The right to freedom of expression in Indonesia is contained in the Article 28 of the Constitution. The Article states “Freedom to unite and gather, express opinions orally and in writing and the other shall be stipulated by the virtue of law.” The Article provides a clear hint that freedom of expression cannot be exercised if not in accordance with the attribution from the law. This hint generates contradiction which questions the essence of freedom of expression and when to express it. The law plays a major role in determining what can be expressed, rather than the decision from the people itself. Once again, Electronic Information & Transaction (EIT) Law will be quite an example of this situation.
There are at least three problematic provisions in the EIT Law. Firstly, Article 27. The Article stipulates ‘any person’ who distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with contents against propriety, gambling, affronts and/or defamation, and extortion and/or threats. The Article can be construed as a way for government to create legislation or policy in limiting contents in internet by prohibiting contents that are deemed to not proper, gambling, and others mentioned in each Paragraph of the article. There are two problems with it. One, the Article against the general premise of net neutrality in which the internet does not favor to any kind content. People are controlled by the policy and regulations on what they want to see and/or read in the internet. With limited access to whatever contents people want, it can backlash the purpose of the law itself that is to enhance people’s well-being. The more vary contents people get, the more they can find creative spaces for themselves, the more room for right to freedom of expression.
The second problem is the determinant factors of the government to state that content is not a content against propriety, gambling, affronts and/or defamation, and extortion and/or threats. People do not know how and why their rights in the internet are being limited. However, it also can be argued that not publishing the determinant factors is part of government authority and such authority is used for protecting public interests which one of them can be about privacy. Privacy in the sense of those prohibited contents may hamper someone’s life.
In 2004, the Constitutional Court of the Republic of Indonesia (hereinafter referred as to ‘Constitutional Court’) through its Decision No. 006/PUU-I/2003 said that the right to privacy is not unlimited and as long as there is regulation and procedural arrangements to rule privacy, the limitation is justifiable. Hence, even though, on one hand the limitation of contents in EIT Law is unclear so that it affects people to exercise their freedom of expression to the fullest, on the other hand, it is can be done for the sake’s of public interests and government’s as well.
The other two provisions of EIT Law that came into scrutiny are Article 28 and Article 29 of the EIT Law. Both Articles lay the same logic of the Article 27 that is to limit what contents to exist in the internet. Nonetheless, Article 28(1) highlights the importance of consumers. If there is consumer loss caused by any person who knowingly and without permission to spread information that is false and mislead in electronic transaction can be punished whereas, Article 29 is about when any person disseminate knowingly and without authority video containing threats or scary contents that are aimed personally can be punished as well.
Towards more practical matters, the Ministry of Communication and Information of the Republic of Indonesia (hereinafter referred to as ‘Ministry of Communication and Information’) imposed Ministerial Decree of Communication and Information No. 19 of 2014 on Websites with Negative Contents Control. The Decree aims to provide clean and comfortable internet for the society. The Decree itself is further stipulation of EIT Law. It is paramount to note that the Decree is in the process of a judicial review (as of this writing) in the Supreme Court of the Republic of Indonesia which signals that the Decree is potentially premature.
The substantive parts of the Decree can be divided into three. First and foremost, provision related what it meant by negative contents in the internet. Article 4 of the Decree stated that pornography and other contents that are deemed to be illegal in national legislations (which includes the provisions in EIT Law) are regarded as negative contents. Furthermore, the Decree also take society’s roles in making the internet clean and comfortable by providing mechanism to report if there is negative contents which Article 10 of the Decree said public can report through e-mail or online platform provided by the government.
The last important substantive part of the Decree is about the role of Internet Service Provider (hereinafter referred to as ‘ISP’). Article 8 of the Decree regulates that ISP can do independent blocking or using service provider for internet blocking. The blocking itself is aimed for sites that are listed in government’s database called ‘TRUST Positif.’ If the ISP does not do the required blocking, then the ISP can be sanctioned according to the law. Moreover, according to Article 9 of the Decree, ISP must renew its data at least once a week and for urgent renewal, it is must be done within 24 hours.
There are two major issues of the Decree. One, the Decree allows blocking of what regarded as negative contents based on government’s lists. Even the ISP that is supposed to be a neutral party so that it cannot block what users want to look upon in their internet, is made to actively involve doing the blocking. There are three conditions for neutral network or an open internet namely no blocking, no throttling, and no paid prioritization. The Decree which allows blocking hampers the first condition. As a result, the freedom of expression cannot be carried out to the fullest in the internet as blocking occurs. It is the people who have the decisions on content, not the government, let alone the ISP.
Second major issue is that the Decree puts “privacy” as one of the reason of blocking which brings a direct clash between the right to privacy that the government is willing to protect versus the right to freedom of expression that is being degraded by the existence of the Decree. Article 10 Letter (c) of the Decree regulates that “Report from the public can be categorized as urgent report if the report links to: 1. privacy; 2. child pornography;…”.
Moreover, the Decree did not specify what is construed by privacy. It is important to determine what construction of privacy will be used as a basis to block one’s internet content or to recognize it as negative for two reasons. First reason is that privacy has many dimensions. Privacy, in general context, can be construed as to be absent from interference. When it comes to legal context of privacy, there is a need to have a comprehensible construct of it. It is perhaps that what an individual can exercise from privacy in broad conditions cannot be accepted by the legal notion of privacy.
Second reason is the absence of contractual breakdown of what privacy means according to the law (in this case is the Decree) can open a room for corrupt individuals to use their powers to abusively interpret the term. As the old equation goes, “corruption equals monopoly plus discretion minus accountability”. In connection with the lack of explanation of privacy in the Decree, the individual who is in the position to enforce the law may use his or her personal interpretation of what it meant by privacy and use it as a sentiment to block one’s content on the internet without having a system that requires him or her to provide reasons of such interpretation and to disclose such reasons in accountable manners to the public.
Those two above reasons why the Article 10 Letter (c) of Ministerial Decree of Communication and Information No. 19 of 2014 on Websites with Negative Contents Control is problematic can make normative clash between protecting privacy and freedom of expression even worse especially in answering these intriguing questions: to what extent privacy can be used as a justifiable reasons to limit freedom of expression in Indonesia? Letting the term “privacy” in the Decree without any explanation opens chances to an abusive interpretation of privacy. The impact will be that freedom of expression will also be cold-heartedly degraded. It will await persecution as Damocles Sword.
Additionally, questions like “how free is freedom of expression in Indonesia so that it is not disrupting privacy of others?” and “who should decide in both cases, is it the people, government, or the private entities so that the right to privacy and freedom of expression will be fairly assess?” might put forward immaculate (and almost endless) debate toward the co-existence of those two rights in Indonesia. Even though existing legal instruments, both international and in Indonesia itself seemingly have given the answers, yet those problematic questions still stand when real case happens.
In summary, the dialogues on internet issue is still developing in Indonesia. Recently, discussion on network neutrality came into light. Indonesia national law namely EIT Law and Ministerial Decree of Communication and Information No. 19 of 2014 on Websites with Negative Contents Control are still not consistent with one of the principles of net neutrality that is “no-blocking”. On top of that, the prescription in both legislations bring right to privacy and freedom of expression into a normative clash. There are still many unanswered questions. Two of them are what is deemed as privacy according to both legislation and to what extent it is supportable to use the right to privacy as a ground to limit freedom of expression. Being the case, the discourse of network neutrality in Indonesia must carefully embody the importance of the co-existence between right to privacy and freedom of expression.