What’s in the Indonesian ITE Law?: Beyond the Haris and Fatia defamation acquittal

Background  

In 2008, the enactment of the ITE Law (Electronic Information and Transactions Law) during President Susilo Bambang Yudhoyono’s administration supposedly aimed to protect individual rights in the digital realm. However, a closer examination reveals a law that, despite having multiple amendments, remains a tool of repression, stifling freedom of expression and dissent. 

The 2016 amendments by President Joko Widodo and the Indonesian parliament in December 2023 were touted as efforts to address such concerns. Yet, the following changes fell short, leaving the ITE Law still entrenched with oppressive provisions. The focus on defamation and hate speech articles has enabled the government to manipulate and silence critics, as evidenced by over 500 cases involving journalists, rights defenders, and activists between 2019 and 2023, as reported by Amnesty International Indonesia. 

Problems with the ITE law 

The law’s recent amendment in December 2023, while superficially narrowing the legal definition of defamation, halving sentences, and imposing a higher burden of proof, failed to address fundamental issues that made it a threat against freedom of expression. The retention of criminal defamation contradicts the UN Human Rights Committee stance that says “imprisonment is never an appropriate penalty” for defamation. Furthermore, the addition of provisions criminalizing content inciting “feelings of hatred or hostility” and “false statements” leading to “public unrest” further introduces ambiguity prone to misuse by those in power. 

A prominent example of the law being weaponized could be seen in the defamation case of activists Haris Azhar and Fatia Maulidiyanti. On August 20, 2021, an uploaded YouTube video featured a discussion between the two activists about certain companies that were linked to the exploration of Wabu Block gold mine in Intan Jaya, Papua, Indonesia. The video’s discussion was prompted by a report detailing concessions granted by the Indonesian government to certain companies, some of which were linked to Luhut Binsar Pandjaitan, the Coordinating Minister for Maritime and Investment Affairs. 

The minister, an alleged minority shareholder in one of the mentioned companies, issued two subpoenas to Haris and Fatia on August 26 and September 2, 2021, following the release of the videos. According to the Minister’s spokesperson, he believed that the content of the videos contained untrue opinions, character assassinations, and fake news. 

Subsequently, on March 17, 2022, Haris and Fatia faced defamation charges under Article 27, paragraph (3) of the ITE Law. Almost two years later, on January 8, 2024, the activists were acquitted of all charges. The court determined that the comments made by Haris and Fatia on YouTube did not meet the criteria for criminal defamation. 

The acquittal of Haris and Fatia over their defamation charges under the ITE Law has further cast a light on the challenges faced by human rights defenders under the said law. Although the favorable verdict provides a ray of hope, doubts remain on its impact on freedom of expression because of the government’s retention of disputed articles addressing hate speech, defamation, and false news. 

Another case of the law’s weaponizations against dissenters can be noted in Berita News journalist Muhammad Asrul’s three-month prison sentence in January 2020 because of his series of articles that accused local politicians of embezzlement and corruption in building projects in 2019. This incident illustrates the law’s chilling effect and its profound impact on press freedom, sending a message that an individual could be imprisoned because of investigative reporting. 

The monitoring of Alliance of Independent Journalists (AJI) revealed that 38 journalists, with 4 individuals imprisoned, were reported under the ITE law from 2008-2016. 

Stella Monica, a beauty clinic client, initially faced charges of defamation under the ITE Law after expressing concerns about her facial health on social media. She was initially charged with a one-year prison term and a fine of about 700 USD, eventually the court acquitted her in December 2021. The case further highlights the controversial nature of the law, with individuals like Stella facing legal consequences for online expressions, even when it involves personal experiences with service providers. 

Cases like those of Stella depict how ordinary citizens become victims of the ITE Law, facing criminal defamation charges and hefty fines for expressing their opinions on social media. 

The future of ITE law and the state of freedom of expression in Indonesia 

The acquittal of Haris and Fatia in their defamation case under the ITE Law stands as a small victory in the ongoing struggle for human rights. It sheds light on the formidable challenges faced by human rights defenders under a legal system that remains deeply flawed. While the favorable verdict offers a glimmer of hope, the harsh reality exposed is that the ability to afford and sustain a legal battle against powerful figures remains an uphill battle for many. 

The doubts lingering over the impact of the acquittal on freedom of expression are heightened by the government’s retention of contentious articles. The ITE Law’s persistent flaws and the failures of recent amendments underline a legal framework that not only falls short of international covenants but actively undermines fundamental rights and freedoms. 

As Indonesia grapples with the ongoing misuse of the ITE Law against critics, it is crucial to remain critical in reevaluating the policy. The law must be shaped to align with the principles of democracy and uphold the right to free speech. The acquittal, while a step in the right direction, underscores the urgent need for systemic changes to ensure that justice is not only attainable for those with resources but is a right accessible to all, regardless of their position against powerful entities.

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