I. Introduction
On 25 March 2008, the Indonesian legislature passed Indonesia’s first law regulating cyber world; the Information and Electronic Transaction Act[1] (the ‘Act’). The Act has controversial provisions, which criminalize the act of accessing Internet sites containing violent, pornographic material, SARA-based (ethnic, religious, racial, and inter-group) materials or the act of defaming someone in the Internet.[2] Both the media and Indonesian web users have criticized this part of the law internally. They say the law violates their Constitutional rights to freedom of speech and to obtain information. This has further been proved in the controversial case that involved Prita Mulyasari. Her complaints on Omni International Hospital for an illness that was misdiagnosed in her e-mail to friends were made public and she was jailed following a civil defamation suit by the Hospital. Her arrest by the police was based on Article 27 paragraph (3) of the Act, which states that person whom with intention distributed and/or transmitted an accessible electronic information or document that consists insult or defamation element on it is subject to criminal charge and can be sentenced up to 6 years and/or penalty in the maximum amount of Rp. 1,000,000,000.00 (one billion rupiah).
Despite these, the new Act has established positive points deemed beneficial to the legal framework regulating Internet usage in Indonesia. For example, the Act allows the use of electronic information, electronic documents, and their printed format as evidence in court.[3] This is a breakthrough in both Indonesian civil and criminal procedural law as it means that in the course of a dispute, all well-documented electronic communications can be used as evidence in court.
Moreover, the Act establishes the first general rule on how to conduct business over the Internet. It requires Internet business owners to provide complete and correct information pertaining to their businesses on the Internet, specifically for online contracting and for the product offered over the Internet.[4] This provision seeks to prevent Internet business owners from providing misleading information on their websites in order to lure consumers into buying their products and services. The Act also stipulates that an electronic signature is binding as long as it is made and used by the person him/herself.[5] This provision benefits people who conduct business through the Internet as well as the online banking customer user who authorizes his/her the bank to conduct certain instructions on his/her behalf. The Act further regulates E-commerce sites by requiring a feature for its users to change their information during the transaction process.[6]
The Act also clarifies the protection of intellectual property rights (‘IPR’) over the Internet.[7] It regulates matters related to Internet domain and copyrights law. With regard to Internet domain, the Act concentrates on, first and foremost, the usage of Internet domain. It requires that the usage of Internet domain should be in good faith and must not violate other entity’s proprietary right.[8] Secondly, it deals with the issue of copyright. According to the Act, an Internet user has to ask permission or license the work of the copyright owner before using them on the Internet.[9] This reinforces the protection of IPR over the Internet, supplementing a group of Indonesian’s set of laws[10], which seek to protect IPR in compliance with both the Paris Convention and the Agreement on Trade Related Aspects of IPR (TRIPS). Another positive aspect of the law is that it upholds the right of privacy of an individual by prohibiting the trespass of another individual’s electronic information, document, system or computer.[11] It also prohibits the interception of electronic information and documents in a computer or an electronic system.[12]
Despite the above cited positive points, the Act seemingly violates freedom of speech and the right to information by prohibiting and criminalizing any kind of access to internet sites containing violent, pornographic material, or SARA-based (ethnic, religious, racial, and inter-group) materials. It also provides the possibility of misuse of the provision regarding defamation by the police or other interested third parties. This accusation was brought by Indonesian Internet users who are concerned that they will not enjoy the freedom they used to have when surfing the Internet have criticized this.
Even though the Act was enacted to protect Internet users in Indonesia, the Act likewise limits the activities of Indonesian Internet users. Indonesian bloggers are now concerned that the content of their writing may lead to criminal charges. All of these concerns is reasonable since there is already the case law of Prita Mulyasari to prove it.
This article is presented with the aim to conduct a comparative study of the Act against the content regulations law in the United States. Chapter II will look at the first controversy that had occurred after the enactment of the new law in Indonesia. A discussion of foreseeable problems related to the Act also ensues. There will be a general discussion on the online content regulations in the United States in Chapter III, where the focus will be on the law on indecent or obscene communications. There will also be a discussion on the different perspectives between Indonesia and the United States’ online content regulation. Chapter IV will examine whether or not the Act complies with the right of the Indonesian people to express their opinion stated in the Indonesian Constitution and other pieces of legislation. Finally in Chapter V, a recommendation will be presented to solve foreseeable problems arising from the enforcement of the Act. The article will also explore the possibility of implementing some of the United States’ online content law in Indonesia.
II. Problems regarding the New Information and Electronic Transaction Act in Indonesia.
The blockade of You Tube and other sites in relation with the Movie Fitna The first instance wherein the Act was used related to the blocking of sites containing Geert Wilders ‘Fitna’[13] by the Indonesian Government. The government’s action sparked protests from Internet users in Indonesia. In his letter dated April 2, 2008, the Minister of Communication and Information Technology requested the Indonesian Association of Internet Service Providers to block sites, which broadcast Fitna.[14] The Government justified its action by citing the Act. They also stated that the underlying reason for this policy is because the government is worried that the movie can damage the relationship between people with different religions in both Indonesia and the world.[15] Based on that letter, Internet Service Providers in Indonesia began to block YouTube, Multiply, MySpace, Metacafe, Liveleak, and Rapidshare sites on April 8, 2008 to comply with the letter from the Minister.[16] Yet, the access to those websites was then restored on April 11, 2008 due to continuous protests from web users in Indonesia.[17] Muhammad Nuh, the Indonesia Minister of Communication and Information, formally apologized for the Internet blockage and justified his actions stating a public emergency situation.[18] The formal apology notwithstanding, the Indonesian Internet Service Providers are still blocking access to websites, which have Fitna.
The Indonesian Government also sent a letter to You Tube asking the website to remove the film.[19] An announcement appearing on the official website of the Indonesian Ministry of Communication and Information Technology saying Google has replied to the Minister’s letter.[20] In that letter, Google offered to block websites and movies that are illegal under the Act.[21] It is therefore possible that internet users in Indonesia will later have restricted access to several websites deemed to have sexual, violent or SARA-based (ethnic, religious, racial, and inter-group) content.
This policy has sparked heated debate in Indonesia. Many Indonesians who are critical of the law have argued that the government has denied the people’s right to information. Indonesian political and media expert and former spoke person for the President Wimar Witoelar was quoted saying, “This is a really clumsy move by the government. It shows how the government is exploiting certain religious issues to suppress the freedom of its citizens.”[22] Denying access to YouTube can also be seen as taking a step back in the post-Soeharto; the toppling of the Soeharto government marked the end of a three-decade censorship law.[23] On the other hand, many have expressed their agreement towards the Indonesian government’s action. The Head of the Parliamentary Cooperation of the Indonesian Congress, Abdillah Toha, was quoted saying, “There has to be an action to stop the distribution of the movie Fitna in the Internet because that movie contains a wrong interpretation of the Koran and portrays a minority Islamic group in Islam, terrorists, as a true representation of Islam.”[24] Users of YouTube who use the website for commercial and educational activities have also reacted to the Government’s efforts to block access to YouTube. It turns out that there are Indonesians who used You Tube and other sites mentioned in the above as a media to sell their products or to watch lectures from abroad.[25] Blocking their access to YouTube definitely affects their source of income as well as their right to obtain information.
b. Foreseeable Problems relating to the New Information and Electronic Transaction Act.
Internet users in Indonesia, among them are Internet café owners, currently see the new law as a threat. Since a computer is still considered expensive for the majority of people in Indonesia, the existence of more than 2,500 Internet cafes in Indonesia offers opportunities to people to obtain information and to communicate globally.[26] These Internet cafes are now in fear of the long arm of the new law. The law criminalizes not only the actor accessing prohibited materials online but also the person who provides the means to access the said prohibited materials.[27] Furthermore, looking at the corruption climate in Indonesia,[28] it is feared that the police or other government agencies would take advantage of the vagueness of the law. The law has granted a power to police to inspect Internet cafes.[29] There is skepticism that the police will misuse their discretionary power and seek it as a means to extort internet café owners . This fear is reasonable since the Indonesian Police Department is notoriously known as the most corrupt institution in Indonesia.[30]
Bloggers are likewise in fear of the new law; the criminal provisions of the law now lend to the possibility that suit may be filed against them on the basis of their blogs’ contents and for posting content written by other people in their blog. Unlike the United States, which already has a cyber law, Indonesia is not yet equipped with statutes and case law to yet determine what may and may not be done. For example, the United States has a provision in its Communications Decency Act of 1996 that protects blog owners from liability for posting harmful materials posted by other Internet users in their blog. However, the Act does not define the limitations of what a blogger can and cannot legally do. All the Act has is a statement from the Indonesian Minister of Communication and Information in its meeting with Indonesian bloggers: “Bloggers are not ‘Enemy’ but are (sic) a part of our community that has a big role in developing the world of information and technology in Indonesia.”[31] This statement alone is not an assurance that they can escape from prosecution.
III. The Online Content Regulations in the United States
a. The First Amendment to the United States Constitution
The freedom of speech is one of the most fundamental rights in the United States.[32] It is enshrined in the First Amendment of the United States Constitution, which states “Congress shall make no law abridging … the freedom of speech.”[33] Under United States law, there are few limitations to this right.[34] One of it is obscenity, an instance wherein courts have ruled that government has a compelling interest.[35] Another instance, defamation, is also subject to restriction based on the First Amendment.[36] These two limitations are applied by the United States in its regulations governing speech content that should be limited in cyberspace.
b. The Communication Decency Act of 1996 and Section 230
The Communication Decency Act of 1996 is a federal law, which regulates the content of materials transmitted and distributed over the Internet. The origin of the Communication Decency Act of 1996 came from the intention of Senator Exon to protect children from obscene materials proliferating over the Internet, and to deal with pedophiles stalking in the Internet.[37] This law was also intended to overrule decision in the case of Stratton Oakmont, Inc. v. Prodigy Services, Co., a controversial case before the New York State Supreme Court that held Prodigy, an online service provider, liable for libelous statements made by one it users.[38] In that case, the Court reasoned that Prodigy was the publisher of the statements made by its users because they constantly monitored the information on its bulletin board and removed offensive materials.[39] In response to this ruling, Congress decided to enact Section 230 as a part of the Communications Decency Act of 1996.
Section 230 establishes the immunity of Internet users and service providers from civil liability for any defamatory statement or obscene materials made by another party.[40] It also stipulates that an Internet service provider cannot be held liable for refusing to remove the statement from its service.[41] However, there are still limitations to this provision. In Fair Housing Council of San Fernando Valley v. Roomates.com, LLC, the Ninth Circuit rejected Roomate.com’s immunity under Section 230 by ruling that Roomate.com was acting as an “information content provider” since it solicited information from users concerning their roommate preferences.[42] This Act also does not apply to both intellectual property law[43] and federal criminal law.[44]
c. The Law on Indecent or Obscene Communications
Prior to the Communications Decency Act of 1996, Internet users were free to act in a manner they desired subject to no regulation. Yet, section 223 of the Act makes it a crime to engage in “obscene or indecent” communications with the “intent to annoy, abuse, threaten, or harass any person.” [45] However, in Reno v. American Civil Liberties Union, the Supreme Court ruled that section 223(a)(1)(B), (a)(2),[46] and (d)[47] of the Communications Decency Act are unconstitutional and unenforceable because they abridge the freedom of speech protected by the First Amendment.[48]
The Supreme Court reasoned that section 223 of the Act is too broad and without limitation. It does not allow parents to consent to their children’s use of restricted materials[49] and does not limit the act only to commercial transactions. Furthermore, it fails to provide the definition of “indecent” and “patently offensive”, establishing its coverage over non-pornographic materials with education or other value.[50] The Court was afraid that section 223 of the Communications Decency Act would abridge the freedom of speech enjoyed by adults. In the opinion of the Court, Justice Stevens was quoted to state; “…the CDA effectively suppressed a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”[51]
Most importantly, the Supreme Court in Reno v. American Civil Liberties Union tried to differentiate indecent speech from obscenity. Relying on its previous decision,[52] the court ruled that indecent speech is entitled to the First Amendment protection because it often has substantial social value and lacks prurient interests. However, the Court also acknowledges that the rule should still be applied in relation to obscenity or child pornography.[53] The Supreme Court restates that material that is considered obscene to minors if it “(i) is “patently offensive to prevailing minors, (ii) appeals to the prurient interest of minors, and (iii) is utterly without redeeming social importance for minors.”[54]
After the decision in Reno v. American Civil Liberties Union, Congress enacted the Child Online Protection Act,[55] which differs from section 223 of the Communications Decency Act. The Child Online Protection Act applies only to communications for commercial purposes that are categorized as “harmful to minors.” The Act defines “harmful to minors” as “any communication, picture, image, graphic image file, article, recording, writing or other matter of any kind that is obscene or that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or stimulated sexual act or sexual contact, an actual or simulate normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”
The community standard stated in the Act is a much broader standard than the obscenity standard stated by the Court in Reno v. ACLU, therefore, it sparked another lawsuit by the American Civil Liberties Union. In the Supreme Court’s decision in 2004, the Supreme Court found that the Child Online Protection Act’s requirement that online publishers prevent children from accessing “material that is harmful to minors” is likely to violate the First Amendment.[56] The majority justices in the case feared that by allowing the enforcement of the Statute, it would prevent online publishers from publishing materials, and therefore, does not serve the guarantee of the freedom of speech under the First Amendment. [57] The Supreme Court maintains to block of the effectiveness of the law and remanded this case back to the lower court to give the United States’ government the chance to prove the Child Online Protection Act ‘s requirements were more effective in protecting minors and less restrictive to free speech.[58]
In 2005, an art photographer named Barbara Nitke argued that the obscenity provision of the Communications Decency Act is too broad and therefore should be deemed unconstitutional under the First Amendment to the Constitution.[59] Under the Supreme Court’s decision in Miller v. California, obscenity is defined based on the community standards.[60] Since Barbara Nitke is an internationally well-known photographer who focuses in depicting human sexual relations, she is afraid that the photographs the posted online in her websites could be found criminally liable according to the standards of the most restrictive community in the United States.[61] Therefore, she brought a claim arguing the unconstitutionality of the Act. However, the United States District Court for the Southern District of New York found that Nitke and her co-plaintiff, the National Coalition for Sexual Freedom, had presented insufficient evidence that the Community Decency Act limits people’s freedom of speech.[62] The Supreme Court later affirmed the ruling of the District Court on March 20, 2006 without opinion.[63] In order to avoid the possibility of criminally being charged for the depiction of human sexual relations in her website, Barbara Nitke made a disclaimer in her webpage that, “If you choose to enter this website, you are certifying that you are over 18 years of age, and are not offended by photographic depiction of the nude human form or of human sexuality. If you think you might have a problem with this subject matter, I respectfully ask you not to enter this website.”[64]
Also in parallel with online specific regulation as well as the law of obscenity, the United States requires that producers of sexually explicit conduct to be in compliance with the Child Protection and Obscenity Enforcement Act of 1988.[65] Under this law, the producers of sexually explicit material have to obtain proof of the age for every model they shoot and retain those records. In case of non-compliance, they face criminal charges. This law has an effect to the online community, and not only to members of the online adult industry trade group. The most discussed section of the Child Protection and Obscenity Enforcement Act is section 2257, which requires the producer to copy the identification of the model and keep a record and index all places where the image is published.[66] Section 2257 also requires the producer to list a statement consisting the date of production, an address where the records may be inspected during regular business hours.[67] Furthermore, it also states that the Attorney General or any designated agent may inspect the premises for compliance with the above requirements without giving advance notice or warrant or probable cause or reasonable suspicion.[68] Due to its nature, section 2257 of the Child Protection and Obscenity Enforcement Act is known as the Record Keeping Requirements provision.
In the case of Connection Distributing Co. v. Keisler, the United States Court of Appeals for the Sixth Circuit ruled that the record keeping requirements infringes the First Amendment protected speech because the provision is overly broad and burdensome.[69] The suit was brought by the publisher of swingers’[70] magazines and readers who submit sexually explicit pictures and messages to be included in the section of those magazines. They are concerned because their readers are persons who are willing to publish their photographs in the magazines but they do not want to create and maintain the required records nor provide the magazines with their identifications.[71] Therefore, they challenged the constitutionality of the record keeping requirements under 18 U.S.C. § 2257 and asked for an injunction against the enforcement. Currently, the decision is being reviewed by the Sixth Circuit en banc.
d. The Law on Defamation
Black’s Law Dictionary defines defamation as, “the act of harming the reputation of another by making a false statement to a third person” or “a false written or oral statement that damages another’s reputation.”[72] The term libel, which is relevant for the discussion of this paper, is used to address written or recorded defamation.[73] Under the law of defamation, the elements that must be proven to establish defamation are a publication to one other than the person defamed of, a false statement of fact, of and concerning another, tending to harm the reputation of plaintiff.[74] Yet, the burden of proof of a plaintiff who is a public figure is different with the burden of proof of a plaintiff who is a private figure.[75] It is more difficult for a public figure to prove defamation because they have to show “actual malice”, i.e., the publication is with knowledge of falsity or in reckless disregard for the truth[76] while a private figure only has to prove negligence. The law also requires that a plaintiff who is not a public figure to prove “actual malice” in the case where the defendant is a media, which is treating an issue of a public concern.[77]
Defamation is never under the protection of the freedom of speech because the act of defamation violates people’s basic right to privacy and reputation.[78] As a consequence, not only can the author of the defamatory statement be held liable for the defamatory statement, any person who plays a significant role in the publication or distribution of a defamatory statement can likewise be held liable.[79] Therefore, traditional newspaper publishers would be held liable for the publication of a defamatory statement because of their editorial control over the content of the publication.[80]
However, due to the different nature of the Internet compared to other traditional media, U.S. Congress decided to enact Section 230 of the Communications Decency Act, which is known better as the “Good Samaritan” provision. The purpose of the enactment of this law is to overrule decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material”[81] and to “maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.”[82]
Section 230 protects third party publishers such as Internet service providers, chat rooms, and bulleting board operators from defamatory comments made by others. In the early stages of its implementation, some courts were criticized for abusing the immunity granted by Section 230 of the Communications Decency Act. In Zeran v. America Online, the trial court granted judgment for America Online for delaying the removal of defamatory messages regarding Zeran on an online bulletin board.[83] In Blumenthal v. Drudge, the Court let America Online walk away from its responsibility even though it is reasonable to assume that it has control over the article written by Drudge from the agreement between them that allows America Online to modify or remove the content of Drudge’s article.[84] In that case, Drudge authored a defamatory statement alleging that Blumenthal had abused his wife.[85] In Carafano v. Metrosplash.com, Inc, somebody posted Carafano’s pictures and profile on Matchmaker.com, in which that person also listed her home address and telephone number.[86] Due to that, she received a lot of sexually suggestive voice mail messages.[87] She then sued Metrosplash.com on the grounds of defamation of character, misappropriation of the right of publicity, invasion of privacy and negligence.[88] Yet, the Ninth Circuit rejected her argument by basing it under the service provider immunity under the “Good Samaritan” Act.[89]
In its decision on the Fair Housing Council of San Fernando Valley v. Roomates.com, LLC case, the Ninth Circuit ruled that Roomates.com was not immune because it has actively sought information from its user that is discriminatory.[90] Yet, tit did not clearly define the immunity limitation of online service provider. This can be seen from the majority’s statement that “Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to-the illegality of third parties.”[91] For now, we can still say that the online law defamation in the United States still protects the immunity of online service providers as long as they are not active in the making of the defamatory statement.
e. Comparison of the law in the United States and Indonesia Governing Online Content
In general, the United States legislature and the Indonesian Legislature have similar intentions or purpose in regulating online speech. In the first phase of the introduction of the law in the United States, it is clear that the intention was to protect children from potentially harmful sexual materials in the Internet.[92] This is also the case in Indonesia. There is a strong feeling that regulating the content of the Internet would help parents protect children from potentially harmful materials in the Internet. Therefore, it is provided in Article 52 of the Act that the criminal sanction is higher for a person who provides sexual materials as well as for one involved in child pornography in the Internet.[93] However, this law is relatively very new in Indonesia, especially compared to the United States law, which was enacted 12 years ago. Therefore, we do not know yet whether the implementation of this new law will work out well or not in Indonesia.
In the United States, we see that the Supreme Court had ruled that some of the provisions in section 223 of the Communications Decency Act to be unconstitutional.[94] It also ruled in 2004 that the Child Online Protection Act was likely to be unconstitutional.[95] Nowadays, the United States still relies on the provision of the Communications Decency Act, which, in turn, attempts to protect minors from receiving “obscene” materials from the Internet, and to ban child pornography. Furthermore, the United States also enacted the Federal Labeling and Record Keeping Law, where the publisher of online materials has to be able to provide evidence that the models they use in the Internet are eighteen years of age or older when the materials were photographed.[96] There has been critique from many commentators regarding the current obscenity standard used for Internet regulation.[97] However, the obscenity standard in the case of Miller v. California still governs for cases involving obscenity.[98]
With regard to defamatory statements, both the United States and Indonesian law provide that the Internet is not a media where the users can post defamatory statements. Therefore, users who post defamatory statement and can be identified will be held liable for their actions. The difference would be that there is no liability for providers and users of an “interactive computer service” under the Indonesian law. In the United States, Section 230 of the Communications Decency Act of 1996 granted online service providers immunity from torts committed by other users over their systems.[99] Under the Act of 2008, there is no immunity given to online service providers. Moreover, the Head of the Cyber Crime Unit in the Police Department had stated that they had the right to conduct inspections in Internet Cafes in Indonesia to inspect whether there has been a violation of the Act.[100] Yet, he also stated that the Police Department would socialize the Act first to Internet Cafes before making further inspection or investigation steps.[101]
There has been a critic under section 230 of the Communications Decency Act on how courts interpreted it to provide complete immunity for internet service providers, even in cases where there is negligence conducted by the service providers in responding to the tort committed by their users. Yet, the immunity given is definitely important since it would help internet service providers such as Google to grow without running the risk of being sued left and right. Thus, Internet users still enjoy freedom to use the services provided by internet service providers without having been burdened financially and technically.
IV. Freedom of Speech in Indonesia in connection with Online Content Regulations
a. Law governing Freedom of Speech in Indonesia
Freedom of speech is a new notion in Indonesia. All of the Indonesians laws presently governing freedom of expression were enacted after Soeharto, the Indonesian dictator toppled as President in 1998.[102] Before that, exercising freedom of speech in Indonesia was suppressed. The Government controlled the media. Article 28 of the 1945 Constitution is a vague article, which states there is freedom of speech and that freedom will be governed by Law made by the Indonesian Parliament.[103] Soeharto and his cronies controlled the Parliament at that time. They passed a censorship law, and required compulsory licenses for the operation of the media.[104] During this era, the government dictated everything.
After Soeharto was overturned, the Legislature amended the text of the Constitution.[105] They also enacted the Human Rights Act, which became the foundation for freedom of speech in Indonesia;[106] for the first time in thirty years, the Indonesian press found itself free from any pressure or prohibition from the government.[107] This freedom likewise had some general positive effect on people - learnt to become critical and they expressed their will more through writings and other media.
Currently, freedom of speech is governed both in the Indonesian Constitution[108] as well as the Indonesian Human Rights Act.[109] Article 28 of the Constitution of the Republic of Indonesia, amended in 2000, guarantees the right of the Indonesian people to freely express their opinion, to communicate, as well as to obtain information.[110]
The Indonesian Human Rights Act regulates freedom of speech more thoroughly. Article 14 of the Indonesian Human Rights Act guarantees the right of the Indonesian people to communicate and receive information needed to develop their personality as well as their social environment.[111] It also guarantees people’s right to look, receive, own, save, and transmit information by using any means possible.[112] Article 23, paragraph (2) of the Indonesian Human Rights Act states that every one has the right to own and express their opinion both orally or in writing through any media.[113] Yet, unlike the freedom of speech in the United States, there are limitations: - those opinions have to be in line with religious value, decency value as well as government’s interest and public policy.[114] Article 32 of the Human Rights Act guarantees the freedom and secrecy in electronic correspondence subject to the issuance of a court order.[115] Also relevant to the concern of this article is Article 60 of the Human Rights Act, which governs the right of children to find, receive and send information in accordance with their age and intellectual level as long as that information is in line with the decency value of the Indonesian community.[116] It can be seen from the above that Indonesia guarantees the freedom of speech even though it is subject to several limitations. Furthermore, Indonesia has also ratified the International Covenant for Civil and Political Rights without any reservation to the provision concerning the freedom of speech.[117]
b. Conflicts between Freedom of Speech and Public Policy at play in the New Internet Censorship Law in Indonesia
The issue here is whether the government will suppress freedom of speech and expression in Indonesia by criminalizing the making, transmission or distribution of materials that contain violent, pornography, or SARA-based (ethnic, religious, racial, and inter-group) materials or whether they will indeed maintain law and order through the implementation of said law. It is mostly feared that the Act limits the right to information and the right to express opinions in the Internet that is guaranteed by the Constitution as well as the Indonesian Human Rights Act.
The Government argues the content of the Act is in line with the limitations stated in both the Indonesian Constitution as well as the Human Rights Act. They further argue that the new law only limits the freedoms to transmit and receive information that are in conflict with the values that are highly preserved in the Indonesian society. Therefore, it is a public policy issue, which overrides freedom of expression.
Yet, it is also reasonable to say that the content of the law that criminalizes actions that relate to violent, pornography, or SARA-based (ethnic, religious, racial, and inter-group) materials in the Internet actually do violate the freedom of expression’s notion in both the Indonesian Constitution as well as the Human Rights Act. Article 28 was amended to serve the objective of the freedom of the Indonesian people to obtain information and to communicate. It also highlights the freedom of press. The implementation of the Act will endanger these notions. The Indonesia government will then violate its people rights to receive information by blocking certain websites they believe to contain violent, pornography or SARA-based (ethnic, religious, racial, and inter-group) materials.
The problem is highlighted further by the fact that there is no guidance on what is considered ‘pornography’ and what is ‘violent’. Does that mean that the government would block a website containing Botticelli’s Birth of Venus because it contained a picture of a naked woman? What will happen in a scenario where an Indonesian police conducts a search in an internet café and seeing a teenager looking at female friends’ pictures on Facebook and makes an arrest because he believes the teenager has violated the decency norm? Further, the threat of criminal charges will suppress the freedom of the press and also the people in voicing their opinion over the Internet. It is reasonable to state that people will be reluctant to express their opinion on the Internet for fear of prosecution based on the writings, pictures or video they post.
The new law is also in conflict with the provisions of the Human Rights Act. The Act clearly violates the guarantee of freedom and secrecy in electronic correspondence enshrined in the Human Rights Act. What should happen if a friend sends an e-mail to another friend containing a sexual health article? Would the Government then indict them for correspondence that is educational? Furthermore, this can also be an implied violation of the right of privacy. This right of privacy is also regulated in the Act itself.[118]
Further, the Act actually contravenes the children’s right that is governed under the Human Rights Act. Under Article 60 of the Human Rights Act, children have the right to find, receive and send information in accordance with their age and intellectual level as long as the information is in line with the decency value of the Indonesian community. This again relates to the concern of Justice Stevens in the Reno v. ACLU case, on whether a parent allowing her 17-year-old to use the family computer to obtain information from the internet that is deemed appropriate by the parent would violate the Act itself. From the above illustration, there is a conflict between the people’s right to free exchange of information and opinion as opposed to the Indonesian policy to protect its citizens from so-called “corrupt” values. The question is which one should prevail. Looking at the facts, it is reasonable to say that freedom of expression should prevail because the vague implementation of the law will sacrifice not only the Indonesian’s people freedom of expression but also basic important values that are inherent to the Indonesian’s citizens, such as right to privacy and right to education. The law also threatens the developments in this area in the post- Soeharto era.
Moreover, it is reasonable to say the absence of guidance on how the law should be enforced would also endanger the Indonesian public police, insofar as legal certainty is concerned. Without a clear standard on what violates those norms, it is highly probable that a situation involving abuse of power by the police, other agents of the government may arise. Here, innocent people such as internet cafe owners, including those who have undertaken precautionary measures by downloading blocking software, will face the danger of prosecution because of the conduct of its customers. A scenario where a blogger will face the possibility of an indictment due to a picture or video he/she or his friends posted is also foreseeable. We can also see a scenario where the right of someone to earn a living will be deprived because of the uncertainty whether the existence of the media he/she is using to earn a living to the internet will be threaten by the new regulation. These all lead to the question : - is there value in justifying the public policy to protect citizens from so-called “corrupt” values by sacrificing two basic and inherent rights articulated in the Constitution and other Indonesian laws.
V. Conclusion
The Act is too broad and vague. It only states that it will criminalize those who access internet sites containing violent, pornographic material, or SARA-based (ethnic, religious, racial, and inter-group) materials. This will lead to different kind of implementation of interpretation from all agents of the government as well as the judiciary.
As a democracy, the principle of freedom of speech and the right to obtain information are important principles. This can mean a flexible, and not absolute freedom of speech that is consistent with the values of the Indonesian people. The freedom of expression here should not be used to justify violence, defamation, obscenity as well as discrimination or hate speech. Yet, the freedom of expression here should be used to educate the Indonesian people to critically think and decide what they want. The Act threatens the freedom of its people to express their opinion as well as to obtain information. The threat of criminal charges would make people reluctant to express their opinion in the Internet. Further, government’s plan to block certain websites also affects the right of the Indonesian people to obtain information. In relation to that, it is reasonable to conclude that as a consequence, the Indonesian people will be left behind in the development of information and technology.
The government claims a compelling interest exists which justifies enforcing the online content regulation provided by the Act. Yet, that justification conflicts with other compelling Governmental interests, such as the obligation of the Government to guarantee the freedom to exchange ideas, right to education and right to privacy that are laid out in the Constitution and other laws.
Learning from the example of the United States law governing online content, there should be an immunity clause for interactive Internet service providers, such as Internet cafes so that they could not be subjected to the long arm of the law. Naturally, learning from the precedence of the United States, the law should also balance the interests of third parties, especially the users of these service providers. Therefore, there should always be redress in the case where there is a tort violation.
In the case where the law should still be upheld, it should be limited only to the protection of children since they are indeed vulnerable. It is unreasonable to dictate what information adults can and cannot obtain; it is reasonable to assume that an adult has attained the maturity level to determine what is good and bad for him/her. Blocking websites and filtering key words in the Internet is not a solution to prevent pornography. The Government should be more involved in sex education and Internet literacy to protect the next generation. Finally, the government should make supporting rules implementing the Act to ensure clear standards exists insofar as enforcement is concerned and judicial interpretation are concerned. Therefore, the law can strike a balance between protecting citizens from harmful materials as well as preserving freedom of speech in a democratic Indonesia.
[1] Information and Electronic Transaction Act, Republic of Indonesia (2008).
[2] Lilian Budianto, House Set to Pass Bill Banning Online Porn, Jakarta Post, available at http://old.thejakartapost.com/detailweekly.asp?fileid=20080325.@01. Lucy Williamson, Indonesia Acts on Internet Porn, BBC News, available at http://news.bbc.co.uk/2/hi/asia-pacific/7313497.stm.
[3] Supra note 1, at 5.
[4] Id. at 9.
[5] Id. at 11.
[6] Id. at 22.
[7] Id. at 23-26.
[8] Id. at 23(2).
[9] Id. at 25-26.
[10] Patent Act, Republic of Indonesia, No. 14 (2001). Trademark Act, Republic of Indonesia, No. 15 (2001). Copyrights Act, Republic of Indonesia, No. 19 (2002). Industrial Design Act, Republic of Indonesia, No. 31 (2000). Layout Designs of Integrated Circuits, Republic of Indonesia, No. 32 (2000). Trade Secrets Act, Republic of Indonesia, No. 30 (2000). The Website of the Directorate General of Intellectual Property Right of the Law and Human Rights Department of the Republic of Indonesia. http://www.dgip.go.id/ebscript/publicportal.cgi?.ucid=2662&ctid=77&type=0.
[11] Supra note 1 at 30.
[12] Id. at 31.
[13] Fitna is deemed by the Indonesian government as an anti-Islam movie. This movie is made by Geert Wilders, a Dutch citizen. The movie can be seen on http://www.fitnathemovie.info/videos.php. In that movie, Geert Wilders tried to establish that verses from the Koran serve as the basis of terrorism. He described his film as “a call to shake off the creeping tyranny of Islamization.”
[14] Letter No: 84/M/KOMINFO/04/08 from Muhammad Nuh, Minister of Communication and Information, Republic of Indonesia, to the Head of the Indonesian Association of Internet Service Providers (Apr. 2, 2008). The preview of the letter can be seen at http://djunaedird.files.wordpress.com/2008/04/menkominfo_fitna.jpg.
[15] Id. (It is reasonable to say that as a country with the largest Moslem population; the Indonesian people (both Moslem and non-Moslem) should not have a problem in digesting the movie. Further, it is arguable that the movie should be studied by the Islam intellectuals in Indonesia so they can address and clarify the accusations inside the movie. Therefore, the Indonesian government’s rationale in banning websites containing the movie Fitna is unreasonable).
[16] Mike Nizza, YouTube in Indonesia’s Sights over Dutch Film, The New York Times, April 3, 2008.
[17] Mita Valina Liem, Indonesia Restores Access to YouTube Web site, Reuters available at http://www.reuters.com/article/internetNews/idUSJAK31369920080411.
[18] Nabiha Shabab, Indonesia Apologises for YouTube Blockade, Agence France-Presse. http://www.france24.com/en/20080411-indonesia-apologises-youtube-blockade.
[19] Patrick Goodenough, YouTube Warned to Remove Koran Film, Cybercast News Service, available at http://www.cnsnews.com/news/viewstory.asp?Page=/Culture/archive/200804/CUL20080402b.html.
[20] Ministry of Communication and Information Technology of the Republic of Indonesia, Google is willing to help Indonesia in blocking Illegal Websites available at http://www.depkominfo.go.id/.
[21] Id.
[22] Internet Blocking Costs “Government Credibility,” The Jakarta Post available at http://www.thejakartapost.com/news/2008/04/11/internet-blocking-costs-039government-credibility039.html.
[23] Dijk, Kees van. A country in despair. Indonesia between 1997 and 2000. 2001. KITLV Press, Leiden. ISBN 90-6718-160-9. (Soeharto was an Indonesian dictator who held a 32 years of presidency. During his era, there were numerous human rights violations; a censorship law was also enacted).
[24] Antara. Parliament: We Need an Action to Stop the Distribution of the Movie “Fitna” in the Internet.
[25] Budi Rahardjo, The Information and Electronic Transaction Act, You Tube, etc. available at http://rahard.wordpress.com/2008/04/05/uu-ite-fitna-youtube-dan-lain-lain/.
[26] Association of the Indonesian Internet Service Providers. The Market for Providing Internet Amounts to 200 billion Rupiah available at http://www.apjii.or.id/news/index.php?ID=2002052301505&lang=ind. (Stating that there are around 2,500 internet cafes in operation in the end of 2005).
[27] Supra note 1, at. 34.
[28] Transparency International, TI Corruption Perceptions Index, 2007. http://www.transparency.org/policy_research/surveys_indices/cpi. Ed Davies, U.N. Graft Meeting Targets Plundering Leaders, Reuters, January 28, 2008. http://africa.reuters.com/wire/news/usnJAK108833.html. (A research by Transparency International consistently treated Indonesia as one of the world’s most corrupt nations).
[29] Supra note 18.
[30] Indonesian Corruption Watch. Police Department is the Most Corrupt Entity in Indonesia. December 7, 2007. http://www.antikorupsi.org/mod.php?mod=publisher&op=printarticle&artid=11823. (The Indonesian Corruption Watch reported that based on the Global Corruption Barometer Research conducted by the Indonesian Transparency International, the police is the most corrupt institution in Indonesia). (It also has to be noted that the Indonesian government has been consistently fighting corruption after the dictatorship era of Soeharto. This can be seen from the improvement of its corruption index. In the year of 1995, Indonesia was the worst in world poll of international corruption conducted by Transparency International. Last year, Indonesia has managed to leave that position and left behind 34 countries. Nowadays, due to the establishment of the Eradication Corruption Commission, Indonesia has managed to fight corruption on the upper level. Since corruption in the lower level is still common and even justified by the people itself, it is feared that police officials will misuse the broadness of the new Indonesian Law on Information and Electronic Transaction as a mean for them to obtain money from the owners of the internet cafes).
[31] Chip Online Magazine. Minister of Communication and Information Technology: Bloggers are not Enemies. (April 8, 2008). http://www.chip.co.id/special-reports/menkominfo-blogger-bukan-musuh-tapi-keluarga.html.
[32] NAACP v. Button, 371 U.S. 415, 433 (1963). New York Times Co. v. Sullivan, 376 U.S. 254, 269(1964).
[33] First Amendment to the United States Constitution.
[34] The minimum limitation can be seen from the fact that the Supreme Court had decided that restrictions on hate speech is unconstitutional. R.A.V. v. St. Paul, 505 U.S. 377 (1992).
[35] Roth v. United States, 354 U.S. 476, 484-85.
[36] New York Times Co. v. Sullivan, 376 U.S. 254, 269(1964).
[37] Dominic Andreano, Cyberspace: How Decent is the Decency Act?, 8 St. Thomas L. Rev. 593 (1996). Ken S. Myers, Wikimmuniy: Fitting the Communications Decency Act to Wikipedia, Harvard Journal of Law & Technology, Volume 20, No. 1 Fall 2006.
[38] Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995).
[39] Id.
[40] 47 U.S.C.A. § 230.
[41] Id.
[42] Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, WL 879293 (9th Cir. April 3, 2008) (en banc).
[43] 47 U.S.C.A. § 230(e)(2). Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001). Perfect 10, Inc v. CC Bill LLC, 481 F.3d 751 (9th Cir. 2007).
[44] 47 U.S.C.A. § 230(e)(1).
[45] 47 U.S.C. S 223 (a)(1)(B)(ii), (a)(1)(c)
[46] 47 U.S.C. S 223 (a) prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age
[47] 47 U.S.C. S 223 (d) prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years old.
[48] Janet Reno, Attorney General of the United States, et al. v. American Civil Liberties Union, et. al., 521 U.S. 844 (1997).
[49] Id. (Justice Stevens in the Opinion Court made an analogy, “Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material “indecent” or “patently offensive,” if the college town’s community thought otherwise.”
[50] Id.
[51] Id.
[52] Sable Communications v. FCC, 492 U.S. 115 (1989).
[53] Supra note 50.
[54] Ginsberg v. New York, 390 U.S. 629 (1968).
[55] 47 U.S.C. § 231
[56] Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004). (This law was blocked from taking effect by a lower court order in 1998).
[57] Id.
[58] Id.
[59] Nitke v. Gonzales, 2005 U.S. Dist. LEXIS 15364.
[60] Miller v. California, 413 U.S. 15 (1973). (The Supreme Court in this case held that material is obscene if each of the following factors is satisfied, “whether the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest, whether the work depicts/describes in a patently offensive way sexual conduct specifically defined by applicable law, whether the work taken as a whole lacks serious literary, artistic, political or scientific value.” )
[61] Barbara Nitke, My Lawsuit against the Communications Decency Act, http://www.barbaranitke.com/aboutlawsuit.html.
[62] Supra note 62.
[63] Id. http://www.supremecourtus.gov/orders/courtorders/032006pzor.pdf.
[64] Nitke, A Personal Statement, available at http://www.barbaranitke.com/disclaimer.html.
[65] 18 U.S.C. § 2251 et seq.
[66] 18 U.S.C. § 2257(b) (2006).
[67] Id. at 2257(e).
[68] Id. at 2257(c).
[69] Connection Distributing Co., et al. v. Keisler, 2007 ILR Web (P&F) 2869 [6th Cir].
[70] Swinging is “non-monogamous sexual activity, treated much like any other social activity, that can be experienced as a couple.” Berg strand & Williams, Today’s Alternative Marriage Styles: The Case of Swingers, Electronic Journal of Human Sexuality, Vol. 3, 10 October 2000.
[71] Supra note 71.
[72] Black’s Law Dictionary (8th ed. 2004), defamation.
[73] Id.
[74] Restatement (Second) of Torts § 558 (1977). 50 Am. Jur. 2d Libel and Slander § 6 (2006)
[75] Robert D. Sack, Sack on Defamation § 3.3 (2006)
[76] New York Times v. Sullivan, 376 U.S. 254 (1964).
[77] Gertz v. Robert Welch, 418 U.S. 323, 349-50.
[78] Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 12, U.N. Doc A/810 (Dec 10. 1948). Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring) (“The individual’s right to protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty).
[79] Restatement (Second) of Torts § 578 (1977).
[80] Gerald R. Ferrera et. al., Cyberlaw: Your Rights in Cyberspace 185 (2001).
[81] S. Conf. Rep. No. 104-230, at 195 (1996), reprinted in 1996 U.S.C.C.A.N. 10.
[82] Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997).
[83] Id.
[84] Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
[85] Id.
[86] Carafano v. Metrospalsh.com, Inc, 339 F.3d 1119 (9th Cir. 2003)
[87] Id.
[88] Id.
[89] Id.
[90] Supra note 45.
[91] Id.
[92] Supra note 40.
[93] Supra note 1, at 52.
[94] Supra note 50.
[95] Supra note 58.
[96] Supra note 69. (This law is currently being challenged in the Sixth Circuit)
[97] Mark Cenite, , Federalizing or Eliminating Online Obscenity Law as an Alternative to Contemporary Community Standards, 9 Comm. L. & Pol’y 25 (2004). Roman A. Kostenko, Are “Contemporary Community Standards” No Longer Contemporary?, 49 Clev. St. L. Rev. 105 (2001).
[98] Supra note 63.
[99] Supra note 43.
[100] Antara, The Minister of Communication and Information Stated that the Information and Electronic Transaction Act would not Threaten Internet Cafes, http://www.antara.co.id/arc/2008/3/29/menkominfo-bantah-uu-ite-ancam-bisnis-warnet/.
[101] Id.
[102] Fred Hiatt, Suharto’s Fall. The Washington Post (May 24, 1998). http://pqasb.pqarchiver.com/washingtonpost/access/29670445.html?dids=29670445:29670445&FMT=ABS&FMTS=ABS:FT&date=MAY+24%2C+1998&author=Fred+Hiatt&pub=The+Washington+Post&desc=Suharto.
[103] Constitution of the Republic of Indonesia, at 28. (1945).
[104] Andy M. Bayuni, World Press Freedom Day: We who Believe in Freedom cannot Rest. Directorate General of Human Rights (May 4, 2004). http://www.ham.go.id/index_HAM.asp?menu=artikel&id=124> Nuria. W. Soeharto, Internet and Indonesia in Its Chaotic Period: the Net Makes it Work, the Net Makes it Worse. http://www.widyasari.eu/paris8/file/artikel/english/networse.pdf.
[105] First Amendment to the Constitution of the Republic of Indonesia (1999).
[106] Human Rights Act, No 39 (1999).
[107] Press Act, No. 40 (1999).
[108] The Constitution of the Republic of Indonesia, 1945, at 28.
[109] Supra note 111, at. 14, 23, 32, 60.
[110] Second Amendment to the Constitution of the Republic of Indonesia (2000).
[111] Supra note 111, at 14(1).
[112] Id. at 14(2).
[113] Id. at 23.
[114] Id.
[115] Id. at 32.
[116] Id. at 60.
[117] Indonesia’s Ratification of the International Covenant for Civil and Political Rights, Law No. 12 (2005), at. 19-20.
[118] Supra note 13.
On 25 March 2008, the Indonesian legislature passed Indonesia’s first law regulating cyber world; the Information and Electronic Transaction Act[1] (the ‘Act’). The Act has controversial provisions, which criminalize the act of accessing Internet sites containing violent, pornographic material, SARA-based (ethnic, religious, racial, and inter-group) materials or the act of defaming someone in the Internet.[2] Both the media and Indonesian web users have criticized this part of the law internally. They say the law violates their Constitutional rights to freedom of speech and to obtain information. This has further been proved in the controversial case that involved Prita Mulyasari. Her complaints on Omni International Hospital for an illness that was misdiagnosed in her e-mail to friends were made public and she was jailed following a civil defamation suit by the Hospital. Her arrest by the police was based on Article 27 paragraph (3) of the Act, which states that person whom with intention distributed and/or transmitted an accessible electronic information or document that consists insult or defamation element on it is subject to criminal charge and can be sentenced up to 6 years and/or penalty in the maximum amount of Rp. 1,000,000,000.00 (one billion rupiah).
Despite these, the new Act has established positive points deemed beneficial to the legal framework regulating Internet usage in Indonesia. For example, the Act allows the use of electronic information, electronic documents, and their printed format as evidence in court.[3] This is a breakthrough in both Indonesian civil and criminal procedural law as it means that in the course of a dispute, all well-documented electronic communications can be used as evidence in court.
Moreover, the Act establishes the first general rule on how to conduct business over the Internet. It requires Internet business owners to provide complete and correct information pertaining to their businesses on the Internet, specifically for online contracting and for the product offered over the Internet.[4] This provision seeks to prevent Internet business owners from providing misleading information on their websites in order to lure consumers into buying their products and services. The Act also stipulates that an electronic signature is binding as long as it is made and used by the person him/herself.[5] This provision benefits people who conduct business through the Internet as well as the online banking customer user who authorizes his/her the bank to conduct certain instructions on his/her behalf. The Act further regulates E-commerce sites by requiring a feature for its users to change their information during the transaction process.[6]
The Act also clarifies the protection of intellectual property rights (‘IPR’) over the Internet.[7] It regulates matters related to Internet domain and copyrights law. With regard to Internet domain, the Act concentrates on, first and foremost, the usage of Internet domain. It requires that the usage of Internet domain should be in good faith and must not violate other entity’s proprietary right.[8] Secondly, it deals with the issue of copyright. According to the Act, an Internet user has to ask permission or license the work of the copyright owner before using them on the Internet.[9] This reinforces the protection of IPR over the Internet, supplementing a group of Indonesian’s set of laws[10], which seek to protect IPR in compliance with both the Paris Convention and the Agreement on Trade Related Aspects of IPR (TRIPS). Another positive aspect of the law is that it upholds the right of privacy of an individual by prohibiting the trespass of another individual’s electronic information, document, system or computer.[11] It also prohibits the interception of electronic information and documents in a computer or an electronic system.[12]
Despite the above cited positive points, the Act seemingly violates freedom of speech and the right to information by prohibiting and criminalizing any kind of access to internet sites containing violent, pornographic material, or SARA-based (ethnic, religious, racial, and inter-group) materials. It also provides the possibility of misuse of the provision regarding defamation by the police or other interested third parties. This accusation was brought by Indonesian Internet users who are concerned that they will not enjoy the freedom they used to have when surfing the Internet have criticized this.
Even though the Act was enacted to protect Internet users in Indonesia, the Act likewise limits the activities of Indonesian Internet users. Indonesian bloggers are now concerned that the content of their writing may lead to criminal charges. All of these concerns is reasonable since there is already the case law of Prita Mulyasari to prove it.
This article is presented with the aim to conduct a comparative study of the Act against the content regulations law in the United States. Chapter II will look at the first controversy that had occurred after the enactment of the new law in Indonesia. A discussion of foreseeable problems related to the Act also ensues. There will be a general discussion on the online content regulations in the United States in Chapter III, where the focus will be on the law on indecent or obscene communications. There will also be a discussion on the different perspectives between Indonesia and the United States’ online content regulation. Chapter IV will examine whether or not the Act complies with the right of the Indonesian people to express their opinion stated in the Indonesian Constitution and other pieces of legislation. Finally in Chapter V, a recommendation will be presented to solve foreseeable problems arising from the enforcement of the Act. The article will also explore the possibility of implementing some of the United States’ online content law in Indonesia.
II. Problems regarding the New Information and Electronic Transaction Act in Indonesia.
The blockade of You Tube and other sites in relation with the Movie Fitna The first instance wherein the Act was used related to the blocking of sites containing Geert Wilders ‘Fitna’[13] by the Indonesian Government. The government’s action sparked protests from Internet users in Indonesia. In his letter dated April 2, 2008, the Minister of Communication and Information Technology requested the Indonesian Association of Internet Service Providers to block sites, which broadcast Fitna.[14] The Government justified its action by citing the Act. They also stated that the underlying reason for this policy is because the government is worried that the movie can damage the relationship between people with different religions in both Indonesia and the world.[15] Based on that letter, Internet Service Providers in Indonesia began to block YouTube, Multiply, MySpace, Metacafe, Liveleak, and Rapidshare sites on April 8, 2008 to comply with the letter from the Minister.[16] Yet, the access to those websites was then restored on April 11, 2008 due to continuous protests from web users in Indonesia.[17] Muhammad Nuh, the Indonesia Minister of Communication and Information, formally apologized for the Internet blockage and justified his actions stating a public emergency situation.[18] The formal apology notwithstanding, the Indonesian Internet Service Providers are still blocking access to websites, which have Fitna.
The Indonesian Government also sent a letter to You Tube asking the website to remove the film.[19] An announcement appearing on the official website of the Indonesian Ministry of Communication and Information Technology saying Google has replied to the Minister’s letter.[20] In that letter, Google offered to block websites and movies that are illegal under the Act.[21] It is therefore possible that internet users in Indonesia will later have restricted access to several websites deemed to have sexual, violent or SARA-based (ethnic, religious, racial, and inter-group) content.
This policy has sparked heated debate in Indonesia. Many Indonesians who are critical of the law have argued that the government has denied the people’s right to information. Indonesian political and media expert and former spoke person for the President Wimar Witoelar was quoted saying, “This is a really clumsy move by the government. It shows how the government is exploiting certain religious issues to suppress the freedom of its citizens.”[22] Denying access to YouTube can also be seen as taking a step back in the post-Soeharto; the toppling of the Soeharto government marked the end of a three-decade censorship law.[23] On the other hand, many have expressed their agreement towards the Indonesian government’s action. The Head of the Parliamentary Cooperation of the Indonesian Congress, Abdillah Toha, was quoted saying, “There has to be an action to stop the distribution of the movie Fitna in the Internet because that movie contains a wrong interpretation of the Koran and portrays a minority Islamic group in Islam, terrorists, as a true representation of Islam.”[24] Users of YouTube who use the website for commercial and educational activities have also reacted to the Government’s efforts to block access to YouTube. It turns out that there are Indonesians who used You Tube and other sites mentioned in the above as a media to sell their products or to watch lectures from abroad.[25] Blocking their access to YouTube definitely affects their source of income as well as their right to obtain information.
b. Foreseeable Problems relating to the New Information and Electronic Transaction Act.
Internet users in Indonesia, among them are Internet café owners, currently see the new law as a threat. Since a computer is still considered expensive for the majority of people in Indonesia, the existence of more than 2,500 Internet cafes in Indonesia offers opportunities to people to obtain information and to communicate globally.[26] These Internet cafes are now in fear of the long arm of the new law. The law criminalizes not only the actor accessing prohibited materials online but also the person who provides the means to access the said prohibited materials.[27] Furthermore, looking at the corruption climate in Indonesia,[28] it is feared that the police or other government agencies would take advantage of the vagueness of the law. The law has granted a power to police to inspect Internet cafes.[29] There is skepticism that the police will misuse their discretionary power and seek it as a means to extort internet café owners . This fear is reasonable since the Indonesian Police Department is notoriously known as the most corrupt institution in Indonesia.[30]
Bloggers are likewise in fear of the new law; the criminal provisions of the law now lend to the possibility that suit may be filed against them on the basis of their blogs’ contents and for posting content written by other people in their blog. Unlike the United States, which already has a cyber law, Indonesia is not yet equipped with statutes and case law to yet determine what may and may not be done. For example, the United States has a provision in its Communications Decency Act of 1996 that protects blog owners from liability for posting harmful materials posted by other Internet users in their blog. However, the Act does not define the limitations of what a blogger can and cannot legally do. All the Act has is a statement from the Indonesian Minister of Communication and Information in its meeting with Indonesian bloggers: “Bloggers are not ‘Enemy’ but are (sic) a part of our community that has a big role in developing the world of information and technology in Indonesia.”[31] This statement alone is not an assurance that they can escape from prosecution.
III. The Online Content Regulations in the United States
a. The First Amendment to the United States Constitution
The freedom of speech is one of the most fundamental rights in the United States.[32] It is enshrined in the First Amendment of the United States Constitution, which states “Congress shall make no law abridging … the freedom of speech.”[33] Under United States law, there are few limitations to this right.[34] One of it is obscenity, an instance wherein courts have ruled that government has a compelling interest.[35] Another instance, defamation, is also subject to restriction based on the First Amendment.[36] These two limitations are applied by the United States in its regulations governing speech content that should be limited in cyberspace.
b. The Communication Decency Act of 1996 and Section 230
The Communication Decency Act of 1996 is a federal law, which regulates the content of materials transmitted and distributed over the Internet. The origin of the Communication Decency Act of 1996 came from the intention of Senator Exon to protect children from obscene materials proliferating over the Internet, and to deal with pedophiles stalking in the Internet.[37] This law was also intended to overrule decision in the case of Stratton Oakmont, Inc. v. Prodigy Services, Co., a controversial case before the New York State Supreme Court that held Prodigy, an online service provider, liable for libelous statements made by one it users.[38] In that case, the Court reasoned that Prodigy was the publisher of the statements made by its users because they constantly monitored the information on its bulletin board and removed offensive materials.[39] In response to this ruling, Congress decided to enact Section 230 as a part of the Communications Decency Act of 1996.
Section 230 establishes the immunity of Internet users and service providers from civil liability for any defamatory statement or obscene materials made by another party.[40] It also stipulates that an Internet service provider cannot be held liable for refusing to remove the statement from its service.[41] However, there are still limitations to this provision. In Fair Housing Council of San Fernando Valley v. Roomates.com, LLC, the Ninth Circuit rejected Roomate.com’s immunity under Section 230 by ruling that Roomate.com was acting as an “information content provider” since it solicited information from users concerning their roommate preferences.[42] This Act also does not apply to both intellectual property law[43] and federal criminal law.[44]
c. The Law on Indecent or Obscene Communications
Prior to the Communications Decency Act of 1996, Internet users were free to act in a manner they desired subject to no regulation. Yet, section 223 of the Act makes it a crime to engage in “obscene or indecent” communications with the “intent to annoy, abuse, threaten, or harass any person.” [45] However, in Reno v. American Civil Liberties Union, the Supreme Court ruled that section 223(a)(1)(B), (a)(2),[46] and (d)[47] of the Communications Decency Act are unconstitutional and unenforceable because they abridge the freedom of speech protected by the First Amendment.[48]
The Supreme Court reasoned that section 223 of the Act is too broad and without limitation. It does not allow parents to consent to their children’s use of restricted materials[49] and does not limit the act only to commercial transactions. Furthermore, it fails to provide the definition of “indecent” and “patently offensive”, establishing its coverage over non-pornographic materials with education or other value.[50] The Court was afraid that section 223 of the Communications Decency Act would abridge the freedom of speech enjoyed by adults. In the opinion of the Court, Justice Stevens was quoted to state; “…the CDA effectively suppressed a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.”[51]
Most importantly, the Supreme Court in Reno v. American Civil Liberties Union tried to differentiate indecent speech from obscenity. Relying on its previous decision,[52] the court ruled that indecent speech is entitled to the First Amendment protection because it often has substantial social value and lacks prurient interests. However, the Court also acknowledges that the rule should still be applied in relation to obscenity or child pornography.[53] The Supreme Court restates that material that is considered obscene to minors if it “(i) is “patently offensive to prevailing minors, (ii) appeals to the prurient interest of minors, and (iii) is utterly without redeeming social importance for minors.”[54]
After the decision in Reno v. American Civil Liberties Union, Congress enacted the Child Online Protection Act,[55] which differs from section 223 of the Communications Decency Act. The Child Online Protection Act applies only to communications for commercial purposes that are categorized as “harmful to minors.” The Act defines “harmful to minors” as “any communication, picture, image, graphic image file, article, recording, writing or other matter of any kind that is obscene or that (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or stimulated sexual act or sexual contact, an actual or simulate normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.”
The community standard stated in the Act is a much broader standard than the obscenity standard stated by the Court in Reno v. ACLU, therefore, it sparked another lawsuit by the American Civil Liberties Union. In the Supreme Court’s decision in 2004, the Supreme Court found that the Child Online Protection Act’s requirement that online publishers prevent children from accessing “material that is harmful to minors” is likely to violate the First Amendment.[56] The majority justices in the case feared that by allowing the enforcement of the Statute, it would prevent online publishers from publishing materials, and therefore, does not serve the guarantee of the freedom of speech under the First Amendment. [57] The Supreme Court maintains to block of the effectiveness of the law and remanded this case back to the lower court to give the United States’ government the chance to prove the Child Online Protection Act ‘s requirements were more effective in protecting minors and less restrictive to free speech.[58]
In 2005, an art photographer named Barbara Nitke argued that the obscenity provision of the Communications Decency Act is too broad and therefore should be deemed unconstitutional under the First Amendment to the Constitution.[59] Under the Supreme Court’s decision in Miller v. California, obscenity is defined based on the community standards.[60] Since Barbara Nitke is an internationally well-known photographer who focuses in depicting human sexual relations, she is afraid that the photographs the posted online in her websites could be found criminally liable according to the standards of the most restrictive community in the United States.[61] Therefore, she brought a claim arguing the unconstitutionality of the Act. However, the United States District Court for the Southern District of New York found that Nitke and her co-plaintiff, the National Coalition for Sexual Freedom, had presented insufficient evidence that the Community Decency Act limits people’s freedom of speech.[62] The Supreme Court later affirmed the ruling of the District Court on March 20, 2006 without opinion.[63] In order to avoid the possibility of criminally being charged for the depiction of human sexual relations in her website, Barbara Nitke made a disclaimer in her webpage that, “If you choose to enter this website, you are certifying that you are over 18 years of age, and are not offended by photographic depiction of the nude human form or of human sexuality. If you think you might have a problem with this subject matter, I respectfully ask you not to enter this website.”[64]
Also in parallel with online specific regulation as well as the law of obscenity, the United States requires that producers of sexually explicit conduct to be in compliance with the Child Protection and Obscenity Enforcement Act of 1988.[65] Under this law, the producers of sexually explicit material have to obtain proof of the age for every model they shoot and retain those records. In case of non-compliance, they face criminal charges. This law has an effect to the online community, and not only to members of the online adult industry trade group. The most discussed section of the Child Protection and Obscenity Enforcement Act is section 2257, which requires the producer to copy the identification of the model and keep a record and index all places where the image is published.[66] Section 2257 also requires the producer to list a statement consisting the date of production, an address where the records may be inspected during regular business hours.[67] Furthermore, it also states that the Attorney General or any designated agent may inspect the premises for compliance with the above requirements without giving advance notice or warrant or probable cause or reasonable suspicion.[68] Due to its nature, section 2257 of the Child Protection and Obscenity Enforcement Act is known as the Record Keeping Requirements provision.
In the case of Connection Distributing Co. v. Keisler, the United States Court of Appeals for the Sixth Circuit ruled that the record keeping requirements infringes the First Amendment protected speech because the provision is overly broad and burdensome.[69] The suit was brought by the publisher of swingers’[70] magazines and readers who submit sexually explicit pictures and messages to be included in the section of those magazines. They are concerned because their readers are persons who are willing to publish their photographs in the magazines but they do not want to create and maintain the required records nor provide the magazines with their identifications.[71] Therefore, they challenged the constitutionality of the record keeping requirements under 18 U.S.C. § 2257 and asked for an injunction against the enforcement. Currently, the decision is being reviewed by the Sixth Circuit en banc.
d. The Law on Defamation
Black’s Law Dictionary defines defamation as, “the act of harming the reputation of another by making a false statement to a third person” or “a false written or oral statement that damages another’s reputation.”[72] The term libel, which is relevant for the discussion of this paper, is used to address written or recorded defamation.[73] Under the law of defamation, the elements that must be proven to establish defamation are a publication to one other than the person defamed of, a false statement of fact, of and concerning another, tending to harm the reputation of plaintiff.[74] Yet, the burden of proof of a plaintiff who is a public figure is different with the burden of proof of a plaintiff who is a private figure.[75] It is more difficult for a public figure to prove defamation because they have to show “actual malice”, i.e., the publication is with knowledge of falsity or in reckless disregard for the truth[76] while a private figure only has to prove negligence. The law also requires that a plaintiff who is not a public figure to prove “actual malice” in the case where the defendant is a media, which is treating an issue of a public concern.[77]
Defamation is never under the protection of the freedom of speech because the act of defamation violates people’s basic right to privacy and reputation.[78] As a consequence, not only can the author of the defamatory statement be held liable for the defamatory statement, any person who plays a significant role in the publication or distribution of a defamatory statement can likewise be held liable.[79] Therefore, traditional newspaper publishers would be held liable for the publication of a defamatory statement because of their editorial control over the content of the publication.[80]
However, due to the different nature of the Internet compared to other traditional media, U.S. Congress decided to enact Section 230 of the Communications Decency Act, which is known better as the “Good Samaritan” provision. The purpose of the enactment of this law is to overrule decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material”[81] and to “maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.”[82]
Section 230 protects third party publishers such as Internet service providers, chat rooms, and bulleting board operators from defamatory comments made by others. In the early stages of its implementation, some courts were criticized for abusing the immunity granted by Section 230 of the Communications Decency Act. In Zeran v. America Online, the trial court granted judgment for America Online for delaying the removal of defamatory messages regarding Zeran on an online bulletin board.[83] In Blumenthal v. Drudge, the Court let America Online walk away from its responsibility even though it is reasonable to assume that it has control over the article written by Drudge from the agreement between them that allows America Online to modify or remove the content of Drudge’s article.[84] In that case, Drudge authored a defamatory statement alleging that Blumenthal had abused his wife.[85] In Carafano v. Metrosplash.com, Inc, somebody posted Carafano’s pictures and profile on Matchmaker.com, in which that person also listed her home address and telephone number.[86] Due to that, she received a lot of sexually suggestive voice mail messages.[87] She then sued Metrosplash.com on the grounds of defamation of character, misappropriation of the right of publicity, invasion of privacy and negligence.[88] Yet, the Ninth Circuit rejected her argument by basing it under the service provider immunity under the “Good Samaritan” Act.[89]
In its decision on the Fair Housing Council of San Fernando Valley v. Roomates.com, LLC case, the Ninth Circuit ruled that Roomates.com was not immune because it has actively sought information from its user that is discriminatory.[90] Yet, tit did not clearly define the immunity limitation of online service provider. This can be seen from the majority’s statement that “Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck bites, fighting off claims that they promoted or encouraged – or at least tacitly assented to-the illegality of third parties.”[91] For now, we can still say that the online law defamation in the United States still protects the immunity of online service providers as long as they are not active in the making of the defamatory statement.
e. Comparison of the law in the United States and Indonesia Governing Online Content
In general, the United States legislature and the Indonesian Legislature have similar intentions or purpose in regulating online speech. In the first phase of the introduction of the law in the United States, it is clear that the intention was to protect children from potentially harmful sexual materials in the Internet.[92] This is also the case in Indonesia. There is a strong feeling that regulating the content of the Internet would help parents protect children from potentially harmful materials in the Internet. Therefore, it is provided in Article 52 of the Act that the criminal sanction is higher for a person who provides sexual materials as well as for one involved in child pornography in the Internet.[93] However, this law is relatively very new in Indonesia, especially compared to the United States law, which was enacted 12 years ago. Therefore, we do not know yet whether the implementation of this new law will work out well or not in Indonesia.
In the United States, we see that the Supreme Court had ruled that some of the provisions in section 223 of the Communications Decency Act to be unconstitutional.[94] It also ruled in 2004 that the Child Online Protection Act was likely to be unconstitutional.[95] Nowadays, the United States still relies on the provision of the Communications Decency Act, which, in turn, attempts to protect minors from receiving “obscene” materials from the Internet, and to ban child pornography. Furthermore, the United States also enacted the Federal Labeling and Record Keeping Law, where the publisher of online materials has to be able to provide evidence that the models they use in the Internet are eighteen years of age or older when the materials were photographed.[96] There has been critique from many commentators regarding the current obscenity standard used for Internet regulation.[97] However, the obscenity standard in the case of Miller v. California still governs for cases involving obscenity.[98]
With regard to defamatory statements, both the United States and Indonesian law provide that the Internet is not a media where the users can post defamatory statements. Therefore, users who post defamatory statement and can be identified will be held liable for their actions. The difference would be that there is no liability for providers and users of an “interactive computer service” under the Indonesian law. In the United States, Section 230 of the Communications Decency Act of 1996 granted online service providers immunity from torts committed by other users over their systems.[99] Under the Act of 2008, there is no immunity given to online service providers. Moreover, the Head of the Cyber Crime Unit in the Police Department had stated that they had the right to conduct inspections in Internet Cafes in Indonesia to inspect whether there has been a violation of the Act.[100] Yet, he also stated that the Police Department would socialize the Act first to Internet Cafes before making further inspection or investigation steps.[101]
There has been a critic under section 230 of the Communications Decency Act on how courts interpreted it to provide complete immunity for internet service providers, even in cases where there is negligence conducted by the service providers in responding to the tort committed by their users. Yet, the immunity given is definitely important since it would help internet service providers such as Google to grow without running the risk of being sued left and right. Thus, Internet users still enjoy freedom to use the services provided by internet service providers without having been burdened financially and technically.
IV. Freedom of Speech in Indonesia in connection with Online Content Regulations
a. Law governing Freedom of Speech in Indonesia
Freedom of speech is a new notion in Indonesia. All of the Indonesians laws presently governing freedom of expression were enacted after Soeharto, the Indonesian dictator toppled as President in 1998.[102] Before that, exercising freedom of speech in Indonesia was suppressed. The Government controlled the media. Article 28 of the 1945 Constitution is a vague article, which states there is freedom of speech and that freedom will be governed by Law made by the Indonesian Parliament.[103] Soeharto and his cronies controlled the Parliament at that time. They passed a censorship law, and required compulsory licenses for the operation of the media.[104] During this era, the government dictated everything.
After Soeharto was overturned, the Legislature amended the text of the Constitution.[105] They also enacted the Human Rights Act, which became the foundation for freedom of speech in Indonesia;[106] for the first time in thirty years, the Indonesian press found itself free from any pressure or prohibition from the government.[107] This freedom likewise had some general positive effect on people - learnt to become critical and they expressed their will more through writings and other media.
Currently, freedom of speech is governed both in the Indonesian Constitution[108] as well as the Indonesian Human Rights Act.[109] Article 28 of the Constitution of the Republic of Indonesia, amended in 2000, guarantees the right of the Indonesian people to freely express their opinion, to communicate, as well as to obtain information.[110]
The Indonesian Human Rights Act regulates freedom of speech more thoroughly. Article 14 of the Indonesian Human Rights Act guarantees the right of the Indonesian people to communicate and receive information needed to develop their personality as well as their social environment.[111] It also guarantees people’s right to look, receive, own, save, and transmit information by using any means possible.[112] Article 23, paragraph (2) of the Indonesian Human Rights Act states that every one has the right to own and express their opinion both orally or in writing through any media.[113] Yet, unlike the freedom of speech in the United States, there are limitations: - those opinions have to be in line with religious value, decency value as well as government’s interest and public policy.[114] Article 32 of the Human Rights Act guarantees the freedom and secrecy in electronic correspondence subject to the issuance of a court order.[115] Also relevant to the concern of this article is Article 60 of the Human Rights Act, which governs the right of children to find, receive and send information in accordance with their age and intellectual level as long as that information is in line with the decency value of the Indonesian community.[116] It can be seen from the above that Indonesia guarantees the freedom of speech even though it is subject to several limitations. Furthermore, Indonesia has also ratified the International Covenant for Civil and Political Rights without any reservation to the provision concerning the freedom of speech.[117]
b. Conflicts between Freedom of Speech and Public Policy at play in the New Internet Censorship Law in Indonesia
The issue here is whether the government will suppress freedom of speech and expression in Indonesia by criminalizing the making, transmission or distribution of materials that contain violent, pornography, or SARA-based (ethnic, religious, racial, and inter-group) materials or whether they will indeed maintain law and order through the implementation of said law. It is mostly feared that the Act limits the right to information and the right to express opinions in the Internet that is guaranteed by the Constitution as well as the Indonesian Human Rights Act.
The Government argues the content of the Act is in line with the limitations stated in both the Indonesian Constitution as well as the Human Rights Act. They further argue that the new law only limits the freedoms to transmit and receive information that are in conflict with the values that are highly preserved in the Indonesian society. Therefore, it is a public policy issue, which overrides freedom of expression.
Yet, it is also reasonable to say that the content of the law that criminalizes actions that relate to violent, pornography, or SARA-based (ethnic, religious, racial, and inter-group) materials in the Internet actually do violate the freedom of expression’s notion in both the Indonesian Constitution as well as the Human Rights Act. Article 28 was amended to serve the objective of the freedom of the Indonesian people to obtain information and to communicate. It also highlights the freedom of press. The implementation of the Act will endanger these notions. The Indonesia government will then violate its people rights to receive information by blocking certain websites they believe to contain violent, pornography or SARA-based (ethnic, religious, racial, and inter-group) materials.
The problem is highlighted further by the fact that there is no guidance on what is considered ‘pornography’ and what is ‘violent’. Does that mean that the government would block a website containing Botticelli’s Birth of Venus because it contained a picture of a naked woman? What will happen in a scenario where an Indonesian police conducts a search in an internet café and seeing a teenager looking at female friends’ pictures on Facebook and makes an arrest because he believes the teenager has violated the decency norm? Further, the threat of criminal charges will suppress the freedom of the press and also the people in voicing their opinion over the Internet. It is reasonable to state that people will be reluctant to express their opinion on the Internet for fear of prosecution based on the writings, pictures or video they post.
The new law is also in conflict with the provisions of the Human Rights Act. The Act clearly violates the guarantee of freedom and secrecy in electronic correspondence enshrined in the Human Rights Act. What should happen if a friend sends an e-mail to another friend containing a sexual health article? Would the Government then indict them for correspondence that is educational? Furthermore, this can also be an implied violation of the right of privacy. This right of privacy is also regulated in the Act itself.[118]
Further, the Act actually contravenes the children’s right that is governed under the Human Rights Act. Under Article 60 of the Human Rights Act, children have the right to find, receive and send information in accordance with their age and intellectual level as long as the information is in line with the decency value of the Indonesian community. This again relates to the concern of Justice Stevens in the Reno v. ACLU case, on whether a parent allowing her 17-year-old to use the family computer to obtain information from the internet that is deemed appropriate by the parent would violate the Act itself. From the above illustration, there is a conflict between the people’s right to free exchange of information and opinion as opposed to the Indonesian policy to protect its citizens from so-called “corrupt” values. The question is which one should prevail. Looking at the facts, it is reasonable to say that freedom of expression should prevail because the vague implementation of the law will sacrifice not only the Indonesian’s people freedom of expression but also basic important values that are inherent to the Indonesian’s citizens, such as right to privacy and right to education. The law also threatens the developments in this area in the post- Soeharto era.
Moreover, it is reasonable to say the absence of guidance on how the law should be enforced would also endanger the Indonesian public police, insofar as legal certainty is concerned. Without a clear standard on what violates those norms, it is highly probable that a situation involving abuse of power by the police, other agents of the government may arise. Here, innocent people such as internet cafe owners, including those who have undertaken precautionary measures by downloading blocking software, will face the danger of prosecution because of the conduct of its customers. A scenario where a blogger will face the possibility of an indictment due to a picture or video he/she or his friends posted is also foreseeable. We can also see a scenario where the right of someone to earn a living will be deprived because of the uncertainty whether the existence of the media he/she is using to earn a living to the internet will be threaten by the new regulation. These all lead to the question : - is there value in justifying the public policy to protect citizens from so-called “corrupt” values by sacrificing two basic and inherent rights articulated in the Constitution and other Indonesian laws.
V. Conclusion
The Act is too broad and vague. It only states that it will criminalize those who access internet sites containing violent, pornographic material, or SARA-based (ethnic, religious, racial, and inter-group) materials. This will lead to different kind of implementation of interpretation from all agents of the government as well as the judiciary.
As a democracy, the principle of freedom of speech and the right to obtain information are important principles. This can mean a flexible, and not absolute freedom of speech that is consistent with the values of the Indonesian people. The freedom of expression here should not be used to justify violence, defamation, obscenity as well as discrimination or hate speech. Yet, the freedom of expression here should be used to educate the Indonesian people to critically think and decide what they want. The Act threatens the freedom of its people to express their opinion as well as to obtain information. The threat of criminal charges would make people reluctant to express their opinion in the Internet. Further, government’s plan to block certain websites also affects the right of the Indonesian people to obtain information. In relation to that, it is reasonable to conclude that as a consequence, the Indonesian people will be left behind in the development of information and technology.
The government claims a compelling interest exists which justifies enforcing the online content regulation provided by the Act. Yet, that justification conflicts with other compelling Governmental interests, such as the obligation of the Government to guarantee the freedom to exchange ideas, right to education and right to privacy that are laid out in the Constitution and other laws.
Learning from the example of the United States law governing online content, there should be an immunity clause for interactive Internet service providers, such as Internet cafes so that they could not be subjected to the long arm of the law. Naturally, learning from the precedence of the United States, the law should also balance the interests of third parties, especially the users of these service providers. Therefore, there should always be redress in the case where there is a tort violation.
In the case where the law should still be upheld, it should be limited only to the protection of children since they are indeed vulnerable. It is unreasonable to dictate what information adults can and cannot obtain; it is reasonable to assume that an adult has attained the maturity level to determine what is good and bad for him/her. Blocking websites and filtering key words in the Internet is not a solution to prevent pornography. The Government should be more involved in sex education and Internet literacy to protect the next generation. Finally, the government should make supporting rules implementing the Act to ensure clear standards exists insofar as enforcement is concerned and judicial interpretation are concerned. Therefore, the law can strike a balance between protecting citizens from harmful materials as well as preserving freedom of speech in a democratic Indonesia.
[1] Information and Electronic Transaction Act, Republic of Indonesia (2008).
[2] Lilian Budianto, House Set to Pass Bill Banning Online Porn, Jakarta Post, available at http://old.thejakartapost.com/detailweekly.asp?fileid=20080325.@01. Lucy Williamson, Indonesia Acts on Internet Porn, BBC News, available at http://news.bbc.co.uk/2/hi/asia-pacific/7313497.stm.
[3] Supra note 1, at 5.
[4] Id. at 9.
[5] Id. at 11.
[6] Id. at 22.
[7] Id. at 23-26.
[8] Id. at 23(2).
[9] Id. at 25-26.
[10] Patent Act, Republic of Indonesia, No. 14 (2001). Trademark Act, Republic of Indonesia, No. 15 (2001). Copyrights Act, Republic of Indonesia, No. 19 (2002). Industrial Design Act, Republic of Indonesia, No. 31 (2000). Layout Designs of Integrated Circuits, Republic of Indonesia, No. 32 (2000). Trade Secrets Act, Republic of Indonesia, No. 30 (2000). The Website of the Directorate General of Intellectual Property Right of the Law and Human Rights Department of the Republic of Indonesia. http://www.dgip.go.id/ebscript/publicportal.cgi?.ucid=2662&ctid=77&type=0.
[11] Supra note 1 at 30.
[12] Id. at 31.
[13] Fitna is deemed by the Indonesian government as an anti-Islam movie. This movie is made by Geert Wilders, a Dutch citizen. The movie can be seen on http://www.fitnathemovie.info/videos.php. In that movie, Geert Wilders tried to establish that verses from the Koran serve as the basis of terrorism. He described his film as “a call to shake off the creeping tyranny of Islamization.”
[14] Letter No: 84/M/KOMINFO/04/08 from Muhammad Nuh, Minister of Communication and Information, Republic of Indonesia, to the Head of the Indonesian Association of Internet Service Providers (Apr. 2, 2008). The preview of the letter can be seen at http://djunaedird.files.wordpress.com/2008/04/menkominfo_fitna.jpg.
[15] Id. (It is reasonable to say that as a country with the largest Moslem population; the Indonesian people (both Moslem and non-Moslem) should not have a problem in digesting the movie. Further, it is arguable that the movie should be studied by the Islam intellectuals in Indonesia so they can address and clarify the accusations inside the movie. Therefore, the Indonesian government’s rationale in banning websites containing the movie Fitna is unreasonable).
[16] Mike Nizza, YouTube in Indonesia’s Sights over Dutch Film, The New York Times, April 3, 2008.
[17] Mita Valina Liem, Indonesia Restores Access to YouTube Web site, Reuters available at http://www.reuters.com/article/internetNews/idUSJAK31369920080411.
[18] Nabiha Shabab, Indonesia Apologises for YouTube Blockade, Agence France-Presse. http://www.france24.com/en/20080411-indonesia-apologises-youtube-blockade.
[19] Patrick Goodenough, YouTube Warned to Remove Koran Film, Cybercast News Service, available at http://www.cnsnews.com/news/viewstory.asp?Page=/Culture/archive/200804/CUL20080402b.html.
[20] Ministry of Communication and Information Technology of the Republic of Indonesia, Google is willing to help Indonesia in blocking Illegal Websites available at http://www.depkominfo.go.id/.
[21] Id.
[22] Internet Blocking Costs “Government Credibility,” The Jakarta Post available at http://www.thejakartapost.com/news/2008/04/11/internet-blocking-costs-039government-credibility039.html.
[23] Dijk, Kees van. A country in despair. Indonesia between 1997 and 2000. 2001. KITLV Press, Leiden. ISBN 90-6718-160-9. (Soeharto was an Indonesian dictator who held a 32 years of presidency. During his era, there were numerous human rights violations; a censorship law was also enacted).
[24] Antara. Parliament: We Need an Action to Stop the Distribution of the Movie “Fitna” in the Internet.
[25] Budi Rahardjo, The Information and Electronic Transaction Act, You Tube, etc. available at http://rahard.wordpress.com/2008/04/05/uu-ite-fitna-youtube-dan-lain-lain/.
[26] Association of the Indonesian Internet Service Providers. The Market for Providing Internet Amounts to 200 billion Rupiah available at http://www.apjii.or.id/news/index.php?ID=2002052301505&lang=ind. (Stating that there are around 2,500 internet cafes in operation in the end of 2005).
[27] Supra note 1, at. 34.
[28] Transparency International, TI Corruption Perceptions Index, 2007. http://www.transparency.org/policy_research/surveys_indices/cpi. Ed Davies, U.N. Graft Meeting Targets Plundering Leaders, Reuters, January 28, 2008. http://africa.reuters.com/wire/news/usnJAK108833.html. (A research by Transparency International consistently treated Indonesia as one of the world’s most corrupt nations).
[29] Supra note 18.
[30] Indonesian Corruption Watch. Police Department is the Most Corrupt Entity in Indonesia. December 7, 2007. http://www.antikorupsi.org/mod.php?mod=publisher&op=printarticle&artid=11823. (The Indonesian Corruption Watch reported that based on the Global Corruption Barometer Research conducted by the Indonesian Transparency International, the police is the most corrupt institution in Indonesia). (It also has to be noted that the Indonesian government has been consistently fighting corruption after the dictatorship era of Soeharto. This can be seen from the improvement of its corruption index. In the year of 1995, Indonesia was the worst in world poll of international corruption conducted by Transparency International. Last year, Indonesia has managed to leave that position and left behind 34 countries. Nowadays, due to the establishment of the Eradication Corruption Commission, Indonesia has managed to fight corruption on the upper level. Since corruption in the lower level is still common and even justified by the people itself, it is feared that police officials will misuse the broadness of the new Indonesian Law on Information and Electronic Transaction as a mean for them to obtain money from the owners of the internet cafes).
[31] Chip Online Magazine. Minister of Communication and Information Technology: Bloggers are not Enemies. (April 8, 2008). http://www.chip.co.id/special-reports/menkominfo-blogger-bukan-musuh-tapi-keluarga.html.
[32] NAACP v. Button, 371 U.S. 415, 433 (1963). New York Times Co. v. Sullivan, 376 U.S. 254, 269(1964).
[33] First Amendment to the United States Constitution.
[34] The minimum limitation can be seen from the fact that the Supreme Court had decided that restrictions on hate speech is unconstitutional. R.A.V. v. St. Paul, 505 U.S. 377 (1992).
[35] Roth v. United States, 354 U.S. 476, 484-85.
[36] New York Times Co. v. Sullivan, 376 U.S. 254, 269(1964).
[37] Dominic Andreano, Cyberspace: How Decent is the Decency Act?, 8 St. Thomas L. Rev. 593 (1996). Ken S. Myers, Wikimmuniy: Fitting the Communications Decency Act to Wikipedia, Harvard Journal of Law & Technology, Volume 20, No. 1 Fall 2006.
[38] Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995).
[39] Id.
[40] 47 U.S.C.A. § 230.
[41] Id.
[42] Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, WL 879293 (9th Cir. April 3, 2008) (en banc).
[43] 47 U.S.C.A. § 230(e)(2). Gucci America, Inc. v. Hall & Associates, 135 F. Supp. 2d 409 (S.D.N.Y. 2001). Perfect 10, Inc v. CC Bill LLC, 481 F.3d 751 (9th Cir. 2007).
[44] 47 U.S.C.A. § 230(e)(1).
[45] 47 U.S.C. S 223 (a)(1)(B)(ii), (a)(1)(c)
[46] 47 U.S.C. S 223 (a) prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age
[47] 47 U.S.C. S 223 (d) prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years old.
[48] Janet Reno, Attorney General of the United States, et al. v. American Civil Liberties Union, et. al., 521 U.S. 844 (1997).
[49] Id. (Justice Stevens in the Opinion Court made an analogy, “Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material “indecent” or “patently offensive,” if the college town’s community thought otherwise.”
[50] Id.
[51] Id.
[52] Sable Communications v. FCC, 492 U.S. 115 (1989).
[53] Supra note 50.
[54] Ginsberg v. New York, 390 U.S. 629 (1968).
[55] 47 U.S.C. § 231
[56] Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004). (This law was blocked from taking effect by a lower court order in 1998).
[57] Id.
[58] Id.
[59] Nitke v. Gonzales, 2005 U.S. Dist. LEXIS 15364.
[60] Miller v. California, 413 U.S. 15 (1973). (The Supreme Court in this case held that material is obscene if each of the following factors is satisfied, “whether the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest, whether the work depicts/describes in a patently offensive way sexual conduct specifically defined by applicable law, whether the work taken as a whole lacks serious literary, artistic, political or scientific value.” )
[61] Barbara Nitke, My Lawsuit against the Communications Decency Act, http://www.barbaranitke.com/aboutlawsuit.html.
[62] Supra note 62.
[63] Id. http://www.supremecourtus.gov/orders/courtorders/032006pzor.pdf.
[64] Nitke, A Personal Statement, available at http://www.barbaranitke.com/disclaimer.html.
[65] 18 U.S.C. § 2251 et seq.
[66] 18 U.S.C. § 2257(b) (2006).
[67] Id. at 2257(e).
[68] Id. at 2257(c).
[69] Connection Distributing Co., et al. v. Keisler, 2007 ILR Web (P&F) 2869 [6th Cir].
[70] Swinging is “non-monogamous sexual activity, treated much like any other social activity, that can be experienced as a couple.” Berg strand & Williams, Today’s Alternative Marriage Styles: The Case of Swingers, Electronic Journal of Human Sexuality, Vol. 3, 10 October 2000.
[71] Supra note 71.
[72] Black’s Law Dictionary (8th ed. 2004), defamation.
[73] Id.
[74] Restatement (Second) of Torts § 558 (1977). 50 Am. Jur. 2d Libel and Slander § 6 (2006)
[75] Robert D. Sack, Sack on Defamation § 3.3 (2006)
[76] New York Times v. Sullivan, 376 U.S. 254 (1964).
[77] Gertz v. Robert Welch, 418 U.S. 323, 349-50.
[78] Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 12, U.N. Doc A/810 (Dec 10. 1948). Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring) (“The individual’s right to protection of his own good name reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty).
[79] Restatement (Second) of Torts § 578 (1977).
[80] Gerald R. Ferrera et. al., Cyberlaw: Your Rights in Cyberspace 185 (2001).
[81] S. Conf. Rep. No. 104-230, at 195 (1996), reprinted in 1996 U.S.C.C.A.N. 10.
[82] Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997).
[83] Id.
[84] Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
[85] Id.
[86] Carafano v. Metrospalsh.com, Inc, 339 F.3d 1119 (9th Cir. 2003)
[87] Id.
[88] Id.
[89] Id.
[90] Supra note 45.
[91] Id.
[92] Supra note 40.
[93] Supra note 1, at 52.
[94] Supra note 50.
[95] Supra note 58.
[96] Supra note 69. (This law is currently being challenged in the Sixth Circuit)
[97] Mark Cenite, , Federalizing or Eliminating Online Obscenity Law as an Alternative to Contemporary Community Standards, 9 Comm. L. & Pol’y 25 (2004). Roman A. Kostenko, Are “Contemporary Community Standards” No Longer Contemporary?, 49 Clev. St. L. Rev. 105 (2001).
[98] Supra note 63.
[99] Supra note 43.
[100] Antara, The Minister of Communication and Information Stated that the Information and Electronic Transaction Act would not Threaten Internet Cafes, http://www.antara.co.id/arc/2008/3/29/menkominfo-bantah-uu-ite-ancam-bisnis-warnet/.
[101] Id.
[102] Fred Hiatt, Suharto’s Fall. The Washington Post (May 24, 1998). http://pqasb.pqarchiver.com/washingtonpost/access/29670445.html?dids=29670445:29670445&FMT=ABS&FMTS=ABS:FT&date=MAY+24%2C+1998&author=Fred+Hiatt&pub=The+Washington+Post&desc=Suharto.
[103] Constitution of the Republic of Indonesia, at 28. (1945).
[104] Andy M. Bayuni, World Press Freedom Day: We who Believe in Freedom cannot Rest. Directorate General of Human Rights (May 4, 2004). http://www.ham.go.id/index_HAM.asp?menu=artikel&id=124> Nuria. W. Soeharto, Internet and Indonesia in Its Chaotic Period: the Net Makes it Work, the Net Makes it Worse. http://www.widyasari.eu/paris8/file/artikel/english/networse.pdf.
[105] First Amendment to the Constitution of the Republic of Indonesia (1999).
[106] Human Rights Act, No 39 (1999).
[107] Press Act, No. 40 (1999).
[108] The Constitution of the Republic of Indonesia, 1945, at 28.
[109] Supra note 111, at. 14, 23, 32, 60.
[110] Second Amendment to the Constitution of the Republic of Indonesia (2000).
[111] Supra note 111, at 14(1).
[112] Id. at 14(2).
[113] Id. at 23.
[114] Id.
[115] Id. at 32.
[116] Id. at 60.
[117] Indonesia’s Ratification of the International Covenant for Civil and Political Rights, Law No. 12 (2005), at. 19-20.
[118] Supra note 13.
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