology and Electronic Transactions in Indonesia. In addition to protecting the area of information and technology transactions, EIT Law also raises controversy regarding threats to freedom of opinion for the public. ELSAM in the 2017 Human Rights report entitled The Enlargement of Potential Threats to Civil Liberties and the Decline of the Role of the State in the Protection of Human Rights, mentioned that the THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 15 formulation of defamation and/or humiliation and hate speech in the EIT Law has become a factor triggering the increasing threat of violation of freedom of expression in Indonesia. The formulation of the rubber article tends to be repressive, and thus backfires in silencing public expression. Such articles include Article 27 paragraph (1) and paragraph (3), Article 28 paragraph (2), and Article 29 of EIT Law. Article 27 Paragraph (3) of EIT Law has become a serious threat to the freedom of online expression, because it is most frequently used in criminalising a person on the grounds of defamation. Article 28 paragraph (2) is often used to penalise a person through spreading hatred and Article 29 related to threats. In fact, Article 27 paragraph (3) has been in Judicial review by the Constitutional Court in 2009 because it is considered to be a rubber article in the EIT Law. However, the Constitutional Court rejected this request. One of the considerations put forward by the Constitutional Court is that the contempt that is regulated in the Criminal Code (offline offense) cannot reach defamation offense and defamation committed in cyber world (online humiliation). The first victims of Article 27 of EIT Law took place in the 2009 Prita Mulyasari Case at the Tangerang District Court. Prita Mulyasari was arrested after sending an email containing her complaints about the private hospital services in Tangerang, deeming them incompatible with the Hospital’s international standards. Her email, then sent to several colleagues, was forwarded to a mailing list. Prita Mulyasari was prisoned in Tangerang Women’s Jail, on suspicion of commiting criminal defamation as stipulated in Article 27 paragrapf (3) of the EIT Law. However, this case ended with granted from Supreme Court. The Supreme Court has granted the request for Reconsideration (Peninjauan Kembali/PK) submitted by Prita Mulyasari. With this PK request granted, Prita is free from the charges directed at her. This PK decision number 22/PK/Pid.sus/2011 also released Prita from a 6-months prison sentenced with a 1-years probation. After that, many similar cases have emerged, some of which are of considerable public concern, among others: The case of Doctor Ira Simatupang, who is a former doctor at Tangerang Hospital. The case began when Ira Simatupang reported to the Police that she was a victim of attempted rape by his co-workers. However, there was not enough evidence, so the police stopped the investigation. A few days later, Ira was dismissed as an obstetrician at the hospital. For her disappointment, in 2010, Ira wrote emails to some colleagues and superiors related to sexual abuse that she had experienced. Then, Ira was charged with three articles at once, namely Article 27 Paragraph (3) jo Article 45 Paragraph (1) of the EIT Law, Article 310 Paragraph (2) of the Criminal Code on Insult, and Article 311 paragraph 1 of the Criminal Code on Defamation and Slander. On July 17, 2012, Ira was found guilty and had to serve a five-month sentence by the Tangerang District Court. On this decision, the Public Prosecutor appealed. The result of the appeal on November 29, 2012, stated that Ira Simatupang was found guilty and sentenced to imprisonment for eight months. Unlike Prita Mulyasari case, appeal that requested by Ira Simatupang was rejected by the Supreme Court. The case numbered 667 K/Pid.sus/2014 was rejected by the chair- man of assembly Dr. Artidjo Alkotsar with member Prof. Dr. Surya Jaya and Sri Murwa- hyuni. With the refusal of appeal, Ira Simatupang still have to undergo with the punishment for violations of EIT Law. The case of Haris Mushroomer and Isran Noor, Regent of East Kutai. This case originated from a discussion that occurred in a Facebook group discussing poverty in East 16 Z. F. ADITYA AND S. AL-FATIH

Kutai. In the discussion, it was quoted by East Kutai Regent Isran Noor in a national media that after four years of leading East Kutai, there was no more poverty. Haris then commen- ted on the article, ‘a lot of bullshit is the regent’s, bullshit everywhere, bitch that regent’s (Banyak omong kosong saja itu Bupati, koar-koar di mana-mana. Bullshit itu Bupati Bajingan)’. Isran Noor, who did not accept the statement made by Haris Mushroomer, then reported Haris Mushroomer to East Kutai Police on March 13, 2014, by using Article 27 paragraph (3) of the Law on EIT. This case ended peacefully after Haris Mush- roome sent a letter of apology to Isran Noor. Isran Noor forgives Haris Mushroome and cancels the charges on April 29, 2014. The case of Florence Sihombing. This case began when Florence wrote his curse on social media, which was recaptured by her friend and disseminated to the public. The spread of the Florence’s post has later received a lot of criticism from the citizens of Yogya- karta, due to the post’s expression. Then, she was reported to Yogyakarta regional police by Non-Government Organization, don’t betray the voice of the people or Jangan Khia- nati Suara Rakyat (Jatisura). For her actions, Florence was threatened by Article 27 paragraph (3) in conjunction with Article 45 paragraph (1) of the Electronic Information and Transaction Law. On March 31, 2015, the Yogyakarta District Court stated that Flor- ence Sihombing did not need to be sentenced 2 months in prison as long as it did not commit crimes for the next 6 months. In addition, Florence Sihombing also had to pay a fine of IDR 10 million. Florence Sihombing appealed. On July 28, 2015, high court judge, Sri Mulyanto, Eko Tunggal Pribadi and Dina Krisnayati improved the Yogyakarta District Court’s decision by abolishing the criminal fine. Prosecutors did not accept that decision and submitted an appeal for Florence Sihombing were subjected to probation for 1 year. However, the Supreme Court rejected the appeal from prosecutor through case decision number 2580 K/Pid.sus/2015. In addition to using Article 27 paragraph (3), freedom of expression has also been chal- lenged by the existence of Article 28, related to hate speech. Article 28 of the EIT Law is often used to criminalise certain groups, political opponents, and group members. Even in some cases, the use of the hate speech article often relates to the religious blasphemy article. In contrast to the use of Article 27 paragraph (3), Article 28 of the EIT Law is usually used on the basis of likes and dislikes of statements, and writings from persons from other groups who are considered to be harming the group. The most nationally-concerned cases are the blasphemy case by former Jakarta gover- nor, Basuki Tjahja Purnama (Ahok) and the hate speech case by Buni Yani. The case of blasphemy by Ahok originated from his statement that alluded to Q.S. Al-Maidah verse 51 during the campaign at the election of the governor of DKI Jakarta in 2016. Videos of Ahok’s speech were re-uploaded by Buni Yani on his Facebook. For his actions, Buni Yani was reported to the police by Ahok’s supporters on the basis of hate speech by delib- erately editing the transcript in Ahok’s video, while Ahok was reported to police by fans of Buni Yani on the basis of religious blasphemy against Al-Maidah verse 51. Ahok charged under Article 156a of the Criminal Code, Article 157 paragraph (1) of the Criminal Code and Article 28 paragraph (2) of the EIT Law and by the court was sentenced to 2 years. Meanwhile, Buni Yani was charged with Article 32 paragraph (1) in conjunction with Article 48 paragraph (1) of EIT Law and Article 28 paragraph (2) in conjunction with Article 45 paragraph (2) to Article 45 Letter A paragraph (2) EIT Law and finally sentenced to 18 months of imprisonment. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 17

Almost all legal efforts have been made, both by Ahok and Buni Yani. Starting from pretrial until reconsideration. But the attempt failed. Both of them still prisoned. Buni Yani prisoned for 1 year and 6 months with decision number 1712K/Pid.sus/2018. While reconsideration that submitted by Ahok with number 11PK/Pid/2018 rejected by Supreme Court and upheld the North Jakarta District Court decision number 1537/ Pid.B/2016/PN.Jkt.Utr who sentenced Ahok to 2 years in prison. There are also other cases, such as the case of Alexander Aan who is a Candidate for Civil Servants (CPNS) in Dharmasraya District of West Sumatra. Aan, who claimed an atheist wrote his controversial Facebook status entitled ‘God Does Not Exist’ in the Face- book group of Atheist Minang in early 2012, was charged with blasphemy and spreading hatred through electronic media. Aan wrote the statement because he saw a lot of misery in the world and a lot of life gaps. As a result of his writing, Aan is facing the threat of Article 156a of the Criminal Code (KUHP) on blasphemy and Article 27 paragraph (3) of EIT Law. On June 14, 2012, the Muaro Sijunjung Court found Aan guilty of spreading religious hatred. He was sentenced to 2.5 years in prison and was fined IDR 100 million by decision number 45/Pid.B/2012/PN.MR. The same case also affected Mirza Alfath in 2012, who was criticised for the implementation of Shariah Law in Aceh, his preference to Israel, and his thought of promoting rationality. Mirza was accused of insulting/defacing Islam. The Majelis Permusyawarahan Ulama (MPU) of Aceh summoned him and asked Mirza to apologise, to shahadah and to repeat his marriage. Meanwhile, the Rector of Malikussaleh University (UNIMAL) of North Aceh forbade Mirza to teach and guided the thesis until an indefiniet time. He was also removed from his post as Secretary of the State Administrative law Section in his faculty. There are no legal sanctions or article in EIT Law which were imposed for Mirza Alfath. In addition to the threat of defamation and hate speech, the EIT Law also regulates the prohibition of spreading hoax news as regulated by Article 28 paragraph (2) of the EIT Law. In general, the spread of hoax news is also accompanied by hate speech against certain groups, even in the government. There have also been many cases of hoax news captures by the police because it is considered to disturb communities. Some of the cases that have happened are: The case of Mamuju citizens who wrote a Facebook status entitled Egg Martabak (Mar- tabak Telor) in 2017. This case originated when one of the citizens wrote about a situation aiming to joke about the Mamuju City, and was especially sensitive because of the mutila- tion case against Martha. Although only meant as a joke, other Facebook users trusted the status without reading through to completion. The police considered this act to violate Article 28 paragraph (2) of the EIT Law. However, the prepetators who had been detained by the police were released on July 18, 2017, and only punished with compulsory reporting. The case of Himma Dewiyani Lubis, lecturer of University of North Sumatra (2018) which started from the status of Facebook about suicide bomb in Surabaya. In her status, Himma shares a status to other users entitled 3rd Surabaya bombs just a diversion of issues The perfect diversion scenario … #2019GantiPresiden. Himma was considered to violate the EIT Law because her Facebook status was deemed to be false news, including hate speech. Himma was sentenced to 1 year imprisonment and fined IDR 10 million for 3 18 Z. F. ADITYA AND S. AL-FATIH months in prison by the Medan High Court’s decision. This decision revised former decision number 3168/Pid.Sus/2018/PN.Mdn by Medan District Court. The case of the Muslim Cyber Army (MCA) in 2018. The case began when the MCA criticised government policy and shared the hashtag #2019GantiPresiden due to dissatis- faction with the current government regime. Due to its postings, the police then hunted and captured the Instagram MCA admin as it was considered to spread false news often and spread hate speech about the government. AY, the owner of MCA account was charged with article 45 A paragraph (2) Jo 28 paragraph (2) Law Number 11 of 2008 concerning Electronic Information and Transaction (EIT Law) and/or article 14 paragraph (1) Law Number 1 of 1946 concerning Criminal Law and/or article 207 of the Criminal Code. His legal process is still ongoing and there is no final decision. The cases that use hate speech verses in the EIT Law clearly proves that the purpose of the article is misdirected. This article is used to suppress freedom of expression and opinion through cyberspace, while statements uploaded or maintained by intolerant groups are not subjected to the application of this article. In fact, in the current government era, the articles of the EIT Law serve as a weapon to restrict groups that do not support the government. It is evident when the government is swift to process cases of people/groups that are opposed to the government, while the government is very slow in solving cases against its support groups. In the case of Viktor Laiskodat, for example, the police were very slow in investigating cases of hate speech against Muslims during the campaign of the candidate for governor of East Nusa Tenggara. While in the case of hate speech by Habib Rizieq, the police were very quick to process it. Moreover, in the ‘chat of nasty’ scandal, the police were quick and responsive in processing it. The police issued an investigation warrant against Habib Rizieq, while the spreaders and makers of ‘chat of nasty’ were not investigated and never followed up. This also happens with insults by buzzers from JASMEV (Jokowi Ahok Social Media Volunteer) who are in principle the same as the Muslim Cyber Army. Although many JASMEV buzzers personally attack Jokowi-Ahok’s political opponents, they are ‘above the law’ and cannot be touched by the police, although many parties report JASMEV accounts to the police. Unlike the case with the Muslim Cyber Army which is the Jokowi-Ahok opposition, often criticises government policies, it is actually being chased by the police to the lowest network in the area even though there are no reports from parties who feel disadvantaged Table 1. Based on table above, author can say that every year there were any case of defamation, blasphemy or hate speech happen in Indonesia. EIT Law was became very destroyer and terrible for any citizen in Indonesia. Moreover, EIT law is not only a tool to punish others, but also used as a tool by the government to silence those who often express criticisms to the government policy. If traced further, the government also interfered in restricting internet access to stem critical attitudes from society. For example, as the author has alluded to in discussion of 2.2, on May 2019, the government restricted social media and communication platforms for two days with the reason to limit the spread disinformation of post presidential-election. Likewise, on 21 August 2019, the Government of Indonesia through the Ministry of Information and Communication also restricted internet access in the provinces of Papua and West Papua for almost two weeks with the reason to reduce the Table 1. Selected cases of violations of the EIT Law 2009–2020. No. Year Case Threat Decision Sanction 1. 2009 Prita Mulyasari Criminal defamation as stipulated in Article 27 paragraph Reconsideration (Peninjauan Released from a 6-months prison sentenced with a 1-years (3) of the EIT Law Kembali/PK) with decision probation number 22/PK/Pid.sus/2011 2. 2010 Ira Simatupang Criminal defamation as stipulated in Article 27 Paragraph Reconsideration (Peninjauan Jailed for eight months (3) jo Article 45 Paragraph (1) of the EIT Law, Article 310 Kembali/PK) rejected with Paragraph (2) of the Criminal Code on Insult, and Article decision number 667 K/Pid.sus/ 311 paragraph 1 of the Criminal Code on Defamation and 2014 Slander 3. 2012 Alexander Aan Blasphemy as stipulated in Article 156a of the Criminal Muaro Sijunjung Court decision Jailed for 2.5 years and fined IDR 100 million Code (KUHP) and Article 27 paragraph (3) of the EIT Law number 45/Pid.B/2012/PN.MR 4. 2012 Mirza Alfath Criminal defamation as stipulated in Article 27 paragraph – Repeat his shahadah and marriage, forbade him to teach (3) of the EIT Law and guided the thesis until an indefinite time and remove him from his post as Secretary of the State Administrative law Section in his faculty 5. 2012 Baiq Nuril Criminal defamation as stipulated in Article 27 paragraph Amnesty from President Joko Released for free after 7 years on-going law process (3) Jo Article 45 paragraph (1) of the EIT Law Widodo 6. 2014 Haris Criminal defamation as stipulated in Article 27 paragraph – Ended peacefully after Haris Mushroomer sent a letter of RIGHTS HUMAN OF JOURNAL INTERNATIONAL THE Mushroomer (3) of the of the EIT Law apology to Isran Noor. Isran Noor forgives Haris Mushroomer and cancels the charges on 29 April 2014. 7. 2015 Florence Criminal defamation as stipulated in Article 27 paragraph Yogyakarta District Court’s decision Released from a 2-months in prison as long as it did not Sihombing (3) Jo Article 45 paragraph (1) of the EIT Law number 2580 K/Pid.sus/2015 commit crimes for the next 6 months and free from any criminal fine 8. 2016 Basuki Tjahja Blasphemy as stipulated in Article 156a of the Criminal North Jakarta District Court decision Jailed for 2 years Purnama Code, Article 157 paragraph (1) of the Criminal Code and number 1537/Pid.B/2016/ (Ahok) Article 28 paragraph (2) of the EIT Law PN.Jkt.Utr 9. 2016 Buni Yani Hate speech as stipulated in Article 32 paragraph (1) Jo Bandung District Court decision Jailed for 1 year and 6 months Article 48 paragraph (1) of EIT Law and Article 28 number 1712K/Pid.sus/2018 paragraph (2) Jo Article 45 paragraph (2) to Article 45 Letter A paragraph (2) of the EIT Law 10 2017 Egg Marthabak Hate speech as stipulated in Article 28 paragraph (2) of the – Released on July 18, 2017 and only punished with EIT Law compulsory reporting. 11 2017 Himma Dewiyani Hate speech as stipulated in Article 28 paragraph (2) of the Medan High Court decision number Jailed for 1 year and fined IDR 10 million for 3 months in Lubis EIT Law 3168/Pid.sus/2018/PN.Mdn prison 12 2017 Ahmad Dhani Hate speech as stipulated in Article 45 A paragraph (2) Jo South Jakarta District Court Jailed for 1 year and 6 months 28 paragraph (2) of the EIT Law decision number 370/Pid.sus/ 2018/PN.Jkt.Sel

(Continued) 19 20 .F DTAADS AL-FATIH S. AND ADITYA F. Z.

Table 1. Continued. No. Year Case Threat Decision Sanction 13 2018 Muslim Cyber Hate speech as stipulated in Article 45 A paragraph (2) Jo still on-going – Army (MCA) 28 paragraph (2) of the EIT Law and/or article 14 paragraph (1) Law Number 1 of 1946 concerning Criminal Law and/or article 207 of the Criminal Code 14 2019 Saiful Mahdi Criminal defamation as stipulated in Article 27 Paragraph Banda Aceh District Court’s decision Jailed for 3 months and ﬁned IDR 10 million for 1 month in (3) jo Article 45 Paragraph (3) of the EIT Law number 432/Pid.sus/2019/ prison PN.BNA 15 2019 Rius Vernandes Criminal defamation as stipulated in Article 27 paragraph – Ended peacefully (3) Jo Article 45 paragraph (3) and/or Article 28 paragraph (1) Jo Article 45 A paragraph (1) of the of the EIT Law and/or Articles 310–311 of the Criminal Code 16 2020 Zikria Dzatil Hate speech as stipulated in Article 45 A paragraph (2) Jo – Released after Tri Rismaharini forgive her 28 paragraph (2) and/or Hate speech as stipulated in Article 45 paragraph (3) Jo 27 paragraph (3) of the EIT Law THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 21 spread of hoax and minimise the spread of negative content that could provoke mass action. At that time, there was a demonstration which was motivated by the occurrence of discriminatory acts and racism in Surabaya and Malang. The government used Article 40 paragraph (2), Article 40 paragraph (2a), and Article 40 paragraph (2b) of the EIT Law to restrict internet access on the grounds of protect the public interest from all types of interference due to misuse of EIT Law (see note 15 above). Almost 2 weeks, the people of Papua could not receive or send information to the outside world. They have limited access to information so that the outside community does not know the real situation that is happening there. In fact, restrictions on internet access actually harm the public economic, especially online sellers, online tickets, and online drivers. Internet access restrictions undertaken by this government then met with resistance from the public. A number of institutions such as the South East Asia Freedom of Expression Network (SAFEnet) Indonesia, the Alliance of Independent Journalists (AJI), LBH Press (Press Legal Aid Institute), the Indonesian Legal Aid Foundation (YLBHI), Commission for Missing Persons and Victims of Violence (KontraS), the Insti- tute for Policy Research and Advocacy (ELSAM) and the Institute for Criminal Justice Reform (ICJR) sued President Jokowi and the Ministry of Information and Communi- cation to the Jakarta State Administrative Court. Interestingly, the Jakarta State Adminis- trative Court (PTUN) through Decision number 230/G/TF/2019/PTUN-JKT convicted President Joko Widodo and the Minister of Communication and Informatics in the case of terminating the internet network.21 The judges found the internet blocking in Papua violate the law Number 74 of 1957 concerning dangerous circumstances (see note 21 above). Moreover, prior to the blocking there was never an announcement that there was a dangerous situation, the government only announced it through a press release (see note 21 above). The judges also declared neutral internet which can be used for positive or negative. However, if there is content that is unlawful, then it should be limited is that content (see note 21 above). Regarding restrictions on internet access, the judge actually allowed as long as it met the following 3 conditions: (see note 21 above)

(1) Restrictions must be regulated in statutory regulations in the form of laws; (2) Restrictions must meet / comply with one of the following objectives: (a) To guarantee recognition and respect for the rights or good names of other parties; (b) To fulﬁl fair demands in accordance with considerations of moral, religious values, security, decency, public order, or public health. (3) It must be proven that the limitation is proportionately required.

3.2. What should be Fixed in the future

Cummings and David Wise, in a book entitled Democracy Under Pressure, states that one of the absolute requirements that a democratic country must have is the freedom of its members to express its ideas openly without being restricted through any media.22 There- fore, the law regulating freedom of expression must allow the freedom of expression both orally and in writing. To enforce it, everyone has the right to collect the materials he/she 22 Z. F. ADITYA AND S. AL-FATIH needs, so that he/she may be guaranteed the right to seek, obtain, possess, store, process, and deliver it. Besides that, there should also be provisions of the law prohibiting anyone, including governments, who want to reduce, limit or eliminate such freedom. Freedom of expression and opinion has gained its own place in the process of democracy and ongoing reform in current Indonesia. One characteristic of a democratic country is the guarantee of the protection of freedom of expression. The government acts as the holder of the executive rights and the People’s Legislative Assembly acts as the bearer of the mandate for the people. A country is considered to be genuinely democratic when reasonably prepared to provide substantial protection for ideas of expenditure through any and all mediums. Therefore, since Indonesia is a democracy, the government should protect the freedom of expression for the people. We must realise that the existing law always limits the community in using technology, and the EIT Law is included as one of them. Normatively, the EIT Law has also ruled out Articles in the Criminal Code (KUHP), because both of them regulate defamation articles. In the KUHP, the rules of defamation are provided in Chapter XVI on Insults contained in Article 310 to Article 321 of KUHP. R Soesilo, in his book entitled Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar - Komentarnya Lengkap Pasal Demi Pasal, the explanation of Article 310 of KUHP explains that an ‘insult’ is ‘to attack the honor and reputation of a person’.23 The question is, when faced with the case of defamation, which article is used? An article in the KUHP or an article in the EIT Law? In fact, if there is an expression that is offensive or defamatory in the media, primarily social media often does not use the Criminal Code as the basis of complaint. Commonly used is the Law of Electronic Information and Transactions, which is in the article listed in the rules of electronic media. Soetandyo Wignjosoebroto points out that the object of the objection against Article 27 Paragraph (3) of the EIT Law is, firstly, unclear who the subject of the norms is in the article: those who make information accessible or those who make insulting and/or defamation charges (dader). Secondly, the article on insult is a chapter which contains a very subjective element of an offense, in contrast to other formulations of offense that are always formulated more objectively, such as theft. Humiliation is still subjective because there must be parties who feel victimised and feel humiliated.24 Meanwhile, Atmakusu- mah Astraatmadja said that ‘the EIT Law does not follow the development of international law. At least fifty countries have transferred rumors of falsehood, humiliation, and defamation from criminal law to civil law’. Some countries, continued Atmakusumah Astraat- madja, ‘even wholly abolish the provisions of the law of spreading hatred and humiliation because it is considered difficult to prove or highly subjective’.25 Realistically, it is necessary to improve the EIT Law itself. Firstly, there needs to be a legal reform. As it was known that some articles in the EIT Law have the same substance as the Article in the Criminal Code, albeit in different contexts. As in Article 27 of the EIT Law on Defamation and Article 28 of and identifying elements of cyberbullying. Secondly, there needs to be an awareness and an effort from the government regime to not use the EIT Law as a tool to remove political opponents, or people with different views of government policy. Already, many people who have been affected by the EIT Law are mostly reported by government apparatus as either the members of central government, local government or its supporters. In fact, it may be that the community is just speculat- ing the government through sarcastic criticisms on social media, but the government THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 23 interprets as if it is hate speech, hoax news, or defamation. The community has always been the victim of the existence of this EIT Law. Meanwhile, the EIT Law on Hate Speech. This, of course, must be resolved soon because there has been large amounts of pressure from society and human rights activists to revise the EIT Law. Furthermore, the cyberbullying offense, as a result of the revision of the EIT Law of 2016, also raises problems related to the definition of cyberbullying itself. Criminal law experts have had difficulty interpreting, government officials, both in the centre and in the regions, have not been prosecuted by the EIT Law. Third, there is a need for public education about the use of respectable social media. This education can be in the form of workshops, discussions, and seminars on awareness of interacting online and on social media in a polite manner. Therefore, the role of the government here can be as an initiator and facilitator in creating a smart and polite society in using social media. The government must also be pro-active in efforts to educate the public. Finally, there needs to be an awareness of the community itself. Although freedom of expression is constitutionally guaranteed, society should under the notion that freedom is as free as possible. That is, it should not be due to freedom of expression that the public is free to criticise using dirty words, spread false news, spread hate speech and hostility, or attack one’s private domain. Although freedom of expression is guaranteed, it should not interfere with or infringe on the freedoms of others. A freedom which is universally regulated include limits and may be restricted if and only if such freedom/rights violate the freedom and/or rights of others.

4. Conclusion Freedom of expression, especially online expression, in Indonesia faces serious challenges after the issuance of the EIT Law. Since its legalisation in 2008, many people have been affected by the effect of the EIT Law. Most of them are reported to have committed defamation, hate speech, and threats as regulated in Article 27, paragraph (3), Article 28 paragraph (2) and Article 29 of the EIT Law. Sadly, most of the complainants in these cases are government regimes, from the central government to the local government. The data col- lected by human rights activists in Indonesia shows that the cases underlying the EIT Law are increasing every year. The EIT Law itself is socio-juridical and is aimed to regulate economic transaction activity using technology media. However, the EIT Law is actually used as a tool to criminalise other organisations, and as a minority of the EIT Law, it regulates criminal defamation, hate speech, and threats that mostly use the technology medium. In fact, when a similar act has been regulated in the Criminal Code, people prefer to criminalise a person using the EIT Law rather than the Criminal Code. Unfortunately again, the EIT Law is often used by the government to bring down political opponents and/or people who often criticise the policies of government regimes. In fact, within a democratic state, freedom of expression is a freedom that must be upheld. Freedom of expression is governed by the constitution, the law, and even in the international covenant. The freedom of expression from one person may violate the freedoms of another. In some cases, when a person’s freedom violates the freedom of another person, the state may limit the right to that person’s freedom. These limits are regulated in international 24 Z. F. ADITYA AND S. AL-FATIH human rights declarations, ICCPR and other international covenants. While in Indonesia, the limitation is regulated not only in human rights law, but also explicitly restricted in the constitution, namely in Article 28J Paragraph (1) and Paragraph (2) of the 1945 Constitution. I assume, as long as this EIT Law still exists, there will be more cases of criminalisation to the public who express their thoughts on the internet. Moreover, the EIT Law is redun- dant with the Criminal Code articles, especially concerning defamation, defamation, and contempt of the president/vice president. In the future, as an effort to increase freedom of expression in Indonesia, the government must implement several policies, namely: (1) establishing policies regarding the public and police not to easily use Articles 27, 28 and 29 of the EIT Law; (2) revising Articles 27, 28 and 29 of the EIT Law so that the boundaries are clear; (3) abolished Articles 27, 28, 29 of the EIT Law and maintained the Criminal Code articles; and (4) replace the prison sentence to a fine.

Notes 1. Usman Hamid, ‘UU ITE dan merosotnya kebebasan berekspresi individu di Indonesia’ (2019), https://theconversation.com/uu-ite-dan-merosotnya-kebebasan-berekspresi-individu- di-indonesia-126043. 2. Dieqy Hasbi Widhana, ‘Puncak Darurat Berpendapat di Era Jokowi’ (2017), https://tirto.id/ puncak-darurat-berpendapat-di-era-jokowi-cyjk. 3. Freedom House, Freedom on The Net 2019 : The Crisis of Social Media (Washington: Freedom House, 2019). 4. The United Nations Educational, Scientific and Cultural Organization (UNESCO), Toolkit Berekspresi Bagi Aktivis Informasi, trans. ICT Watch and Safenet, France. 5. Toby Mendel and Eve Salomon, Freedom of Expression and Broadcasting Regulation, CI Debates Series No.8 February 2011 (Brazilia: UNESCO Brazilia Office, 2011). 6. Thomas Irwin Emerson, The System of Freedom of Expression (New York: Random House, 1970). 7. John Stuart Mill, On Liberty (Kitchener: Batoche Books Limited, 2001). 8. Frank La Rue, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression A/HRC/14/23’. 9. Human Right Watch, Academic Freedom In Indonesia: Dismantling Soeharto-Era Barriers (New York-Washington-London-Brussels: Human Right Watch, 1998). 10. Brian Wilson, ‘Advancing the Law of Vessel Interference by Non-State Actors’, Texas Inter- national Law Journal 55, no. 1 (October 2019). 11. A.von Bogdandu and R. Wolfrum, eds., Max Plack Yearbook of United Nations Law Volume 10, (Netherlands: Koninklijke Bri, 2006). 12. AP Edi Atmaja, ‘Kebebasan Mengakses Internet Sebagai Hak Asasi Manusia: Selayang Pandang Indonesia dan Negara ASEAN Lainnya’, Jurnal Hukum dan Perjanjian Interna- sional Opinio Juris 18 (Mei-September 2015). 13. Frank William La Rue, United Nation Report 2011: Internet access is a human right (2011), http://latimesblogs.latimes.com/technology/2011/06/united-nations-report-internet-access- is-a-humanright.html. 14. Sufiana Julianja, “Pembatasan Kebebasan Berkespresi dalam Bermedia Sosial : Evaluasi Undang-Undang Informasi dan Transaksi Elektronik dalam Perspektif Hak Asasi Manusia”, Padjadjaran Law Review 6 (Desember 2018). 15. Siti Chaerani Dewanti, “Pembatasan Internet Dalam Mengatasi Konflik Di Papua”, Info Singkat : Kajian Singkat Terhadap Isu Aktual Dan Strategis XI (September 2019). 16. Scholastica Gerintya, “Jerat UU ITE Banyak Dipakai oleh Pejabat Negara” (2018), https:// tirto.id/jerat-uu-ite-banyak-dipakai-oleh-pejabat-negara-c7sk. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 25

17. SAFEnet (Southeast Asia Freedom of Expression Network), Daftar Kasus Netizen yang Ter- jerat UU ITE (2020), http://id.safenetvoice.or.id/daftarkasus/. 18. The Indonesian Institute, Update Indonesia: Tinjauan Bulanan Ekonomi, Hukum, Keama- nan, Politik, dan Sosial, Vol. X, No 12, Desember 2016 (Jakarta: The Indonesian Institute, 2016). 19. Freedom House, Freedom on the Net 2017: Manipulating Social Media to Undermine Democ- racy, (Washington: Freedom House, 2017). 20. Freedom House, Freedom on The Net 2018: The Rise of digital Authoritarianism (Washing- ton: Freedom House, 2018). 21. Decision of the Jakarta State Administrative Court, Decision Number 230/G/TF/2019/ PTUN-JKT 22. Milto C. Cummings and David Wise, Democracy Under Pressure : An Introduce to American Political Legal System (New York: Harcourt Brace Jovanovich Publishers, 1985). 23. R. Soesilo, Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar Komentarnya Lengkap Pasal Demi Pasal (Bogor: Politeia, 2013). 24. Decision of the Constitutional Court of the Republic of Indonesia, Decision Number 2/PUU- VII/2009 on Judicial Review of Law Number 11 Year 2008 on Electronic Information and Transactions. 25. Decision of the Constitutional Court of the Republic of Indonesia, Decision Number 50/ PUU-VI/ 2008 on Judicial Review of Law Number 11 Year 2008 on Electronic Information and Transactions.

Disclosure statement No potential conﬂict of interest was reported by the author(s).

Notes on Constributors Zaka Firma Aditya is a researcher at Center for Research and Case Analysis, The Constitutional Court of the Republic of Indonesia. His main area of research on Constitutional Law, Comparative Law, and Human Rights. Sholahuddin Al Fatih is a lecturer at Faculty of Law, Universitas Muhammadiyah Malang, Indo- nesia. His main area of research is on Constitutional Law, Electroral Law, and Human Rights.

ORCID Zaka Firma Aditya http://orcid.org/0000-0002-2633-0927 Sholahuddin Al-Fatih http://orcid.org/0000-0003-1166-5182