---

Expert for the relevant party RCTI, Henry Soelistyo Budi, delivering a statement in the judicial review hearing of the Information and Electronic Transactions (ITE) Law, Tuesday (30/6) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The restrictions set forth in the provision of Article 32 paragraph (1) of Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE) have economic and moral dimensions. The economic dimension is that the law prohibits anyone from intentionally or without the right violating the law by transmitting electronic information for commercial purposes.

"The moral dimension underlies the obligation of broadcasting institutions to, among other things, mention the identity of the broadcast rights of a [content] as regulated in the Broadcasting Law," said Henry Soelistyo Budi, an expert presented by RCTI (Relevant Party) in the judicial review of the ITE Law on Tuesday afternoon (30/6/2020). 

 Also read:

Banned from Transmitting Electronic Information, Broadcasting Company Challenges ITE Law 

Expert: Broadcasting Institutions Obligated to Include Broadcasting Rights

Henry said that several provisions in the ITE Law substantively regulate illegal access, illegal wiretap, data disruption, system disruption, misuse of equipment, and computer-related counterfeiting. These are regulated in Article 30-35 of the ITE Law, respectively. Data disturbance is regulated by Article 32 paragraph 1 of the ITE Law as altering, adding, reducing, transmitting, tampering with, deleting, moving, hiding electronic information and/or electronic records of other persons or of the public. Such actions, if intentional, without rights, or against the law, are categorized as criminal acts. 

"Referring to the reality of the problem, there are three things to note. First, in the current digital era, broadcasting institutions rely on the support of information and communication technology, including network infrastructure and information technology-based broadcasting connection systems. At this point, the link between the ITE Law and broadcasting activities can be clearly seen. The actions of the Petitioner, who have accessed and taken free-to-air broadcast content without permission and then transmit it for commercial broadcast activities, must be considered as an act of deprivation of rights prohibited by the ITE Law," Henry said before the justices led by Chief Justice Anwar Usman. 

Second, Henry added, is that subscription broadcasting institutions’ (LPB) transmission of free-to-air broadcast content from other broadcasting institutions is subject to Law No. 32 of 2012 on Broadcasting. Third, the Broadcasting Law binds LPBs in carrying out legal obligations, broadcasting broadcast material, as mandated in applicable laws and regulations, in this case the ITE Law and the Copyright Law.

Issued by Government Officials 

Zainal Muttaqin, an expert presented by PT Sriwijaya Media Partners and PT Indonesia Cable Television Association (ICTA), explained about broadcasting license. "Licenses are issued by government officials who are authorized by statutory regulations. This also shows that the license is in the domain of public law because [it] is the authority of officials," he explained.

Zainal added that broadcasting institutions are legal subjects who are given permission to carry out broadcasting activities. "They are not agencies or officials who are authorized to grant license, because the license is the authority of officials. The legal relationship between broadcasters and other parties is a civil legal relationship that will bring forth an agreement whose validity is based on Article 1320 of the Civil Code," said Zainal. 

Zainal stressed that permits will be issued through procedures with requirements in accordance with the laws and regulations that are the legal bases. Depending on [what] must be protected due to the activities or actions given by the license," he said. 

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."  

They also challenge Article 25 paragraph (2) letter a of the Copyright Law that 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/Halim/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 6/30/2020

---