The Discrepancy between the Public and the Politicians

With the 2024 general election on the horizon, DPR members are getting busy preparing for another run of political campaigns in their respective constituencies. This puts a major stall on the legislative process, as many of the members are absent from the discussion on UU ITE.

Thus far, Commission I has decided to only revise six out of 56 UU ITE articles in total and considered a few more additions, signaling a less enthusiastic approach. There is a possibility that the UU ITE revision would be completed faster than the PDPA process, however. The intention to move hastily also reveals another reason as to why the discussion for the revision has been taking place behind closed doors.

There is a strong force in the DPR opposing the demands of the civil society coalition for a comprehensive change in UU ITE as they believe this is the momentum to rearrange the most vital law to counter cybercrimes in Indonesia. The coalition – which consists of human rights defender groups, journalist associations, digital activists and a few more – push for the DPR to examine the act thoroughly, not only to address the criminal part of the act which is the main discussion point these days.

The public demands for UU ITE to be scrutinized thoroughly is a step in the right direction: the fact is, the draft bill that is currently being amended does not take into account the recently passed Penal Code.

In 2022, the House and the government agreed on revising the Penal Code that has been in place since the early days of independence. Even though there have been uncountable rejections throughout the process of revising the Penal Code, eventually the new Penal Code was promulgated on the second day of 2023.

As the government’s proposal to revise UU ITE was only submitted in 2021, the fact that there is a new Penal Code in 2023 suggests that the government should have redrafted the UU ITE bill so that the discussion in the DPR’s Working Group could be in line with the new Penal Code.

In fact, during the meeting to accept the Surat Keputusan Bersama (Joint Decree Letter – Surpres) to be the bill, Rizki Natakusumah, a Commission I member from Partai Demokrat, raised the issue that the Surpres should have been reconsidered by the government. His idea was also supported by Christina Aryani, who stated that the new Penal Code rendered the Surpres irrelevant.

Nevertheless, the Working Group chairman decided to move on with the current Surpres and any necessary changes to the bill will be taking place during the revision process. Yet, it has not been smooth-sailing ever since.

Complexities in the Legal Aspect

Every single entity in the UU ITE Working Group, including DPR members and some representatives from the government, should bear in their mind that they must not go against legal stipulations in other laws and acts before they attempt to revise UU ITE. This is a tricky business as the Surpres of the UU ITE bill arrived in the DPR before the validation of the Penal Code Act took place in 2023.

In other words, by right they should have redrafted the bill to reflect the parameters of the new Penal Code that explicitly invalidate numerous articles from the existing UU ITE, such as articles 27 (1) & (2), 28 (2), 30, 31 (1) & (2), 36, 45 (1) & (2), 45A (2), 46, 47, and 51 (2).

Even more complicated is the fact the new Penal Code will only come into effect on 2 January 2026. That means the lawmakers should consider the possibility of the absence of law before 2026 if those aforementioned articles are to be accepted to be taken out of the bill.

Commission I members of the Working Group did not participate in the legislation of the new Penal Code last year, which was handled by Commission III. They seemed annoyed when their opinion and authority were not respected by the Commission III members who removed those articles from the existing UU ITE without Commission I’s blessing. Even worse, Commission I members were not consulted by their counterparts in Commission III when the discussion of the Penal Code was addressing criminal acts in the digital space.

In practice, Commission I is of the opinion that several aspects of the Penal Code about cybercrimes are not definitively adequate. For instance, Article 27 (1) UU ITE which regulates the restriction of pornographic content circulation in public was replaced by a similar arrangement in Article 407 Penal Code.

Nevertheless, the latter is considered not sufficient by the Working Group members as it does not explicitly forbid the act to “transmit” such content. Article 407 only mentions “broadcast” which is different from “transmit” from Commission I’s perspective. Meanwhile, the Explanation Part of Article 247 of the Penal Code explains that the act of “broadcast” encompasses “transmit”.

Eventually, the Working Group agreed to redraft Article 27 (1) of UU ITE to accommodate the term “transmit” from which possible excessive punishment could arise in the future as the two regulations – Article 27 (1) UU ITE and Article 407 Penal Code – might be taken as a cumulative charge. 

The same pattern of confusion also takes place in Article 27 (3) regarding defamation and slander. The existing act forbids anyone to abuse someone’s dignity in the public space through unproven accusations in the forms of digital information/documents.

This article has been misused even by those in government. Journalists and concerned citizens alike have been sent to jail for reporting sensitive issues or cases. Apparently, this controversial article has been addressed and regulated in the Penal Code, which renders its inclusion in UU ITE somewhat redundant. However, the Working Group decided to incorporate this element still, citing that the Penal Code does not specifically address defamation in the digital space.

The pattern of repeated articles in the Penal Code and UU ITE creates the problem of redundancy which will only breed more situations of legal uncertainty in the future. The possible emergence of problematic multi-interpretation was one of the reasons why the government wanted to revise UU ITE in the first place, but this entire episode shows that little has changed.

All in all, this concern of redundancy could be alleviated if the closing part of the UU ITE contains transitional provisions. At the closing pages of UU ITE, the lawmakers could provide a particular provision that all of the articles above will not be effective once the Penal Code comes into effect on the second day of the year 2026. If this is the case, one should not be worried about the possibility of law redundancy as UU ITE will be overruled by the Penal Code in the future.

The big question now is this: does the Working Group have the courage to produce a law that will only be relevant for less than three years?

Conclusion

With the amendment process taking place behind closed doors, it has been a challenging task to seek a piece of good news from this entire process. The revision process can be a cause of concern for observers of cyber law in Indonesia as this not only relates to how criminal acts in the digital space are being managed, but also how democracy prevails in the future.

One should not be surprised as to why it remains difficult to guarantee freedom in the digital space in Indonesia. Today’s lawmakers are in favor of a big state approach when it comes to managing activities in the digital space.

One bright side from this whole conundrum is the fact that the lawmakers endeavor to ensure children’s digital protection is through stricter rules on digital platforms.

Aside from that, further debates on how criminal acts in the digital realm are regulated, in their context with the Penal Code, will inevitably occur post-amendment which is likely to be finalized circa August 2023.

The anticipated outcome indicates that the struggle to reform Indonesia’s cybersecurity is a long and winding road. There are disagreements from legal perspectives, especially when it comes to the attempt on striking the balance between freedom and restriction in the digital space. That attempt is hardly attainable as the cyberspace is full with noise and chaotic in nature. If that were to be the baseline, UU ITE should not be considered an omnibus law that was intended to be the government’s silver bullet solution to all problems in the digital space. Other lex spesialis acts on cyberspace should be considered.

Introduction

Indonesia enters another stage of cyber governance when the country’s authorities opened talks with Dewan Perwakilan Rakyat (House of Representatives – DPR) to amend Undang-Undang Informasi dan Transaksi Elektronik (Electronic Information and Transaction Act – UU ITE) earlier this year.

UU ITE has been fraught with controversies ever since its introduction in 2008 and its first amendment in 2016 did not manage to abate these. The controversies mainly relate to the government’s effort to stifle the freedom of speech and expression in the digital space, inviting backlash from civil societies, private sectors, academicians and international actors.

The government has responded to this by issuing Surat Keputusan Bersama (Joint Decree Letter – Surpres) on the Guidance of Implementation Criteria for UU ITE by the Minister of Communication and Information, Attorney General, and Head of Indonesian Police on June 23^rd 2021.

However, due to the inadequate legal status of such a letter, the government still has to work with the DPR to revise the existing act to serve society with a better legal ground, especially in the cybersecurity sector. Such is the only way to stop further controversies.

Despite this, more complexities arise as soon as the DPR opened the discussion with the government to amend UU ITE. These are signified by a closed-door amendment process, a complicated legal drafting and a wide gap between public aspiration and facts on the ground.

Background

UU ITE is Indonesia’s first ever cyber law, introduced in 2008. Commission I of the DPR is assigned to cover issues in information, communication, broadcasting and internet affairs, alongside its other focus on security, military and intelligence issues. In this way, Commission I has been working as the parliamentary partner for the Ministry of Communication and Information to develop Indonesia’s digital governance as a whole, including the electronic information and transaction that have been the key chunk of UU ITE.

Fast forward to 2016, the act was revised for the first time. Changes were made in the segments on criminal acts and their punishment, the introduction of the right to be forgotten, the recognition of electronic information and document as legal evidence before the court, and cyber law enforcement.

The initial irregularity in UU ITE could be detected as early as when it was first formulated in the DPR, when Commission I took a bit too much of Commission XI’s responsibilities to govern financial matters and Commission III’s assignment to regulate criminal acts in general.

Commission XI, another chamber of the Indonesian House, is authorized to work with numerous Indonesian financial, banking, and monetary institutions which makes it more relevant to handle the transaction aspect of UU ITE. On the other hand, Commission III has the duty to ensure the supremacy of law in Indonesia, including how the Penal Code is supposed to be the legal foundation of this cyber law, parts of which UU ITE is supposed to administer as well.

Therefore, the ideal combination of groups to handle the initial drafting of UU ITE was supposed to be the three commissions mentioned above, to ensure that the three major areas of the law – namely cyber, transaction and criminal laws – are addressed accordingly. However, this step was not taken by DPR’s leadership board who preferred to allocate the law-making process to a single unit, Commission I.

Another way to examine whether UU ITE is viable and coherent is to separate those major areas into separate acts, with each specializing in specific aspects encompassed by UU ITE (lex spesialis).

The DPR’s inability to legislate properly is a significant concern for the future of lawmaking in Indonesia, not only in the sphere of cyberspace but also other issues not related to the digital space.

Since its implementation, UU ITE has seen hundreds of people being sent to jail. Names such as Muhammad Arsyad, Ervani, Anindya Shabrina, Deni Erliana, Zaki Amali and – the most popular of all – Baiq Nuril were among such individuals sent to jail.

Most of them were brought to the court by power holders in the name of defamation when the suspects were trying to reveal the ugly truth to the public or try to self-defend. The legal grounds provided by UU ITE undoubtedly accommodate the reports filed to proceed to the investigation stage. In fact, the conviction rate of those cases is notably high, at 88%.

SafeNet, a digital rights defender organization, recorded that 2022 had been the most terrible year of UU ITE controversies in the last nine years, with 97 cases of criminalization against those who express themselves. That number tripled from 30 cases in 2021.

As mentioned, the government produced the JDL to reduce the number of cases in 2021, whereby law enforcers were guided not to easily take criminal cases on the basis of UU ITE. However, that hope only turned into smoke as UU ITE cases flagrantly increased by 80% after the JDL came into effect.

The problem did not only lie with the fact that law enforcers did not understand the JDL. The legal status of the JDL has also been questioned by the public as it only applies to the executive branch while the court may not take the JDL substance into their judiciary consideration.

All of these have pressured the government to revise UU ITE. Nevertheless, the way that it is being carried out currently has only invited more headaches.

Closed Doors in the House

On 16 December 2021, the government formally submitted Surat Presiden (President’s Letter) containing a proposal for UU ITE revision to the DPR, but the legislative branch only accepted the proposal more than a year later on 13 February 2023.

The reason for that massive delay was the prolonged legislation process of the Personal Data Protection Act (PDPA) that was only completed in the closing days of 2022. Furthermore, the DPR commissions are not allowed to handle more than one at once, which in this case was Commission I which was formulating the PDPA. Another reason for the delay was merely politics, which is only clear to the leadership board of the DPR.

An act with lots of controversies such as UU ITE has a big political appeal for the government and members of the legislative body. There is an argument to be made that the controversial UU ITE could draw more attention to various political campaigns as the nation nears the general election in 2024.

On the contrary, mismanaging such a hot topic could create waves of backlash. The latter scenario, unfortunately, is what has been taking place over the last five months, with the head of Commission I, who is also the chairman of the UU ITE Working Group, decided to continue the process closed-door, away from public ears and eyes. His reasoning was that too many sensitive matters were being discussed in the meeting, leaving them with a decision no decision but to close the doors.

The private sector and civil society coalition have registered their rejection against this decision as they want to know that their aspiration is being heard and addressed properly in the Working Group. They do not want the elected representatives to repeat the same mistake they made back in 2016.

To be continued in Part Two.

Introduction

The proposed revision of the Information and Electronic Transaction Law (UU ITE) No.19/2016 by the government has led to speculations from civil society groups and members of the opposition that the government intends to expand its powers to include other avenues of criminalization under to an already ambiguous clause. The proposed revision will allegedly include a guideline to interpret the existing defamation clause despite calls from the opposition and public to completely remove the clause. These calls arose from perceiving the government being overzealous and having skewed interpretation of what constitutes as defamation. Due to recent rises in government arrests under the defamation clause, an attempt to further specify the clause with minimum community involvement raises concerns with the government’s growing authoritarian nature. Clamping down on government critiques on the internet only adds to further polarize Indonesian society under pro-government and opposition camps. The government as a political entity should instead focus on minimizing polarization by being a moderating force instead of resorting to restraining its citizens right to the freedom of speech.

The Defamation Clause: An Attempt to Maintain Stability in an Increasingly Politically Polarized Society?

The inclusion of the defamation clause was first enforced as law back as UU ITE No.11/2008before its eventual amendment as UU ITE No.19/2016. The government’s rationale for the law was to limit the dissemination of negative content as the number of internet users in Indonesia increases. The ambiguous nature of the defamation clause has resulted in many cases of individuals invoking the law against one another to settle petty disputes. It has also been allegedly abused by the government to criminalize political dissidents. According to an interview with the Commission for Missing Persons and Victims of Violence (KontraS ) Deputy Coordinator Rivanlee Anandar mentioned that in its current implementation, police officers are given jurisdictional mandate to summon alleged suspects to the police station for questioning without prior consideration of the context, speaker, intention and the content of the speech making this a case of “guilty until proven innocent”. During an interview with the Ministry of Communication and Informatics (Menkominfo) Spokesperson Dedy Permadi, he mentioned that the government’s solution to remedy this debacle will be to provide a “guideline” for the interpretation of the defamation clause. However, the revision would ostensibly be favourable to the government, will only further open avenues of criminalization of political dissidents.

It is worth noting that despite its well-intentioned purpose to ensure a healthy internet space for its citizens, the same law has numerously been abused to silence political critiques. It is worth noting that there are indications of the rise in abuse of the defamation clause occurring during the course of President Joko Widodo’s administration. The rise in these numbers was largely attributed to the increasing political polarity of Indonesian citizens as a result of the heated presidential elections back in 2014 and 2019. Rivanlee mentioned that of the reported 31 Indonesians were currently being processed for crimes under the UU ITE Law, a majority of these cases were for alleged defamation against the President, Police, local government institutions and high-ranking political appointees. However, it is imperative to view this data within the context of the existing political dynamics occurring during the contentious presidential elections in the past. During the 2014 and 2019 elections, both pro-Jokowi supporters and opposition actively used political buzzers in social media to sway the public. Some of these allegations towards the government at times took an inciting tone for example accusing Jokowi as a communist, anti-Islam and a Chinese puppet etc. Some of these allegations were outlandish and misleading that the election was no longer a matter of which candidate has a better program for the country, but who is a better Muslim, more anti-communist and anti-foreign interest. Some of the fake news included incitements that provoked acts of treason against a legitimately elected government.

The Problem with Exploiting Political Polarization

One underlying theme seems to highlight the root problem of the ongoing plan to revise the UU ITE Law: growing polarity. This has manifested into a war of words between both pro-government supporters and the opposition on the internet with one crying foul against the other over the abuse of the defamation clause. This growing political polarization is well illustrated by a survey released by Indikator Politik Indonesia (IPI) in 2020 which showed that from a total of 1200 respondents 36% believed that Indonesia’s democracy was deteriorating while the same survey also found 57.7%  believed that the government had used excessive force towards people with diverging views. This data shows a growing perception of the government’s willingness to criminalize its citizens for expressing their political opinion as a quick fix to issues that stemmed from political polarization of its people. Ironically, there are also instances the government has also indirectly endorsed its supporters to use the same tactics used by his opposition against them in the internet which only fuels the growing mistrust towards the government in terms of allowing constructive critique crucial for the functioning of a democratic society. The growing mistrust with each other has led to a political deadlock over what the government views as an attempt to sabotage a democratically elected government and the opposition’s claim of the government growing increasingly authoritarian.

This phenomenon underlines a flaw in the Indonesian democratic system where instead of finding ways to reduce polarization, both parties seek to use it to achieve political ends. Both the opposition and the government as major players with a large political following should serve as a moderator instead of actively instigating attacks against the other. The government should also leverage on its influence on its supporters to be open to constructive criticism especially towards its programs instead to resorting to buzzers to silence critiques and evoking the defamation clause. The opposition as a legitimate representative of the political interests of the society should also leverage its influence especially in the areas in encouraging proper conduct of expressing their dissatisfaction to the government instead of resorting to personal slander and spreading false news. In a well-functioning democratic society, the first response to such polarity would not be to suspend the freedoms of its citizens, instead address the underlining cause of political polarity. It is worth noting that the existing UU ITE has clauses against the discriminatory use of race, ethnicity, religion and ethnic groups (SARA). The government should instead strengthen such laws in its government institutions and political parties should play a role in promoting a self-regulating normative body that prevents the use SARA issues towards its followers and members. Culminating from this, the government could consider removing the defamation clause altogether.

Finding a Middle Ground

There is no denying the government’s right to protect its interest to carry out its development agenda. In doing so, however, the government could do better than evoke authoritarianist ideals to subdue critiques from civil society and the opposition. A middle way around the ongoing debacle should be one of bridging differences, reconciliation and commitment. One being the involvement of civil society groups and members of the opposition with the ongoing government task force’s revision of the UU ITE via feedbacks and recommendations. Public involvement with the project will ensure that plans to provide guidelines to the defamation clause does not infringe the right of Indonesians to voice their political opinion and more importantly come up with agreeable standards on how to determine an act as defamation. Secondly, the government should leverage its position as a role model to educate and promulgate proper ways to voice political opinion that is respectable and fair towards its political institutions, political parties and voter base instead of resorting to arrests made under the defamation clause. This advice should also be extended to opposition parties as legitimate representatives of Indonesia’s democratic institutions. Political parties should be self-regulating and put clear guidelines on how proper politics are conducted and should not deviate from properly addressing the shortcomings of the incumbent government’s programmes.

It is also advisable that the government applies an internationally acknowledged standard of determining the difference between free speech and hate speech under the Rabat Plan of Action in which Indonesia is a signatory to. In this aspect, the government or the police must pass a rigid threshold test for expression that are considered criminal offences mainly through the context of the critique, the speakers position in society, the speakers intent, content or form (whether it contains incitement, extent of the free speech and likelihood to incite crime.