The Perantau

Country Brief Report:

The Inadequate Reportage of Human Rights Issues in Indonesia

There has been a strong pattern of democratic backtracking in Southeast Asia, where civil society actors are at a crossroads on how they should participate in human rights discourse both in general and in the region (Spires 2021).

Governments across the region have employed tactics to weaken online space for expression and civic activism, arresting government critics and weaponising the law to suppress dissent (Funk 2019).

This includes Indonesia, where despite experiencing one of the most significant democratic gains in Southeast Asia since the fall of the New Order regime, it continues to struggle with but not limited to disinformation and technical attacks on civil society.

Freedom House (2021) scores Indonesia as partly free, where 2021 has seen a recent low of 59/100, a decline from 61 the previous year and 65 in 2017, continuing the pattern of deterioration of civil freedom in Indonesia. Media freedom in the country has also deteriorated, where internet connectivity has been restricted, social media censorship has become increasingly commonplace and the strengthening of legal foundations to restrict content (Freedom House 2020).

This paper will discuss Indonesia’s cyber defamation law, social media restrictions and user privacy, and social media as a vehicle of new despotism in regards to the impacts on human rights in Indonesia.

Cyber Defamation Laws and Repression on Social Media

Indonesia’s cyber defamation laws benefit the State as it silences critics through legal mechanisms, however, the repression of free speech on social media instead represents an attack on civil society. Indonesians are unable to exercise their right to free speech as even though laws were formulated to uphold moral values for the people, it has instead prosecuted those that even remotely speak out against the State. Law Number 11 of 2008 on information and electronic transaction, or commonly referred to as the ITE Law, includes but not limited to in Chapter VII Article 27 that online content deemed unethical or immoral and those that contain indignity or defamation is forbidden, whereby penal provisions as stated in Chapter XI Article 45 include up to 6 years of imprisonment and a one billion rupiah fine, equivalent to AUD 90,000 (Indonesia 2008). The criteria in which people may face these charges are not specified in the law, remaining vague and subjective, meaning that through the cyber defamation provisions the State can easily use the law to criminalise people who voice concerns about the government and express their thoughts online (Wiratraman 2010, p. 4). The ITE Law is perceived as a new legal framework for cyber law, to govern the digital space including laws that define the proponents of cybercrime, acting as a method of general prevention and emphasising the negative perception towards defamation and slander (Winarno 2011, p. 44). As the ITE Law was created to govern internet use and information technology on the grounds of electronic communication, State actors may argue that the ITE Law is crucial to further develop the e-commerce industry based on creating social stability and public welfare in the digital space (Winarno 2011, p. 48). This is proven when the Constitutional Court of Indonesia rejected an appeal for judicial review of the ITE Law, where petitioners proposed that it went against the 1945 Constitution’s law on freedom of speech, but were rejected on the grounds that it did not go against the constitution, but rather it provided new laws on in the cyberspace and guaranteed freedom of expression, including but not limited to expanding laws on defamation beyond the press industry or journalism (Court Decision No. 2/PUU-VII/2009, 5 May 2009). However, the ITE law has still been cited in controversial judicial proceedings, prosecuting members of civil society that are merely exercising their right to the freedom of expression. This can be seen for example, when Agustinus Yolemal, a Papuan pro-independence activist, was convicted in January 2019 for spreading hate speech and hostility through a Facebook video post of him and his son voicing slogans of Papuan independence, which later went viral. According to Amnesty International (2018; 2019), Yolemal was arrested in his house by police without an arrest warrant and convicted of hostile messages against Indonesia’s state ideology, charged under Article 45A(2) of the ITE Law, stating that “[a]ny person who deliberately and without right disseminates information aimed at inflicting hatred or hostility on individuals and/or certain groups in the society based on ethnicity, religion, race and membership of inter-groups as provided in Article 28(2) of the ITE Law” (Indonesia 2008). This particular case contradicts Article 20(2) of the International Covenant on Civil and Political Rights (1966), which Indonesia is a member of, stating that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The ITE Law does not specifically cover forms of expression that include both “national, racial or religious hatred” and “incitement to discrimination, hostility or violence”, thus making it unlawful prosecute individuals where there is a lack of evidence of intent in reference to those two elements. Despite the ITE Law emphasising information that inflicts hatred or hostility towards individuals or groups, it has, in reality, prosecuted those that criticise the government or less tangible concepts such as state ideology through social media and other online platforms. The vague and broad definitions stated in the legislative framework have thus often been used to litigate and arrest people who exercise their right to freedom of speech.

Threats to User Privacy and the Erosion of Free Speech

Social media restrictions imposed by the Indonesian government, both direct and indirect, are a threat to user privacy and thus act to the detriment of civil society, further limiting the ability of the individual their right to free speech. The vague wording of the law, and its ability to be openly interpreted, allows the government to use elements such as fear to incentivise online platforms and also members of civil society to self-censorship. For example, the Indonesian Ministry of Communication and Information Technology passed the Regulation of the Ministry of Communication and Information Technology No. 5 of 2020 concerning Private Electronic System Operators, hereinafter abbreviated as MR5, on 24 November 2020. According to Article 3(4), private sphere Electronic System Operators, hereinafter abbreviated as ESOs, which refer to social media platforms and other social networking sites, are required to register with the Ministry and agree to provide relevant authorities complete access to their systems and user data, and as stated in Article 7(2), failure to do so will result in the Ministry blocking the social media site (Ministry of Communications and Information Technology 2020). Furthermore, Article 9(3) states that ESOs should not upload or facilitate the dissemination of forbidden content, and as described in Article 9(4), this includes those that “(a) violate the law; (b) causes civil unrest and public disturbance; and (c)  inform or provide access to obtain forbidden content.” (Ministry of Communications and Information Technology 2020). Government intervention and interference in the private sphere not only limits the individual’s right to free speech, but it also goes against international law. The United Nations Human Rights Council (2018) defines privacy as “an area of autonomous development, interaction and liberty” (para. 5) where the private sphere should be “free from State intervention and from excessive unsolicited intervention by other uninvited individuals” (para. 5), in which the right of privacy is threatened “… when information that is publicly available about an individual on social media is collected and analysed…” (para. 6). This echoes the Universal Declaration of Human Rights (1948, art. 12) that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Concerns have been raised by international non-governmental organisations regarding the MR5 and its implications on civil society. For example, in an open letter by the Human Rights Watch ([HRW] 2021) to the Ministry of Communication and Information Technology, they raised concerns that the requirement for ESOs to monitor and filter content may lead to pre-publication censorship, where combined with the ITE Law, it incentivises internet companies especially those who facilitate user-generated content to extensively restrict freedom of expression and access to information (p. 2). The HRW (2021) also raised concerns that due to the lack of being able to appeal decisions made using the MR5 by both ESOs or individuals, it highlights the risk that the lack of provisions to take down content will be abused by the State (p. 6). Likewise, the Southeast Asia Freedom of Expression Network (2021) echoes this statement, explaining that the MR5 is “very likely to interfere with the interests of electronic system operators in the private sphere, especially if not for legitimate and disproportionate reasons” (para. 9), where “such obligations actually weakens the position of protection of all social media platforms … [and] becomes a repressive instrument that would contradict or even violate human rights” (para. 12). Although not explicitly forbidding certain actions, this is an example of indirect restrictions on social media, those that all must adhere to if they do not wish to be charged under the MR5. Correspondingly, the issue of user privacy is also of great concern, least of all towards that element of fear that the State owns private data of each individual registered on online platforms. Thus, civil society is limited in its ability to exercise free speech online because of social media restrictions and threats to user privacy imposed by the government.

New Despotism in Indonesia: The Role of Social Media

Social media has been adopted by State actors as a vehicle for new despotism, a sign of Indonesia’s decaying democracy and mobilising social media for political gains. Keane (2020, p. 14) describes new despotism as “a new type of pseudo-democratic government led by rulers skilled in the arts of manipulating and meddling with people’s lives … and much media talk of defending ‘the people’ and ‘the nation’ against ‘domestic subversives’ and foreign enemies.’” The current Indonesian administration under President Joko Widodo has shown characteristics unique to Keane’s ‘new despotism,’ wherein social media has been sophisticatedly used by the government in creating cultural discourse to criminalise critics or opponents of the State away from civil society, which in turn assists in building the State’s public approval (Kusman & Istiqomah 2021, para. 24). This phenomena becomes commonplace during national election periods and/or when the State needs to rally support for government policies. The Indonesian Corruption Watch ([ICW] 2020, p. 5) found that the Indonesian government has spent more than Rp. 1 trillion, equivalent to AUD 90 million, of the country’s State Budget between 2014 to 2020 on pro-government social media campaigns, which includes funding ‘influencers’, public figures, and other entities able to influence public opinion. These entities have the power to inspire great resistance from certain groups of people, which can then in turn create new, unhealthy conditions for democracy (ICW 2020, p. 10). Considering that one of the main reasons emphasised by the government was that the ITE Law and the MR5 was to combat hate speech, fake news, and other forms of ‘violated content’, disinformation and pro-government propaganda remains rampant in the digital space. The realm of social media is increasingly becoming a space in which fact or fiction is easily distorted and where civil society finds it difficult to voice their opinions. The 2019 Indonesian general elections saw Joko Widodo serve a second term in office, where supporters of rival candidate Prabowo Subianto made mass demonstrations. This prompted the Jokowi administration, among other measures, to block content-sharing on social media and other messaging platforms, whereby the Ministry of Communications and Information Technology reaffirmed the government’s position that it was to contain the spread of fake news and provocative content that can incite violence within civil society (Setiawan 2020, p. 254). The government was also interested in allowing the police to monitor WhatsApp, arguing that it was in the best interests of the State, prioritising national security over the individuals’ privacy, whilst ignoring concerns by civil society groups over violations of said privacy rights (Setiawan 2020, p. 254). Despite the foreseen violence by the Jokowi administration that did occur, this aspect combined with Prabowo’s sustained attacks on Indonesia’s democratic foundation illustrated the impending threat of authoritarian populism (Warburton & Aspinall 2019, p. 259). Even leading up to the election, the Jokowi administration invoked the ITE Law to crackdown on dissident voices and those who spread the slogan ‘2019 Ganti Presiden’ or ‘Asal Bukan Jokowi’, ‘change the president’ and ‘as long as it’s not Jokowi’ respectively (Power 2018, p. 331). The government also moved to ban activities, both online and offline, that were anti-Jokowi on the grounds to ensure national stability and security (Power 2018, p. 332). Jokowi’s lack of personal commitment to upholding civil and political rights and his consistent rhetoric of state ideology has exceeded to a degree even unprecedented since Soeharto’s New Order regime, once again silencing oppositional voices by using the state’s coercive apparatus (Setiawan 2020, p. 268). Thus, the new despotism taking shape in Indonesia through the mobilisation of social media by the State has further limited civil society’s abilities to their right to freedom of speech.

Conclusion

Indonesia has increasingly become a new state of surveillance, where the legal foundations to curb civil society’s freedom of speech on social media has been exacerbated by the desire of the State to limit any form of dissidence. The vagueness, and thus the openness to interpretation, of the ITE Law and the MR5 has allowed the Jokowi administration to continue incriminating members of civil society that spreads information that even remotely has the potential to destabilise the government. Although in most situations this is not the case, it has created the opportunity for the government to impose laws that threaten people’s right to privacy as well, further raising concerns of the general freedom in the country. Indonesia is still considered a democracy on the international stage and yet has recently received a change in its status as ‘partly free’, joining most of the rest of Southeast Asia and the pattern of democratic backtracking. Without building legal literacy and strong public control, Indonesian civil society will continue to be vulnerable to the fear of intervention or censorship, leaving the protection of the people’s freedom of speech and expression much to be desired.

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References

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Originally submitted as coursework for the Bachelor of Arts, University of Melbourne