Constitutional Justice Enny Nurbaningsih chairing the panel bench at the judicial review hearing of the Law on Electronic Information and Transactions, Thursday (4/7/2022). Photo by Humas MK/Ifa.

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Thursday, April 7, 2022 | 13:54 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 11 of 2008 on Electronic Information and Transactions as amended by Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 (EIT Law) on Thursday, April 7, 2022 in the panel courtroom. The petition No. 36/PUU-XX/2022 was filed by 29 content creators including Eriko Fahri Ginting, Leon Maulana Mirza Pasha, Aryadi Kristanto Simanjuntak, and Faransiska Naomi Sitanggang. They argued that Article 27 paragraph (3) and the Elucidation to Article 27 paragraph (3) and Article 28 paragraph (2) of the EIT Law was unconstitutional.

Article 27 paragraph (3) reads, “No person shall intentionally and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Records with contents of affronts and/or defamation.”

The Elucidation to Article 27 paragraph (3) reads, “The provision of this article shall refer to the provisions for defamation and/or slander as governed by the Criminal Code.”

Article 28 paragraph (2) reads, “No Person shall intentionally and without authority disseminates information with intent to incite hatred or dissension on individuals and/or certain groups of community based on ethnic groups, religions, races, and intergroups (SARA).”

The Petitioners argued that the a quo articles did not have standard and clear benchmarks regarding the word “defamation” and the phrase “to incite hatred or dissension” in social media. As content creators who actively express their opinions on webinars and publications in the field of law, the Petitioners feel threatened in expressing their thoughts and attitudes that are in accordance with their conscience. They believe this element of defamation has been regulated in Article 310 paragraph (1) of the Criminal Code (KUHP), which stipulates that the element of affront or defamation is only spoken orally. However, if it is done by broadcasting, showing, and/or pasting, the reference is Article 310 paragraph (2) of the Criminal Code. Thus, when done in social media, the Petitioners argued, both the EIT Law and the Criminal Code do not have clear definition, characteristics, or parameter for it.

The Petitioners also argued that the phrases “without authority,” “distributes,” “transmits,” and “causes to be accessible” in the catchall articles are multi-interpretive and potentially violate the Petitioners’ freedom of opinion.

“Therefore, the a quo article have legally violated the original intent of the EIT Law in relation to guarantee of legal certainty and justice by prioritizing the principle of legality because it tends to over-criminalize people who are not guilty or do not deserve to be punished by a legal basis that has multiple interpretations,” said Dixon Sanjaya, who took turns reading out the background of the petition virtually with the other counsels and the Petitioners—Sandra Nabila, Muhammad Adirin, Nukhabah Salsabila, Sultan Fadillah Effendi, Andi Redani Suryanata, Benaya Marcel Devara Tak, and Elizza Rizky Mauri.

Thus, in the petitum, the Petitioners requested that the Court declare Article 27 paragraph (3) and the Elucidation to Article 27 paragraph (3) and Article 28 paragraph (2) of the EIT Law unconstitutional and not legally binding.

Unusual Petitum

Constitutional Justice Wahiduddin Adams offered several notes on the petition, one being that the object of the petition must be adjusted to the Law that has been amended. Next, he reminded the Petitioners to elaborate their legal standing relating to their identity as content creators as, based on their resident identity cards (KTP), they are university students and private employees. He added that they should observe the petitum, which contained 13 models of request to the Court and also alternative requests, which are unusual.

“Write only one option in the petitum that you intend because the alternative can be conveyed at the evidentiary hearings, which would be the justices’ consideration,” he added.

Next, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners to ensure that the power of attorney be signed by all of the Petitioners, some of whom reside out of Jakarta. This is to avoid any criminal sanction due to false signatures. He also reminded them to submit accurate information according to latest news on the court decisions mentioned in the petition, so that hopefully that only accurate information regarding the case is accessible to the public.

Meanwhile, Constitutional Justice Enny Nurbaningsih advised that the petition be made brief so it would be more comprehensible. She expected that the Petitioners’ constitutional impairment be elaborated and proven and that they not only provide their KTP.

“The Petitioners I-XXIX are content creators. What can prove that they are really content creators? In the petition they argued constitutional impairment due to the enactment of the reviewed articles. They cannot only provide their KTP, as their constitutionality as the harmed parties and their legal standing must be strengthened,” she said.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 4/8/2022 10:59 WIB

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

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