Indonesia: Revision of Electronic Information and Transactions Law Considered

It was reported on February 1, 2016, that the Indonesian House of Representatives (Dewan Perwakilan Rakyat) will soon begin considering revisions to the 2008 Law on Electronic Information and Transactions. (Muhamad Al Azhari, Reduced Jail Time Sought in Revision of Controversial ITE Law, JAKARTA GLOBE (Feb. 1, 2016).) The Law has been controversial for its harsh punishments, which may now be revised. The current penalties for any acts covered in the Law are specified as up to 12 years of imprisonment, sometimes with large fines, and penalties in some cases can be increased by a third or by two-thirds. (Id.; Undang-Undang Republik Indonesia, Nomor 11 Tahun 2008 Tentang Informasi Dan Transaksi Elektronik (Electronic Information Law), Ch. XI, House of Representatives website; Law of the Republic of Indonesia No. 11 of 2008, Concerning Electronic Information and Transactions, Ch. XI, FLEVIN.COM.)

Controversial Article 27

Article 27 of the Law, which punishes distributing “contents against propriety” and also gambling-related, defaming, or extorting and threatening content, has been a particular focus of reform plans. Distributing these types of content is subject upon conviction to a punishment of imprisonment for up to six years and/or a fine of as much as Rp1,000,000,000 (about US$73,300). (Electronic Information Law, arts. 27 & 45.) The defamation clause in particular has been criticized as potentially leading to suppression of dissent. (Dylan Amirio, Revision of ITE Law Includes Reduction in Prison Term, JAKARTA POST (Dec. 8, 2015).) These provisions were discussed in December 2015 by Communications and Information Technology Minister Rudiantara, who said this punishment should be reduced. Rudiantara stated, “[r]egarding defamation and hate speech, there must be an efficient method to prevent this from happening. Arresting the individuals before questioning them is not the best way to enforce it. I would say a sentence of four years would prevent the police from taking up cases so hastily.” (Id.)

Article 27 was the basis for 90% of the defamation cases initiated from 2008 through 2015, according to a report by five non-governmental organizations, the Alliance of Independent Journalists, the Digital Democracy Forum, the Indonesian Center for Deradicalization and Wisdom, the Indonesian Institute for Criminal Justice Reform, and the Legal Aid Institute for the Press. The number of such cases nationwide increased to 44 in 2015, compared with 41 in 2014. (Id.)

Damar Juniarto of the Southeast Asia Freedom of Express Network also described the Law as a threat to free speech and noted that unless the revision is accomplished soon, the Law would undermine the role of the Internet in fostering the free expression of views. (Id.)

Background: Well-Known Cases

The Law has been used in a number of famous prosecutions, including the case against a popular singer, Nazril Irham, in 2010. Sex videos in which he and two friends allegedly appeared were widely available online, and he was sentenced to three and a half years of imprisonment, although he actually served one year. (Al Azhari, supra.) In many other cases, the subjects themselves are not well-known. In one instance, in which the sentence was eventually overthrown by Indonesia’s Supreme Court, a homemaker named Prita Mulyasari was originally found guilty of defamation and given a six-month suspended sentence for complaints she expressed in private emails about the Omni International Hospital in Tangerang, a city located about 15 miles west of Jakarta. (Id.)

In 2014 a law student complained online about the city in which she was studying, Yogyakarta. The city, located about 265 miles southeast of Jakarta, is known for educational institutions and is also called Yogya. The student wrote on a social media website thatYogya is poor, stupid and uncultured.” After being found guilty of defaming the city on April 1, 2015, by the Yogyakarta District Court, she was sentenced to two months in jail, a fine equivalent to $770, and six months of probation. (Yenni Kwok, A Student Got Prosecuted in Indonesia for Moaning About Her College Town, TIME (Apr. 8, 2015).) Also on April 1, 2015, a woman from the city of Bandung was sentenced by the Bandung District Court to five months of imprisonment and a $7,700 fine for defaming her husband. She had sent private messages to friends via Facebook complaining of being subjected to domestic violence; her husband had hacked into her account and seen her messages. (Id.)

Next Steps

According to Mahfudz Siddiq, Chairman of the House of Representatives’ Commission I, the body that will deliberate on the legislation containing revisions to the Law, discussions can begin because Minister Rudiantara has submitted a draft containing the proposed changes. (Al Azhari, supra.) The revision of the Law is listed on the House of Representatives’ priority legislative agenda. (Prolegnas Prioritas (2016) [Legislative Priorities (2016)], PROGRAM LEGISLASI NASIONAL (see no. 12); Tentang RUU [About the Bill], House of Representatives website (last visited Feb. 9, 2016).)

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