Restoring Norms in ITE Law
The guideline is expected to support better enforcement of the ITE Law, in particular by prioritizing the approach of restorative justice.
Public criticism over the controversies related to the implementation of the Law on Electronic Information and Transactions on the ground has received positive response from the government.
Coordinating Minister for Political, Legal and Security Affairs Mahfud M.D. has followed up on President Joko Widodo\'s instruction to evaluate and review the Law on Electronic Information and Transactions (ITE Law) by forming an assessment team that comprises two subteams.
Subteam I, which drafts guidelines on the technical implementation of the controversial articles that are often used by law enforcement officers, or “rubber articles”, has completed its task.
Meanwhile, Subteam II is preparing the substance for revising the ITE Law.
The implementation guideline is not part of the legislation, but rather is a technical guideline for law enforcement officers that has been issued in the form of a joint decision (SKB), signed on 23 June by the Minister of Informatics and Communication, the Attorney General and the National Police chief and witnessed by the Coordinating Minister for Political, Legal and Security Affairs.
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The guideline is expected to support better enforcement of the ITE Law, in particular by prioritizing the approach of restorative justice. This approach involves resolving ITE problems without having to go through the judicial process, but by strengthening the principle of ultimum remedium, which means that criminal justice must be used as a last resort in law enforcement.
Meanwhile, the SKB comes with an appendix consisting of guidelines for the enforcement of the “rubber articles”. These controversial articles include Article 27 Paragraph 1 on electronic content that violates decency, as well as Article 27 Paragraph 2 on content that encourages betting or gambling and Article 27 Paragraph 3 on offensive and defamatory content.
They also include Article 27 Paragraph 4 on extortive and/or threatening content, Article 28 Paragraph 1 on fake news that harms consumers, Article 28 Paragraph 2 on content with the potential to spreads hate based on ethnicity, religion, race and social groups (SARA).
The other articles are Article 29 on content that intimidate through violence, Article 36 on weighting sanctions based on losses incurred by acts defined as crimes under the ITE Law.
It is these articles that have been the most highlighted and considered as problematic.
More democratic, avoids criminalizing press
The government, through the issuance of this joint decree, seeks to limit the broad interpretation of these articles. The definitions of these controversial articles have become more definitive and firm, and eliminate multiple interpretations.
For example, if there have been impressions and views so far that individual criticisms and views could be subject to criminal prosecution, particularly in relation to Article 27 Paragraph 3 of the ITE Law, the guideline provides a clear definition of what constitutes insult and defamation that is clearly different from criticism and opinion.
A mural about the rise of fake news (hoax) on social media under a bridge in the Rawa Buntu area, South Tangerang, Banten, Sunday (20/6/2021).
It defines insults and/or defamation in reference to articles 310 and 311 of the Criminal Code (KUHP), namely "attacking someone\'s honor by making a public accusation" (Article 310 of the Criminal Code).
Article 311 of the KUHP refers to the act of accusing someone in which the perpetrator knows the accusation to be untrue. It is further clarified that the offense contained in Article 27 Paragraph 3 of the ITE Law is complaint as stipulated in Article 45 Paragraph 5 of the ITE Law.
As a complaint, it is the victim who must file a report with law enforcement, except in cases where the victim is a minor or under a guardianship. The victim, as the reporting party, must be an individual (natuurlijk persoon) with a specific identity, and may not be an institution, corporation, profession or position.
The explanations in these guidelines are intended to eliminate the practice that has often occurred, namely that someone other than the victim filed the legal report. The complainant was not the victim as was clearly identified in the digital content. So far, companies, professional associations or government agencies were also able to file a report on defamation. This interpretation has been corrected in the guideline.
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> ITE Law Revisions Deemed Urgent
> Criticism and Retrogression of Democracy
Criticisms and opinions against the government are now excluded from the criteria of punishable offenses under the ITE Law revision. This guide comes as a breath of fresh air for the press.
It is stated that any digital news coverage from media organizations that are journalistic works according to the provisions of Law No. 40/1999 on the press, any issues should be processed using the available mechanisms in accordance with the Press Law as lex specialis (taking precedence), and are not subject to Article 27 Paragraph 3 of the ITE Law.
In cases that concern media coverage, the Press Council must be involved. On the other hand, if professional journalists upload their personal writings on social media or the internet, the ITE Law still applies, including Article 27 Paragraph 3. This strengthens the principle that the provisions contained in the Press Law apply to media articles, even when they are published online.
If a dispute occurs because of content in a news article, it is to be resolved by fulfilling the victim’s right to make a published clarification in the “offending” media. It is not a punishable crime. For this reason, the involvement of the Press Council is important.
Understanding these provisions are very necessary, so that the ITE Law is not applied arbitrarily when dealing with news articles from media organizations. The ITE Law applies only to electronic information distributed by individuals (people), on social media accounts, fake media (media that do not comply with the provisions of the Press Law) and digital platforms.
Therefore, even if you are a professional journalist, if you upload personal writing on social media or the internet, the ITE Law still applies, including Article 27 Paragraph 3. This means that journalists are not above the law. However, media organizations have independence in accordance with the applicable provisions in the Press Law.
Clarifying offenses, reducing threats One article that has also been controversial and has elicited frequent public criticism is Article 28 Paragraph 2 on spreading hate. This article has often been accused of being loosely worded to ensnare government critics.
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=A participant finishes making a mural about the general election (election) in the 2019 Election Mural Contest organized by the General Election Commission (KPU) of South Kalimantan Province in Banjarmasin, Wednesday (27/2/2019).
The guideline on the article reads: "Law enforcement officials must be able to prove that the posting [or dissemination] of content as referred to in this article was intended to call on or incite the public, or to pit [people] against each other, with an aim to spread hate and/or hostility towards certain individuals or groups of SARA.”
This means that not every statement conveying dislike for other individuals or groups circulating on social media fall under this article. No. This article really applies only to people who spread content via the internet with a deliberate intent to incite or provoke the public to demonstrate hate or hostility towards others based on SARA. The definition of “societal group” under SARA also refers specifically to Constitutional Court decision No. 76/PUU-XV/2017 as “human groups outside ethnicity, religion and race”.
Both must be aimed at individuals and groups of people who are different because of their political, socioeconomic or other orientations outside of their ethnic, religious and racial identity.
So, circulating information with an intent to invite or incite others to hate and/or show hostility is indeed prohibited. Both must be aimed at individuals and groups of people who are different because of their political, socioeconomic or other orientations outside of their ethnic, religious and racial identity.
This guideline also clarifies the meaning of Article 36, which contains additional criminal sanctions for violating the articles of the ITE Law. Article 36 is indeed often used to support other articles that carry penalties of less than five years in prison.
With the addition of Article 36, the maximum sanction is 12 years in prison and a suspect can be detained during the legal process. In order to avoid the inappropriate use of this article, the accompanying SKB guideline suggests that the article be reverted to its original draft form.
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It also advises that Article 36 of the ITE Law be used only in the event that the victim of an act that violates Articles 27 to 34 of the ITE Law has experienced real material losses. This means material losses as a direct result of the offense, not indirect losses. Nor can it be potential losses or immaterial damage.
This makes it clear that Article 36 is still valid and can be enforced, but on condition that the offense has incurred material losses for the victim. If the damage is immaterial, such as an estimated loss, this article cannot be used.
Henry Subiakto
These are some of the contents of the implementation guideline that has just been issues. This guideline is important to complement the ITE Law, pending the revision or inclusion of the cyber law norms in the new Criminal Code.
Henry Subiakto, Professor of FISIP Unair, Media Law Lecturer
(This article was translated by Kurniawan Siswoko).
