Muhammad Zulfikar, Jakarta – The National Human Rights Commission (Komnas HAM) is recommending to the government and the House of Representatives (DPR) that they revise the Draft Law on the Second Revision to Law Number 11/2008 on Information and Electronic Transaction (ITE).
"The draft law on the second revision to the ITE law need to shift the law's orientation from curbing the right to freedom of expression to an orientation of protecting the right to this freedom", said Komnas HAM commissioner for research and study Sandrayati Moniaga in a press release received by Antara in Jakarta on Thursday July 28.
First, Komnas HAM is recommending the inclusion of a "non-discrimination principle" as an important principle in the ITE Law. Second, those drafting the revisions need to include a special article on "restrictions which are legitimate and proportional".
The aim of this, said Moniaga, is for this to become a basis for law enforcement officials in deciding to what degree a complaint in a given case fulfills the criteria of a criminal action.
Following on from this, removing the articles on defamation from the draft law. This is because, she said, this has the potential to excessively limit the right to freedom of expression (over limitation).
If the article on defamation is maintained, then the definition or elements of defamation must be clearly laid out, both in terms of the subjective and objective elements, as well as the consequences which arise.
In addition to this, these cases should no longer be included as criminal acts subject to criminal sanctions but rather be included as actions against the law with civil legal liability. "Such as an apology, redress or compensation for the person who has been harmed", she said.
The next recommendation is to improve the formulation of Article 40 Paragraph (2b) by emphasising that the institution which is given the authority to block the internet (shutdown) is an independent institution.
This, she added, should be accompanied with an obligation to provide information to the public about the grounds for blocking the internet. This should include for how long, the regional scope of the shutdown and the basis and legal considerations for the shutdown.
For this, she said, restrictions on internet access must be accompanied by clear accountability as part of the state's obligation in respecting, protecting and fulfilling the human rights of all citizens.
"Fifth, a moratorium on the enforcement of the problematic articles in the ITE Law in order to prevent human rights violations until the draft ITE Law is enacted", she said.
Finally, she said, applying Komnas HAM's Norms, Standards and Regulations Number 5 on the right to freedom of opinion and expression so that this becomes a reference for the government and the DPR in reformulating the draft ITE Law.
[Translated by James Balowski. The original title of the article was "Komnas HAM rekomendasikan kaji ulang perubahan RUU ITE".]