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The Chief Justice of the Constitutional Court Anwar Usman read out the decision on the petition for judicial review of Law Number 32 of 2002 concerning Broadcasting, Thursday (14/01) in the Court's Courtroom. Photo by Public Relations / Ifa.

JAKARTA, Public Relations of Constitutional Court - The petition for judicial review of Law Number 32 Year 2002 concerning Broadcasting (Broadcasting Law) submitted by RCTI and iNews was ultimately rejected by the Constitutional Court (MK). "The decision is to judge, rejecting the Petitioners' petition in its entirety," said Chairman of the Plenary Anwar Usman accompanied by other constitutional judges at the ruling hearing pronouncement, Thursday (14/1/2021).

In its consideration, the Court concludes that simply including internet-based broadcasting in the definition of broadcasting as argued by the Petitioners without the need to amend the Broadcasting Law in its entirety, will in fact create the issue of legal uncertainty.

“Moreover, OTT services (internet-based broadcasting services) in principle have different services from conventional broadcasting operations. This means that broadcasting and OTT services cannot be equated by simply adding to the definition or definition of broadcasting with new phrases as requested by the Petitioners. Because the internet is not a medium or transmission in the sense of broadcasting broadcasts, because the basic communication system consists of a transmitter or transmitter, media or channel, and receiver, ”said Constitutional Justice Arief Hidayat who read out the legal reasons.

Meanwhile, if linked to other media phrases, what is meant by Article 1 point 2 of the Broadcasting Law is terrestrial air, cable, and satellite media. This is clearly stated in the broadcasting operation by the Subscription Broadcasting Institution (LPB).

The Court emphasized that the determination of the aspect of law enforcement for violations of OTT service content in the ITE Law, Law 36/1999 and various sectoral laws both with the imposition of administrative sanctions and criminal sanctions, the enactment of the Circular Letter of Minister of Communication and Information No. 3 of 2016, the substance of which regulates the prohibition as argued by the Petitioners is that it cannot be justified because the imposition of sanctions as part of human rights restrictions must be regulated in law as a manifestation of the people's will.

If the circular letter aims to provide understanding to OTT service providers and telecommunication operators to prepare themselves to comply with the regulations on the provision of application services and/or content via the internet (OTT) which is currently being prepared by the Ministry of Communication and Information, then for such purposes and purposes the substance should be stated in the implementing regulations of the law. Or, if the legislators want to comprehensively regulate the substance of conventional broadcasting and OTT services including the current developments in law, then this is a law-forming policy which is very possible considering that currently the Broadcasting Law has been included in the list of National Legislation Programs (Prolegnas) 2020-2024.

"However, with regard to the a quo circular letter questioned by the Petitioners, it is not within the domain of the Court's authority to evaluate it. Thus, the Petitioners' argument which states that there is no preventive action against illegal content services because it is not regulated in Law no. 32 of 2002 so that asking the Court to change the definition of broadcasting so that illegal content of OTT services can be subject to preventive action, is a groundless argument. Therefore, there is no problem of the constitutionality of the norm of Article 1 point 2 of Law no. 32 of 2002 as long as it relates to the Petitioners' argument. Thus, the a quo Petitioners' argument is groundless according to law, "said Constitutional Justice Enny Nurbaningsih reading the Court's opinion.

The Petitioners of Number 39 / PUU-XVIII / 2020 are PT Visi Citra Mitra Mulia (Inews TV) represented by David Fernando Audy as President Director and Rafael Utomo as Director while PT Rajawali Citra Televisi Indonesia (RCTI) represented by Jarod Suwahjo and Dini Aryanti Putri as Directors (Petitioner II). The Petitioners conduct a material review of Article 1 point 2 of the Broadcasting Law, "Broadcasting is the activity of broadcasting broadcasts by means of broadcasting and/or means of transmission on land, at sea or in space using the radio frequency spectrum by air, cable, and/or other media for can be received simultaneously and simultaneously by the public with the broadcast receiving device. "

The Petitioners argue that the provisions of Article 1 point 2 of the Broadcasting Law have caused constitutional losses for the Petitioners because it caused unequal treatment between the Petitioners as conventional broadcasting operators using radio frequency spectrum and broadcasting operators using the internet such as OTT services in carrying out broadcasting activities.

According to the Petitioners, the absence of legal certainty for broadcasting using the internet such as OTT a quo services is included in the definition of broadcasting as stipulated in Article 1 number 2 of the Broadcasting Law or not, causing broadcasting using the internet such as OTT services to not be bound by Broadcasting Act. Because broadcasting operators using the internet are not bound by the Broadcasting Law, even though the a quo Law is the rule of the game for broadcasting in Indonesia, according to the Petitioners, this has implications for various kinds of different treatment.

As a rule of the game broadcasting operations, the a quo Law regulates at least six things as follows: (i) the principles, objectives, functions and direction of broadcasting in Indonesia; (ii) broadcasting operations requirements; (iii) licensing for broadcasting operations; (iv) guidelines regarding broadcast content and language; (v) broadcast code of conduct; and no less important is (vi) supervision of broadcasting operations. (*)

Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari
PR : Andhini SF
Translator: SO (NL)

Translation uploaded on 15/1/2021 09.50 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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