The ITE and the limits of expression Harison Citrawan  ;   The writer works at the Human Rights Research and Development Agency under the Law and Human Rights Ministry

JAKART POST, 08 September 2014

                                                                                                                       

                                                      

The article “Why Jokowi must repeal the ITE Law” by Ary Hermawan (Sept. 2) conveys an interesting discussion on the long-debated application of defamation as a crime under the 2008 Electronic Information and Transactions (ITE) Law. The article brings the assumption that the ongoing legal process of a defamation case against graduate law student Florence Sihombing, regarding her opinion expressed in her Path account, is just another indication of “a serious flaw in our legal system”. Thus, the article conclusively underlines that there is a need for the future government to repeal this so-called draconian law, as it may harm democracy, and presumably our basic rights and fundamental freedom to express an opinion. I would argue to the contrary for several reasons, however. First, from a constitutional perspective, the ITE Law is in conformity with the 1945 Constitution. This premise is based on a Constitutional Court decision in 2008 concerning a judicial review of the ITE Law. The court decided that Article 27 (3) and 45 (1) of the ITE Law, which regulate crimes of defamation in cyberspace, are not contrary to the 1945 Constitution, consequently making it in line with human rights protection as well. In its consideration, the court stated that the state had the obligation to preserve reputations both in offline and online society. Second, based on a study conducted by the United Nations special rapporteur, Frank La Rue (2011), on the promotion and protection of the right to freedom of opinion and expression, a human rights perspective on legitimate limitations to the right to freedom of expression states a three-part cumulative test departing from Article 19 of the International Covenant on Civil and Political Rights (ICCPR), namely: “(a) any limitations must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); (b) it must pursue one of the purposes set out in article 19, paragraph 3, of the covenant, namely (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals (principle of legitimacy); and (c) it must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality)”. Third, this special rapporteur report also acknowledged that there were legitimate types of limitation imposed by the state based on the ICCPR. The report states that, “Legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).” Based on these three arguments, it is arguably legitimate for Indonesia to limit any expressions, including those published on the Internet, through the ITE Law as it is an effort by the state to preserve public order. Nonetheless, the law-in-text and the application of it should be put in two interrelated buckets. While the ITE Law appears to be a type of legitimate intervention by the state upon individuals’ freedom to express an opinion, on the other hand, the application of the law, along with its sanction imposition, should follow a comprehensive understanding on human rights reasoning. The law enforcement, thus, ought to weigh primarily the “gravity” of impact of an actual expression against any reputations involved, which should also include a consideration of access to repair the damage by the victim. Arguably, such a test could be implemented upon the Florence case at hand. Furthermore, in relation to this, the special rapporteur also reported that, “in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate.” Given “rapid” as a main feature of online interaction, any legal process against the alleged crime of defamation in cyberspace must consider that the victim, as human rights logic shall always be pointed to the reparation of the perpetrated one, has available access to repair his/her reputation instantly through the Internet. To conclude, applying the ITE Law textually may considerably send more and more people to already overcrowded jails as all Internet users may potentially perpetrate “petite” cybercrimes. Hence, a bigger scheme of human rights logic needs to be applied by law enforcers upholding the ITE Law. ●