Tim Mann – For a brief moment in February, it looked as though Indonesia's notorious Information and Electronic Transactions Law ("the ITE Law") would be revised. This is well overdue, as the law has become a weapon used by the powerful to silence criticism, and a major threat to democratic freedoms.
On 15 February, President Joko "Jokowi" Widodo instructed newly appointed National Police Chief Listyo Sigit Prabowo to draft guidelines to ensure police were more selective in processing people reported under the law. If the law could not be implemented fairly, Jokowi said, the government would work with the House of Representatives (DPR) to revise its more problematic articles.
Listyo quickly issued a circular calling on police to prioritise mediation and restorative justice over criminal charges, which should be considered a "last resort", except in cases with the potential to divide communities, those involving hate speech against groups in society, or those related to radicalism or separatism.
But efforts to revise the law fizzled out almost as quickly as they began. Not long after Jokowi's statement, Coordinating Minister for Political, Legal and Security Affairs Mahfud MD announced the government was forming an inter-ministerial team to review the law and decide whether it needed reform. Team members have been given until 22 May but few expect that they will do their work quickly.
It now appears the draconian law will remain in its current form for a year at least, after the DPR failed to include it in its list of priority bills for deliberation in 2021.
The ITE Law was passed in 2008. It was originally intended to respond to rapid developments in information technology, and fill legal gaps around issues such as electronic transactions and the position of digital information and signatures under Indonesian law. But drafters also inserted problematic provisions criminalising 'immorality', defamation, and hate speech, under articles 27, 28 and 29.
Immorality is criminalised under Article 27(1), which prohibits "intentionally and without rights distributing, transmitting or making accessible electronic information or documents that contain material in violation of morality". But there is no clear definition of morality, leaving this article highly open to manipulation. Further, the explanation to the article states that "transmitting" involves "the sending of electronic information or documents to another party", meaning that even private consensual sharing of nude photos with another person could potentially be considered an offence.
Article 27(3) makes it an offense to "intentionally and without rights distribute, transmit, or make accessible electronic information or documents that contain denigrating or defamatory material". A key issue with this offence is that it does not contain any element specifying that the defamation must occur "in public", unlike similar provisions on defamation in the Criminal Code (KUHP). This means that even private chat messages can be considered violations, as only one person needs to receive a message for the element of "distributed, transmitted or made accessible" to be fulfilled.
Hate speech is criminalised under Article 28(2), which prohibits "intentionally and without rights spreading information intended to result in hatred or enmity toward individuals or groups in society based on their ethnicity, religion, race or group (SARA)". As with Article 27(3), there is nothing in the law stating that this information must be spread publicly. Activists have also criticised the wording of the article for failing to include the element of incitement, which is usually a fundamental part of hate speech provisions.
The imprecise formulation of these criminal provisions has allowed them to be widely abused, particularly by state authorities, businesspeople, and people in positions of power, to target their critics. The law has become so distorted from its original function that it has now emerged as one of the most pernicious threats to freedom of expression in Indonesia and a stain on the country's fragile democracy.
In fact, use of the law has escalated rapidly under the Jokowi administration. According to Amnesty International Indonesia, there were only five online defamation cases each year in 2009 and 2010. But the Institute for Criminal Justice Reform (ICJR), one of the main civil society organisations advocating for revisions to the ITE Law, recorded 768 people charged under the law between 2016 and February 2020. Cases were relatively evenly split between defamation (37%), morality (32%) and hate speech (28%). The study recorded a conviction rate of nearly 97%, or 744 cases. Some 88% of those convicted received prison sentences.
The most egregious conviction under the law over recent years involved Baiq Nuril, a teacher from Lombok who was convicted of distributing audio that "violated morality", sentenced to six months in prison and fined Rp 500 million.
Shockingly, Nuril was a victim of sexual harassment. After receiving sexually suggestive phone calls from the principal at her school, Nuril decided to record the calls to protect herself. But when these recordings were distributed among the school community, the principal reported her to police for violating Article 27(1) of the ITE Law on morality.
After a major national outcry over her treatment, Jokowi granted her amnesty, but not after Nuril lost her job, spent a month in detention, and was accused of bringing shame on the principal who sexually harassed her.
Another example occurred in late 2019, at the height of the #ReformasiDikorupsi (#ReformCorrupted) protests. Prominent activist Dandhy Laksono was named a suspect and arrested under the ITE Law after tweeting about conditions in Papua. His treatment was likely intended to discourage the protest movement at a time when police and the government were facing considerable pressure from students and activists.
In a concerning development for press freedom, there have also been several cases targeting journalists, such as Southeast Sulawesi journalist Mohamad Sadli Saleh, who was sentenced to two years in prison for "distributing information resulting in hatred in the community".
Saleh had written a piece questioning the budget allocated by the Buton Tengah district head to a road construction project. Complaints about journalistic products should of course be dealt with through the Press Council, in line with the 1999 Press Law, rather than through criminal sanctions, but this was ignored.
But even if cases do not always result in convictions, they still result in self-censorship and the policing of speech online. This is sometimes referred to as a "chilling effect" – when people self-censor because of the fear of being targeted by a government law or regulation restricting freedom of expression.
It is telling that one of the main hashtags activists have used to respond to the law is #SemuaBisaKena (which translates roughly as #EveryoneCouldBeAffected). Following the example of online satirist Bintang Emon, it is now not uncommon for Twitter users to finish tweets critical of the government with a tongue-in-cheek disclaimer, such as "of course, I am talking about [country x] here".
It is not clear why Jokowi has moved to revised the ITE Law now, especially because his government has enthusiastically pursued its online critics, including by using the ITE Law. Given how much attention Jokowi apparently pays to social media, it may be just a populist move designed to make it appear as though he is doing something about rapidly growing concerns about freedom of expression online.
This is not the first attempt to revise the ITE Law. Widespread criticism of the law saw it revised in 2016. The maximum prison sentence for defamation under the law was cut from six to four years, reducing the ability of the police to detain suspects or the accused (police can detain individuals suspected of committing an offence carrying a penalty of five years or more).
There were also some minor revisions to improve explanations of certain articles, and the inclusion of an article equivalent to the concept of "the right to be forgotten". But the revision did not touch any of the main problematic aspects of the law.
It is good that the government is finally paying more attention to the serious deficiencies of the ITE Law. But issuing a guide to interpretation will not resolve its fundamental problems: its loose criminal provisions open to multiple interpretations and excessive penalties that are not in line with the gravity of the offences. These provisions simply need to deleted – in a true democracy, defamation should never result in a prison term.
Activists will not be satisfied with promises from police to be more selective in processing cases under the law. It is disappointing that efforts to revise the law appear to be faltering before they have even started. It will make it even more difficult for activists to claw back the freedom of expression promised after Indonesia's transition to democracy more than two decades ago.