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Experts Mustofa Haffas and Sudjana (right to left) for the Petitioner in the judicial review hearing of No. 11 of 2008 concerning Information and Electronic Transactions (ITE) and Law No. 28 of 2014 concerning Copyright, Monday (2/3) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The judicial review hearing of Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE) and Law No. 28 of 2014 concerning Copyright took place on Monday (2/3/2020) at the Constitutional Court (MK). The session heard statements of two experts and one witness for the Petitioner.

Padjajaran University (UNPAD) law lecturer Sudjana stated that Article 25 paragraph (2) letter b of Law No. 32 of 2002 on Broadcast reads, "Subscription broadcasters shall provide at least 10 percent of channel capacity to channel programs from public broadcasters or private broadcasters."

"[It is] mandatory and a forceful provision. If not fulfilled, the broadcasting will be legally flawed and must be declared null and void," Sudjana said before the plenary panel of justices led by Chief Justice Anwar Usman. 

This provision, Sudjana added, actually benefits public and private broadcasters because broadcasts from public and private broadcasters can be channeled through at least 10 percent of channel capacity of subscription broadcasters without having to enter into agreements with subscription broadcasters. 

"The consequence of this provision is that a subscription broadcaster that has an operating license may even be required to distribute at least 10 percent of its channel capacity to channel [programs from] public broadcasters and private broadcasters, so the program legally has the authority to conduct broadcast, including relaying broadcast. This is in accordance with Article 28D of the 1945 Constitution," said Sudjana. 

 Also read: Banned from Transmitting Electronic Information, Broadcasting Company Challenges ITE Law

Not Under ITE Law 

ICT law expert Mustofa Haffas said the ITE Law serves to regulate electronic information and electronic records relating to electronic evidence, as well as regulate the sending and receiving of electronic mails, electronic signatures, electronic systems, and so on.

"The broadcasting sector is not within the scope of the ITE Law, because it is specifically regulated in the Broadcasting Law and its implementing regulations," said Mustofa. 

Therefore, Mustofa added, the regulation in Article 32 paragraph (1) of the ITE Law that reads, "Any person who knowingly and without authority or unlawfully in any manner whatsoever alters, adds, reduces, transmits, tampers with, deletes, moves, hides electronic information and/or electronic records of other persons or of the public " cannot be applied to a subscription broadcasting institution. 

"Under consideration that the activities of the subscription broadcasting institution in general do not use the internet. In addition, subscription broadcasting institutions are subject to broadcasting legislation," said Mustofa. 

In the Petitioner’s case, in which they were charged with a criminal offense related to the ITE Law, according to Mustofa, if law enforcers had understood well the scope of the ITE Law, the case should not have proceeded because what the Petitioner did is not a criminal offense. 

The case No. 78/PUU-XVII/2019 was petitioned by PT Nadira Intermedia Nusantara, who challenges Article 32 paragraph (1) of the ITE Law that reads, "Any person who knowingly and without authority or unlawfully in any manner whatsoever alters, adds, reduces, transmits, tampers with, deletes, moves, hides electronic information and/or electronic records of other persons or of the public." 

Article 25 paragraph (2) letter a of the Copyright Law reads, "The economic rights of Broadcasting Organizations as referred to in Section (1) include the exclusive right to authorize or prohibit others from engaging in: a. Rebroadcasting of a broadcast.…" 

The Petitioner argued that they had been disadvantaged by the enactment of Article 25 paragraph (2) of the Copyright Law because they were deemed having done "re-broadcast." The Petitioner, who exercises the provisions of the Broadcasting Law to distribute at least 10% of the programs of public broadcasters (TVRI) and private broadcasters (private TV-stations that broadcast free to air), was reported by PT MNC SKY VISION to the police for rebroadcasting MNC Group\\'s TV contents. (Nano Tresna Arfana/LA/NRA)

Translated by: Yuniar Widiastuti

Translation uploaded on 3/4/2020

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