Constitutional Justice Wahiduddin Adams reading out the Court’s legal considerations at the ruling hearing of the judicial review of Law No. 19 of 2016 on Electronic Information and Transactions, Wednesday (7/20/2022). Photo by Humas MK/Ifa.
Wednesday, July 20, 2022 | 15:56 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire material judicial review petition 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 Wednesday, July 20, 2022. The petition was filed by 29 content creators including Eriko Fahri Ginting, Leon Maulana Mirza Pasha, Aryadi Kristanto Simanjuntak, and Faransiska Naomi Sitanggang. “[The Court] rejects the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman reading out the Decision No. 36/PUU-XX/2022.
Constitutional Justice Wahiduddin Adams, who read out the Court’s legal considerations, said the Petitioners had questioned the ambiguity of Article 27 paragraph (3) of the EIT Law, which they believed did not provide legal protection of their right to express opinions. They also believed the enactment of the norm was not in line with the Constitutional Court Decision No. 50/PUU-VI/2008. In their alternative petitum, they requested that the Court declare Article 27 paragraph (3) of the EIT Law unconstitutional.
The Court, Justice Wahiduddin asserted, upheld its Decision No. 50/PUU-VI/2008, where it stressed that Article 27 paragraph (3) of the EIT Law is an emphasis on the legal norm on defamation in the Criminal Code (KUHP) in a new legal norm to keep up with cyber developments. The KUHP has not regulated online defamation and insult because of the element ‘in public.’ Therefore, he added, the article’s enactment is not separate from the norm on defamation in Articles 310 and 311 of the KUHP, which the Court considered in Decision No. 50/PUU-VI/2008, where it held that it was legally inaccurate to allege that the a quo article was ambiguous, overlapping, and leading to legal uncertainty.
Also read: Content Creators Challenge Provision on Defamation in EIT Law
Joint Decree of 3 Ministers
The Government had followed up on the Court’s decision by issuing the Joint Decree of the Minister of Communication and Informatics, the Attorney General, and the National Police Chief of the Republic of Indonesia No. 229 of 2021, No. 154 of 2021, and No. KB/2/VI/2021 on the Guidelines for the Implementation of Certain Articles in 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 on Electronic Information and Transactions. The joint decree contains guidelines for the implementation of certain articles of the EIT Law, including Article 27 paragraphs (1), (2), and (3); Article 28 paragraphs (1) and (2); and Article 36 of the EIT Law.
“Without any intention to judge the legality of the joint decree, the joint decree is intended so that in the implementation of certain articles of the ITE Law will no longer cause multiple interpretations and controversy in the community. Therefore, implementation guidelines were prepared for law enforcement officers to carry out their duties and authorities,” Justice Wahiduddin explained.
He added that it was expected that law enforcement officers would implement the guidelines cautiously but not repressively, so that it could be accounted for pursuant to the joint decree, especially in relation to the contented Article 27 paragraph (3) of the EIT Law.
“Therefore, as there was no constitutionality issue, the Petitioners’ petition that the legal considerations of the Constitutional Court Decision No. 50/PUU-VI/2008 be ruled was legally groundless. Meanwhile, the Petitioners’ petitum for the revision of the EIT Law was not within the Court’s jurisdiction, but the legislators’,” he stressed.
Also read: Content Creators Strengthen Legal Standing in Petition on Defamation in EIT Law
At the preliminary hearing, the Petitioners—all content creators who actively express their opinions on webinars and publications in the field of law—argued that they felt threatened in expressing their thoughts and attitudes that are in accordance with their conscience. They believed 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 was done by broadcasting, showing, and/or pasting, the reference would be 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 did not have clear definition, characteristics, or parameter for it.
They 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. 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.
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Raisa Ayuditha
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/22/2022 08:47 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.
Wednesday, July 20, 2022 | 15:56 WIB 290