[Indonesia] Internet policy and implementation

A survey conducted by Indonesian Internet Service Provider Association (APJII) in collaboration with Communication Research Center, University of Indonesia reveals that the number of Internet user in Indonesia by the end of 2015 has reached 88.1 million people or 34,9% of the country’s 252,4 million population.1 The number of Internet Service Provider (ISP) which are registered as APJII member are around 340 ISPs.

According to research result released by wearesocial.sg, in the beginning of 2016, the number mobile connections in Indonesia has already exceeded 326.3 million of active number. Of that total number, about 66.0 million of numbers are active mobile social users. Certainly, though, that the number not reflects the individual or unique user number, as one user can have more than one number.

However, one of the most significant challenges to the freedom of expression in Indonesia, particularly on the Internet, is the EIT Law article 27, paragraph 3. Since the law released for the first time in April 2008 until end of 2015, this article has been used to make more than 144 cases of defamation. The number of cases mostly occurred in 2015, which are 70 cases, according to the Southeast Asia Freedom of Expression Network (SAFEnet). SAFEnet also noting there are four patterns of people that used this article for police reporting purposes: to silence critics, to give shock therapy, to deliver revenge, and to barter with other legal cases.

This article has in it a maximum imprisonment of 6 (six) years that often being used to restrict freedom of expression on the internet. According to the Indonesian law, the police or the public prosecutor has the right to detain a suspect who may be sentenced to 5 (five) years or more for questioning, to prevent the suspect to escape, damage or make the evidence lost, and or repeat the crime. The duration of detaining by the police is a maximum of 20 days and can be extended by the public prosecutor for 40 days maximum.

As a result of pressure from several Indonesian CSOs, finally the Indonesian government has opened communication with CSOs and other relevant stakeholders to gather input and advocacy. And in 2016, both the government and the legislature agreed to revise the article. The process of revision is still on going at the parliament right now, where one of the proposal from the government is to minimize maximum penalty of the article become under 5 (five) years.

According to the CSOs, the amendment to the EIT Law should also be followed by the deletion of articles on defamation as the reduction of the maximum penalty is not enough. The government asked for deleting the article which is essentially already regulated in the Indonesian Criminal. The deleting is being pushed by CSOs in order to ensure that weakening of human rights on protection on the cyber sphere does not occur. The underlying problem is a model formulation of a criminal offense that does not respect the principles of human rights and tend to be carelessly interpreted.

Meanwhile, to govern online content, previous MCIT Minister released Ministerial Decree No. 19 / 2014 concerning the Handling of Websites with Negative Contents and followed by Ministerial Decree No. 290 / 2015 about Internet Negative Content Handling Forum by the new MCIT Minister. The latest decree actually for developing proper blocking procedure for the websites considered contain negative or prohibited content. Actually the “prohibited content” is derivatives from combining of EIT Law, Telecommunication Act, Anti-Pornography Law and Penal Code.

In fact, so far the practices of blocking of Internet content in Indonesia have been actively done by Internet Service Provider (ISP) with no exception, based on MCIT’s TRUST+ blacklisted URLs database. Previously, TRUST+ database lack of legitimacy, proper knowledge of the person in charge as well as transparent and accountable procedure. The list is provided internally and closedly by MCIT. ISPs must block content listed in TRUST+ database or their business license will be revoked. There have been several reports of improper blocking due to the limitation of TRUST+. But then as Indonesia has new President, as well as new MCIT Minister, then the forum initiated to ensure there will be no more abuse and/or misuse of TRUST+ database. Several prominent people from various stakeholder frequently seat and discuss any reports coming from the public then delivering proper recommendation to the minister.

Nevertheless, according to the several Indonesian CSOs, any policy to restrict the basic rights of the people must be governed by the law, as mandated by Indonesian Constitution. Therefore, the ministerial decree is not sufficient and improper for blocking websites. Another important aspect is the potential coverage area “negative content” under rule which refers to pornography and illegal, is believe can lead to human rights violations by state and abuse of power by the authorities. By having the two ministerial decrees, MCIT considered plays a multiple role as a reporter, investigator, prosecutor, standard setters, as well as a judge and executor in blocking and filtering websites.

Moving forward, MCIT now is drafting the Personal Data Protection Act. The (draft) act planned to ensure Indonesia has the equal position with other economics / jurisdiction / country when it comes to protecting data privacy. Indonesia until now doesn’t have proper and comprehensive regulation regarding to that. The draft contains a definition of “personal data” includes data which a person’s life that can be identified automatically or combined with other information through electronic systems or non-electronic. It also specifically provides that all data such as religion / belief, health, physical and mental condition, sex life and financial information considered “sensitive personal data”.

Quoted from the managingip.com, according to the draft law, personal data operators are prohibited from transferring personal data to another economics unless the recipient one have personal data protection measures that are consistent with the act. Personal data operators have to secure approval before transferring data and the data receiver cannot use except for the use of personal data that the data owner has consented to. Operator must also notify the personal data the owner of the data in case of a merger, spin-off, consolidation or other business transaction that could affect the implementation, management or transfer of personal data.

Based on the draft regulation, the operator of an electronic system which will make cross-border transfers of data must first be coordinated with the MCIT on the transfer plan and the results of the transfer. In addition, if anyone wants to show, publish, transmit or disseminate personal data, or open access to the electronic system to the public, the personal data must be derived from an electronic system dedicated to public service.

Previously, MCIT released the draft of Ministerial Decree on Personal Data Protection in Electronic System. Several CSOs, such as ELSAM and ICT Watch gave input for the draft, following the procedure of public hearing by MCIT. The input (in Bahasa Indonesia) from ELSAM may be read here: , and from ICT Watch may be read here.

Mapping

Inventory of Internet Policies

  1. Laws, directives, executive orders and/or policy directlyintended to govern internet usage.
    1. Telecommunication Act (UU Telekomunikasi), No. 36/ 1999
    2. Electronic Information and Transaction Law (UU ITE), No 11/2008
  • Draft of EIT Law Revision
  1. Ministerial Decree No.19 / 2014 about Internet Negative Content Handling
  2. Ministerial Decree No.290 / 2015 about Internet Negative Content Handling Forum
  1. Existing analysis/critique of impact and/or application.

There are 2 significant analyses and/or critiques regarding to the existing regulations:

  1. Ministerial Decree No.19 / 2014 is an illegal restrictions and illegitimate” (based on Press Release by CSOs, 10 August 2014). The Ministry of Communication and Information Technology (Kominfo) has released Ministerial Decree No. 19 of 2014 concerning the Handling of Websites with Negative Contents. This Regulation is intended to fill the vacuum of law on the procedures for blocking website contents considered negative as the derivatives of ‘prohibited contents’ as provided by EIT Law. In fact, so far the practices of blocking of Internet content in Indonesia have been actively done by Internet Service Provider (ISP) on the orders of the Kominfo without sufficient rules and procedures. The Trust+ (Positif) as referred to in the regulation does not have three matters: legitimacy, procedures and transparent and accountable performance audit.
  2. Immediate Amendment EIT Law to Protect Indonesian Democracy” (based on Press Release by CSOs, 30 November 2015). The number of those charged with the Law on Information and Electronic Transactions (UU ITE) is increasing every year. From 2008 to 2011 the average number was only 2 cases per year, and then it rose to 7 cases in 2012 and 20 cases in 2013. The figure then grew exponentially to be 41 cases in 2014 and 44 cases in 2015. Out of the total figures, it turns out 90% of the figures are related to the use of article 27 paragraph 3 of the EIT Law concerning defamation. In fact, article 27 paragraph 3 of the ITE Law has been massively used by those in power to silence the public that convey their expression, information or advocacy through the Internet. Criticism against state officials and anti-corruption activists in various fields and regions of Indonesia are often suppressed, silenced and jailed using the article. Therefor the amendment to the EIT Law should also be followed by the deletion of articles on defamation as the reduction of the maximum punishment is not enough. The Indonesian criminal code (KUHP) actually already adequate to handling (online) defamation case properly. The amendment to the EIT Law is not in order to free the guilty, but to protect Indonesian citizens who want to convey the truth and use their right of expression and access information on the Internet properly.

Government bodies for Internet Governance

  1. Ministry of Communication and Information Technology (Kominfo)
    1. Mandate: Presidential Decree No 54 / 2015 about MCIT (source: http://web.kominfo.go.id/sites/default/files/Perpres_54_2015.pdf)
    2. Head: MCIT Minister, HE Mr Rudiantara (contact: rudiantara@kominfo.go.id)
  • Higher Agency: Coordinating Minister for Politic, Legal and Security
  1. CSOs engagement: In general, there is already good effort from the MCIT to perform multi-stakeholder engagement, particularly with CSOs, for developing policies. It was after Indonesia has new president, Joko Widodo, followed by the inauguration of the new MCIT Minister and other ministers in October 2014. MCIT also has a public hearing mechanism to gain input from public when they draft certain ministerial decrees. MCIT has also become one of the initiators and stakeholders of Indonesia Internet Governance Forum (ID-IGF) along with other stakeholders from the private sector, civil society organizations, academia and the technical community.
  2. Analysis / critiques: One of the important regulations being prepared by the MCIT is the Bill on the Personal Data Protection. MCIT is also responsible for the implementation of telecommunications on the rural and/or remote area based on the universal service obligation (USO) fund scheme. MCIT also be the leading sector for developing digital economy Indonesia, among others, by preparing the e-Commerce Roadmap, 1 million .ID domain name program and endorse the 1,000 Technopreneurs synergy with other ministries and stakeholders in Indonesia. For online content policy, MCIT Minister on March 2015 formed the Panel Team of Negative Content Handling, to check and discuss websites reported by any parties and give recommendation to the MCIT minister for further action. This panel team actually established to minimize any potential abuse inside the MCIT regarding to the online content blocking mechanism. But several Indonesian CSOs criticized this panel and request MCIT to comply with human rights standard, by putting any regulation of content blocking should be put under Act/Bill, not under Ministerial Decree level. Other critiques also aimed to the position of MCIT regarding to the EIT Law revision that being discussed with the parliament right now. MCIT only want to minimize the maximum penalty of defamation article from 6 to 4 years and add commentary that refer defamation article to the Indonesian Criminal Code. It is to ensure the article not being abused or misused by anyone to repress freedom of expression. According to the law, anyone can be detained for interrogation by the police for several weeks if they are reported to the police by other party using article which is has maximum penalty more than 5 years.

Online Expression Key cases

  1. Muhammad Arsyad – Corruption Eradication Activist – Makassar. For expressing his opinion by posting “Don’t be fear of threats and don’t choose the brother of a corruptor” (sic) on his own BlackBerry Messenger (BBM) status, Arsyad went to jail for 100 days. During the trial, threats were leveled against him, but the judge set him free. His case represents the ongoing situation of “speakers’s crisis” where speakers like Arsyad now are afraid to express their criticism about the local government through online media.
  2. Deddy Endarto – Humanist – Mojokerto. Deddy was sued by the owner of a steel factory for defamation right after he gathered votes for an online petition through change.org website to stop the steel factory from opening a new plant in the historical site of Trowulan. He is currently on trial and still fighting for his right to express his opinion.
  3. Apung Widadi – Anti Corruption Activist – Jakarta. Apung created a post about the corruption scandal inside Indonesia’s national soccer association on Facebook in a secret group discussion. The association sent the police to catch him and put him on trial. He is now still in hiding.
  4. Florence Sihombing – College Student – Yogyakarta. Florence criticized the city and the people of Yogyakarta on her Path account, which resulted in her being on trial for defamation. The prosecutor asked the judge to sentence her with 6 months jail time. At the time of writing, the judge has yet to decide on her case.
  5. Agus Slamet & Udin – Anti Corruption Activist – Tegal. Agus and Udin were held in custody after the mayor of the city of Tegal, Siti Mastiah, sued them for defamation. At the time of writing, they are awaiting trial.
  6. Ronny Maryanto Romaji – Head of Local Election Supervisory Committees – Semarang. Ronny monitors elections for instances of election law violations, including money politics. In 2014, a politician suspected to be corrupt sued him for defamation because the online media reported on Ronny’s investigation against him. At the time of writing, the police is still examining the case.
  7. Dian Rustya – Blogger – Tuban . Dian criticized the public health center in her town and as a result she was sued by the head of the center. At the time of writing, the police is still examining the case.
  8. Fadhli Rahim – Civil Servant at Tourism Agency – Gowa. Last February, Fadhli was sentenced to jail for 8 months because he chatted with a fellow high-school alumni on his LINE chat app about the mayor of Gowa district.
  9. Muhammad Arsad – Civil Servant at Local HRD Agency – Selayar. Arsad was sentenced to 2 years in prison for sending an SMS message to his supervisor, Selayar Regent Syahrir Wahab, reminding him that the due process on corruption is applicable to Selayar’s administration.
  10. Content Blocking: Vimeo (by MCIT), Netflix (by Telco Operator).

Vimeo. In May 2014, MCIT through the Trust+ (Positif) blacklist database managed by the MCIT mandated all Indonesian ISPs to block Vimeo. The reason is because there were several pornographic content on the video sharing service. The decision to list Vimeo on Trust+ was not done in a transparent and accountable manner. Although a number of parties (including professional movie makers and directors) already expressed objection to the MCIT, but until now Vimeo still blocked. The reason used by MCIT recently is because Vimeo has not yet provided an adequate mechanism to limit negative content can be access easily by the visitors from Indonesia. Several information activists and CSOs also criticized the non-transparent and non-accountable decision delivered by MCIT. Accordingly, the new MCIT Minister, Rudiantara, was forming The Panel Team for Negative Content Handling.

Netflix. State-owned telecommunications and internet provider Telekomunikasi Indonesia (Telkom) has blocked Netflix from all of its platforms starting January 2016 because of a permit issue and its unfiltered contents. But many parties believed that Telkom’s action was related to business interests. Telkom is indeed in the middle of building its content businesses in Indonesia enthusiastically, especially in the category of over-the top (OTT). The Indonesian government is not much having strong position with this case. According to the MCIT, what is done by Telkom is purely about the mere business deal. Some information activists later critique Telkom actions considered contrary to the principle of net neutrality. The issue of foreign OTT rampant in Indonesia telecommunication infrastructure has become one of intense debate. Nonetheless, Telkom’s decision to block Netflix is not followed by other telecommunications operators and internet providers in Indonesia.

Civil Society Initiatives and Alternatives

  1. Initiative
    1. Indonesia CSOs Network for Internet Governance (ID-CONFIG). ID-CONFIG is the hub which is informal and fluid, consisting of a number of civil society organizations concerned with Internet governance Indonesia. ID-CONFIG involved in strengthening the ID-IGF. ID-CONFIG established on December 12 2012. Five people from different institutions that part of ID-CONFIG now representing CSOs for the ID-IGF as the Multistakeholder Advisory Group (MAG) member.
    2. Southeast Asia Freedom of Expression Network (SAFEnet). SAFEnet is the institution that performs data / case collecting and recording as well as gives assistance to victims of the pressure on freedom of expression in Indonesia. SafeNet members reside in several cities in Indonesia, and in June 2016 is the exact of 3rd years of SAFEnet. SAFEnet decided to open its database about Indonesian freedom of expression cased to public and may accessed at http://bit.ly/monitoringindonesia. In its activities, SAFEnet always cooperated with a number of CSOs and public interest lawyers. SAFEnet also develops mutual communication and solidarity among others activists within the region.
  • Digital Democracy Forum (FDD). FDD is an informal institution consisting of a number of human rights activists and freedom of expression activists in Indonesia. FDD together with a number of CSOs preparing Youth School for Digital Democracy (KEMUDI), which aimed to develop an understanding of Internet governance and digital democracy for young people. The school planned to deliver online and onsite, with several workshop module prepared by competence experts and practitioners.
  1. Internet Sehat (Internet Healthy) by ICT Watch. ICT Watch is firmly committed to freedom of information and is keenly aware of the emerging challenge to the online freedom of expression in Indonesia. ICT Watch strategy is carefully calibrated to manage this challenge indirectly, by creating the conditions for responsible Internet use and the creation and distribution of high-quality online content, and by involving multistakeholder as partner in the program’s proliferation. Through the “Internet Sehat” program, ICT Watch has endeavored to show the multistakeholder that people can take responsibility for their online activities. Under this Internet Sehat program, ICT Watch released a how-to module under creative commons license for parents and teachers. ICT Watch also participate in various offline activities, such as workshops, roadshows to schools/campuses and communities. On April 2016, Internet Sehat awarded as WSIS 2016 Champion by UN.
  2. Public Consultation (Policy Brief)
    1. Example by ELSAM (in Bahasa Indonesia)
      1. Right to be Forgotten and Freedom of Expression: Discourse Battle (http://elsam.or.id/2016/05/hak-atas-penghapusan-informasi-rigths-to-be-forgotten-dan-kebebasan-berekspresi-pertarungan-wacana)
      2. Urgency to Revise of Electronic Information and Transaction (http://elsam.or.id/2016/01/urgensi-revisi-uu-informasi-dan-transaksi-elektronik-ite)
      3. Internet Content Governance based on Human Rights: Recommendations For EIT Law Revision (http://elsam.or.id/2016/04/tata-kelola-konten-internet-berbasis-hak-asasi-manusia-rekomendasi-bagi-perubahan-uu-no-112008-tentang-informasi-dan-transaksi-elektronik)
      4. Personal Data Protection In Indonesia: Proposed Institutional Policy from the Perspective of Human Rights (http://elsam.or.id/2016/03/perlindungan-data-pribadi-di-indonesia-usulan-pelembagaan-kebijakan-dari-perspektif-hak-asasi-manusia)
      5. Privacy 101: A Guide to Understanding Privacy, Data Protection and Surveillance Communications (http://elsam.or.id/2015/12/privasi-101-panduan-memahami-privasi-perlindungan-data-dan-surveilans-komunikasi)
  1. Example by ICT Watch (in Bahasa Indonesia)