Currently the Government through the Minister of Law and Human Rights and the Minister of Communication and Information Technology is preparing a Draft on Amendment to Law No. 11 of 2008 on Electronic Information and Transaction (ITE). The Draft Law is one of the priority Draft Law of the 2015 National Legislation Program, and one of the revision that is proposed by the government is about criminal provision that is related with ITE which are Article 27 (Decency, Gambling, and Defamation) of Law on ITE. Stipulation in Article 27 is re-formulated among other into 5 (five) new articles, namely Article 27 A, Article 27 B, Article 27 C, Article 27 D, and Article 27 E (See Attached Table).
The Institute for Criminal Justice Reform (ICJR) assesses that criminal provision in the Draft Law on ITE are still problematic and it is regrettable that the government policy is still to include those criminal articles into the Draft Law on ITE. Inclusion of those criminal acts should be re-evaluated due to several reasons as follows:
Firstly, those articles in essence already exist in the Indonesia Criminal Code (KUHP) and to include it in the Draft Law on ITE will create a duplication of criminal provision with the current KUHP. In the practice of criminal proceeding, provisions of Indonesia Criminal Code are often used related with Article 27 and 28 of ITE so that these criminal articles are no longer needed in the Draft Law on ITE. Due to this reason, including these articles which are already existed in the Indonesia Criminal Code to the Law on ITE will create over criminalization.
Secondly, formulation of criminal act articles in Law on ITE is too broader and may create multi-interpretation from investigator, prosecutor, and even judges, so that it is easy to be misused. For example related with Article 27 paragraph (3) on defamation in the cyberspace (in the Draft Law on ITE is revised to Article 27 C). This article is the main cause of problem which causes restriction to freedom of speech in Indonesia. This article is a “new model of rubber article” which its character is almost the same with “rubber” articles of the new order era.
Thirdly, from the aspect of government policy to reform the Indonesia Criminal Code, inclusion of these articles is contradicting the government version of Draft Law on Indonesia Criminal Code (R KUHP), which its spirit limits and even prohibits the existence of criminal acts outside the Indonesia Criminal Code (Closed Codification). Such appearance of criminal articles outside the Draft Law on Indonesia Criminal Code clearly shows the government failure to conduct harmonization of criminal articles in the framework of Reformation of Indonesia Criminal Code to the direction of Draft Law on Indonesia Criminal Code.
Due to these reasons, ICJR urges the Government particularly the Minister of Communication and Information to repeal all articles related with Article 27 in the Draft Law on ITE. If it is urgently necessary, inclusion of criminal articles in the Draft Law on ITE must be included and be harmonized in the Draft Law on Indonesia Criminal Code by applying a better formulation standards to provide certainty, public and human rights protection.
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Article of Law on ITE |
Revision in Draft Law on ITE
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| Article 27
1) Any person intentionally and without right distributes and/or transmits and/or causes an electronic information and/or electronic document with contents against decency to be accessible. 2) Any person intentionally and without right distributes and/or transmits and/or causes an electronic information and/or electronic document with gambling contents to be accessible. 3) Any person intentionally and without right distributes and/or transmits and/or causes an electronic information and/or electronic document with defamation and/or slander contents to be accessible 4) Any person intentionally and without right distributes and/or transmits and/or causes an electronic information and/or electronic document with extortion and/or threat contents to be accessible |
Article 27 A
1) Any person intentionally and without right conducts an action that violates decency by using or through an electronic system or intentionally and without right conducts an action that violates decency with other people without their will by using or through an electronic system. 2) Any person intentionally and without right distributes, transmits and/or causes an electronic information and/or electronic document to be accessible which has been known its content violates decency or with intention to distribute, transmit, and/or cause that electronic information and/or electronic document to be accessible, produce, import, forward, export or own electronic information in supply and/or electronic document that violates decency |
| Article 27 B
(1) Any person intentionally and without permission offers or provides opportunity for a gambling game by using or through electronic system and making it as a livelihood; or intentionally and without permission participates in a company for that; or intentionally and without permission participates in a gambling game as a livelihood. (2) Any person intentionally and without permission uses an opportunity to play gamble which is organized in contradiction with stipulation of paragraph (1). |
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| Article 27 C
(1) Any person intentionally and without right assaults the dignity or reputation of a person by accusation of thing, by using or through an electronic system, with intention so that it is publicly known. (2) Any person intentionally and without right distributes, transmits, and/or causes an electronic information and/or electronic document with slander content to be accessible that assaults dignity or reputation of a person by accusation of thing, with intention to be publicly known. |
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| Article 27 D
Any person unlawfully with an intention to benefit himself/herself or other people, with threat of violence through an electronic system forces a person to give something which is entirely or partially belong to that person or other, or to create a loan or to erase a loan. |
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| Pasal 27 E
Any person unlawfully with intention to benefit himself/herself or other people, with threat of defamation or threat to open a secret through an electronic system, forces a person to give something which is entirely or partially belong to that person or other or to create a loan or to erase a loan. |
