UNAIR NEWS – President Jokowi signs Law Number 1 of 2024 on the Second Amendment to Law Number 11 of 2008 on Electronic Information and Transactions (ITE), January 2, 2024. The DPR RI previously approved the law on December 5, 2023.
No elastic ITE articles
Professor Dr Henri Subiakto, Drs., SH., MSi, a Communication Expert from Universitas Airlangga, revealed that the second revision of the ITE Law involves changes to 14 articles and the addition of 5 new articles. He emphasized that no single clause in the ITE Law restricts freedom of expression, assuring that the public’s ideas are not constrained.
“Frequently, misunderstandings occur due to incorrect interpretations by law enforcement officials, not the result of the ITE Law. These misunderstandings occur when they refer to the ITE Law rather than a thorough review of the relevant sections in the Criminal Code (KUHP) or the Joint Decree of the Three Ministers,” he said.
The Communication Science lecturer noted the second iteration includes a more detailed and clear definition of norms. As a result, the ITE Law must now refer to other legislation as actual norms, reducing the potential for misinterpretation.
Needs reconsideration
However, Prof. Henri pointed out that several articles in the law need to be reconsidered. For example, Article 27, paragraph 1 includes the added phrase ‘for public knowledge’. He believed that it represented an infiltration of liberal values.
“It relates to moral offenses, such as pornography. The latest amendment makes it more difficult to prosecute pornographic distribution under the ITE Law because it now only applies if the dissemination is ‘for public knowledge’. This may seem like a minor change, but it is highly significant. Pornography is often spread privately instead of publicly,” he said.
He named another problematic article, Article 27A of the ITE Law’s second revision, an amendment from Article 27 paragraph (3) of the ITE Law. There is a change originally referenced to the Criminal Code (KUHP) regarding defamation or blasphemy, notably Articles 310 and 311 concerning ‘someone’. In the updated article, however, it is stated as ‘other person’.
“In the previous article, situations involving the insult or defamation of a specific individual with a clear identity were subject to prosecution. An absolute complaint offense could only be filed by the person whose identity was mentioned. However, the new article becomes more general due to the use of the term ‘other person’, which is broader. This raises the question: does every individual now have the right to file complaints and report related cases?” he said.
The professor also mentioned Article 28, paragraph 2, which prohibits the spread of hate speech based on ethnicity, race, or religion (SARA). Specific groups, such as political parties or similar organizations, are not referenced in the revised article. However, it is frequently the categorizing into such groupings that leads to conflict. This omission in the law raises questions about its efficiency in resolving conflicts emerging from group categorizations other than ethnicity, race, and religion.
“Because it may not adequately fulfill the needs in conflict resolution, this article constitutes a normative gap. For example, if a group of people refers to someone as ‘Kadrun’, causing disturbances, disagreements, and suspicion against a certain group, this new article may not cover it,” he said.
Furthermore, he commended the new regulations’ eagerness to provide more details on previous articles. Unfortunately, the second version of the ITE Law appears to be trapped in liberal principles in some clauses with normative gaps.
Author: Ilma Arrafi Nafi’a
Editor : Khefti Al Mawalia
