Indonesia: Newly revised ITE Law threatens freedom of expression and must be amended
The second revision of Law No. 11 of 2008 on Electronic Information and Transactions (ITE Law), which was passed on 5 December 2023, does not comply with international human rights law and standards on freedom of expression and information, said the International Commission of Jurists (ICJ) today.
On 5 December 2023, the Indonesian House of Representatives passed the bill for the second revision of the ITE Law into law.
The ICJ is gravely concerned that the revised ITE Law fails to rectify the main flaws of its previous iteration, which has been used to wrongly criminalize and restrict free expression in online spaces. The criminal provisions contained in the revised law are inconsistent with international human rights law and standards, with added provisions having the potential to exacerbate repression of online expression.
“The retention of overbroad criminal provisions in the revised ITE Law signals the continuing failure of Indonesia to comply with its international human rights obligations to respect and protect the right to freedom of expression,” said Melissa Upreti, ICJ Regional Director for Asia and the Pacific. “The revision process lacked transparency, and important recommendations made by civil society to remove the ITE Law’s fatally flawed provisions have been disregarded.”
The ICJ is also concerned that the drafting process for the second revision was opaque, with public feedback on the draft having been ignored. The lack of transparency in the drafting process contravenes Indonesia’s obligation to ensure the effective exercise of the right to participate in public affairs, as guaranteed under article 25 of the International Covenant on Civil and Political Rights (ICCPR).
“The second revision of the ITE Law failed to capitalize on the opportunity for the Indonesian authorities to strengthen the protection of online freedom of expression and to reaffirm its commitment to respecting and protecting human rights in the online space. It is imperative that the revised law repeals or substantially amends the overbroad criminal provisions that have been used with concerning frequency to arbitrarily suppress online freedom of expression and create a climate of fear,” said Upreti.
In light of these concerns, the ICJ calls for the repeal or substantial amendment of the revised ITE Law to bring it in line with Indonesia’s human rights obligations to respect and protect the right to freedom of expression and information, through a transparent process that involves the effective participation of civil society.
Criminalization of free expression online
The revised ITE Law retains the overbroad and vague provisions criminalizing “contents that violate propriety” (article 27(1)); criminal defamation (article 27A); and “content that incites, persuades or influences” others that “causes feelings of hatred or hostility” based on protected characteristics (article 28(2)). A violation of these offences may result in imprisonment and criminal fines if found convicted (articles 45 and 45A).
Additionally, the revised law incorporates a new provision that imposes criminal liability for intentionally disseminating content that a person “knew contained false statements that cause public unrest” (article 28(3)), which may result in imprisonment if found convicted (article 45A(3)).
Any restriction on the right to freedom of expression and information must comply with the elements of legality, legitimate purpose, necessity and proportionality required under article 19(3) of the ICCPR. This means that any restriction on the right to freedom of expression must be based on law that is precisely worded, and be necessary for and the least restrictive measure to respond to a legitimate aim. The only aims identified as legitimate in article 19(3) are ensuring respect of the rights or reputations of others; or for the protection of national security, public order, public health or morals.
The criminal provisions in the revised law are unnecessary for any legitimate government purpose and risk making criminals of large numbers of ordinary internet users, and chilling many others from speaking online. They are clearly inconsistent with Indonesia’s obligations under article 19 of the ICCPR to guarantee the right to freedom of expression and information. They threaten unwarranted criminal sanctions for acts that are based on vague and overbroad language, which could be applied to unduly interfere with the rights of individuals and disproportionately impact those from disadvantaged and marginalized groups.
For instance, article 27(1) of the revised ITE Law threatens criminal sanctions for disseminating content that violates “propriety”, defined as “displaying nudity, genitalia, and sexual activity that contravenes with the values existing in society […]”. While the law now includes an exemption for public interest and self-defence (article 45(2)), this definition for “propriety” is vague and overbroad, having the potential to be weaponized to unjustly sanction any form of expression by individuals from marginalized groups, such as LGBTI-related content. Further, it could enable legal reprisals against victims/survivors of gender-based violence and lead to revictimization.
Defamation should never be subject to criminal, as opposed to civil, sanctions. The UN Human Rights Committee, which authoritatively interprets the ICCPR, has called on States to end the use of the criminal law for such purposes and affirmed that “imprisonment is never an appropriate penalty [for defamation]”. While the revised ITE law now incorporates a public interest exemption, the retention of criminal defamation will continue to have a chilling effect on online freedom of expression and information. Indeed, the previous criminal defamation provision in article 27(3) of the ITE Law, has already been applied to target expression critical of the government.
The criminalization of disseminating content that incites “feelings of hatred or hostility” in article 28(2) cannot be used to justify the application of criminal law. While States must act under the ICCPR article 20 to protect against actual incitement to violence and discrimination, provoking mere “feelings” of ill-defined conceptions of “hatred or hostility” stands well below the threshold of actual acts of violence or discrimination. In any event, the use of the criminal law is a plainly disproportionate measure to address any legitimate objective. The ICJ notes that the previous criminal hate speech provision in the ITE Law has been applied in an arbitrary manner to charge journalists and convict forms of expression that do not give rise to substantial harm.
The addition of article 28(3) in the revised ITE Law to criminalize disseminating “false statements” that causes “public unrest” is vague, overbroad and imprecise, which is inconsistent with the legality principle. Authorities may not rely on the prevention of “public unrest”, vaguely defined as “conditions that disturb public order […]”, to justify the disproportionate threat of criminal sanctions, especially imprisonment. The ICJ notes how other criminal provisions sanctioning disinformation, based on colonial-era regulations, have been used to arbitrarily sanction legitimate expression protected under international human rights law, including public interest reporting or critical opinions concerning public officials.
This press release can be downloaded in Bahasa Indonesian here.
Contact
Melissa Upreti, ICJ Regional Director for Asia and the Pacific, e: [email protected]
Daron Tan, ICJ Associate International Legal Adviser, e: [email protected]
Yogi Bratajaya, ICJ Legal Consultant, e: [email protected]
Further reading
Dictating the Internet: Curtailing Free Expression, Opinion and Information Online in Southeast Asia