Case Summary and Outcome

On June 3, 2020, the Jakarta State Administrative Court held that the actions taken by the government of shutting down the internet network in West Papua and Papua province were unlawful and ordered the government to pay to the Plaintiffs the amount Rp. 457,000 (Four Hundred Fifty Seven Thousand rupiah) or $30.59 USD approx. The plaintiffs which included organizations advocating for press freedom, digital rights, the right to information and the welfare of the journalists sued the Minister of Communications and Informatics and the President of the Republic of Indonesia for throttling access to the internet in some areas of West Papua province and Papua province on August 19, 2019. The defendants invoked the spread of hoaxes, transmission of false news, racist speech and incitement as the reasons for throttling access to the internet. While recognizing the right to access internet as a fundamental right under the ambit of freedom of expression, the court observed that the restrictions on the freedom of expression must fulfill three conditions: first, restrictions must fulfill one of the following objectives: right to reputation, morality, religious values, security, decency, public order, or public health; second; restrictions must be prescribed by law; third, restrictions must be proportional. The court agreed that the internet was shut down under “security and public order considerations” however the governmental action was not prescribed by law and therefore did not satisfy the second criterion, as the government’s power did not extend to the termination of access to internet network at large but could be used only to terminate access to electronic information/documents that had unlawful content.

Facts

Alliance of Independent Journalists (AJI), a non-governmental organization advocating for press freedom, the right to information and the welfare of the journalists, and Defenders of Freedom of Expression Southeast Asia (SAFEnet), an association focused on digital rights, are the plaintiffs who filed this petition against the Minister of Communications and Informatics (defendant I) and the President of the Republic of Indonesia (defendant II) for throttling access to the internet in some areas of West Papua province and Papua province on August 19, 2019 [p. 18]. From August 21, 2019, to September 4, 2019, internet access was completely shut down in 29 cities/regencies in Papua province and 13 in West Papua province [p. 19].

The plaintiffs argued that the actions of the defendants violated articles 28J (on the duty for every person to respect the human rights of others) and 73 (regulates restrictions and prohibitions to be limited by law) of the 1945 Constitution of Indonesia, the Law No. 40 of 1999 (guarantees freedom of the press), Article 19 Paragraph 3 (right to information) of the Law No. 12 of 2005 on the Ratification of the International Covenant on Civil and Political Rights, and article 1 Point 1 (right to freedom of association and expression) of the Law No. 9 of 1998 concerning Independence to State Public Opinion and various other emergency related provisions [para 36-38]. The Minister of Communications and Informatics invoked the spread of hoaxes, restoration of security, transmission of false news, racist speech and incitement as the reasons for throttling access to the internet through Press Release No. 154/HM/KOMINFO/08/2019 [p. 20]. 

Decision Overview

Justice Nelvy Christin (Chairperson of the Panel of Judges), Justice Baiq Yuliani and Justice Indah Mayasari presided over this case. The central issues for consideration were whether the following government actions violated the statutory provisions of Indonesian law: first, throttling or slowing down access/bandwidth in several areas of West Papua and Papua on August 19, 2019, second, completely blocking data services in 29 cities in Papua and 13 cities in West Papua from August 21, 2019 to September 4, 2019, third, extending disconnection of internet data services in 4 cities of Papua and 2 cities of Wet Papua till September 9, 2019.

The plaintiffs essentially argued that the internet shutdown was contrary to various laws and general principles of good governance, and that lack of or restricted internet access made it difficult for journalists to do their work, to gather news, contact sources to confirm news, download news to online media, and spread the news through digital media, posing challenges to press freedom. In addition to affecting freedom of press, the plaintiffs claimed that this also impacted the people’s right to information and economic activity [p. 244]. 

The defendants refuted these arguments by stating that the rights to press freedom and to obtain and disseminate information were limited by statutory regulations as mentioned in the 1945 Constitution of the Republic of Indonesia which could be imposed by the government in matters of public order and state security [p. 244]. The government further contended that the internet was terminated to “prevent the spread of hoaxes and expressions of hatred or racist hostility that has the potential to cause unrest, divide the unity and threaten the security of the state, especially in Papua and West Papua provinces”. 

After hearing arguments from both sides, the Court discussed the relevant legal principles which included article 28F of the Indonesian Constitution (right to communicate and obtain information and the right to seek, obtain, possess, store, process, and submit information using all types of available channels), article 14 of Law Number 39 of 1999 concerning Human Rights (right to communicate and obtain information and to seek, obtain, possess, store, process, and convey information by using all types of facilities available) and Article 19 of the International Covenant on Civil and Political Rights, and opined that the use of phrases such as “all types of available channels”, “all types of means available” and “through other media of his choice” indicated that “the right to seek, obtain and convey information can be done through all types of channels/facilities/media available including through the internet” [p. 246]. The Court also made an important observation regarding the right to access the internet by stating that “internet has been used not only as a vehicle to channel the right to express opinions and the right to seek, obtain and convey information, but also to be used as media to realize the broad freedom of expression which enables many other human rights to be carried out, including the right to education and teaching, the right to benefit from science and technology, arts and culture, the right to work, political rights, the right to associate and assemble, and the right to health services” [p. 246].

After recognising the right to access the internet as a means of freedom of expression, the court referred to the 1945 Indonesian constitution, national laws and international treaties namely the International Covenant on Civil and Political Rights and the United Nations Human Rights Committee General Comment No. 34 to decide whether the restrictions laid down by the government on the right to access internet services, the freedom of expression and the right to seek information and other rights used through the internet were in conformity with the existing human rights framework [p. 248]. The court noted that restrictions on the freedom of expression must fulfill three conditions: first, restrictions must aim to protect one of the following objectives: right to reputation, morality, religious values, security, decency, public order, or public health; second; restrictions must be based in law; third, restrictions must be proportional [p. 249]. 

To justify that the first condition was fulfilled, the defendants submitted documentary evidence and press releases to show increased commotion between members of the Papuan Student Alliance (AMP), who demanded Free Papua, and security forces along with a siege, exchange of heated racist slurs in Papuan Student Dormitory in Surabaya and the spread of disinformation such as of Papuan students killing Surabaya police officials [p. 250]. The court agreed with the defendants that the internet shutdown was carried to “control the spread of hoax news, incitement, hate speech in terms of ethnicity, religious, race and intergroup relations” which could cause unrest, divide unity and threaten state security in the Papua and West Papua provinces, and therefore met the requirement of protection of “security and public order considerations” [p. 251]. 

To fulfill the second criterion, the defendants relied on the Article 40 paragraph (2), (2a) and (2b) of the Electronic Information and Transaction Law of 2016, and contended that, first, the government had an obligation to protect public interest from the misuse of the electronic information, second it had an obligation to prevent the dissemination of the prohibited content and third, it had the authority to terminate access and/or order the electronic system operator to terminate access to electronic information that had unlawful contents [p. 239]. Herein, the plaintiff highlighted that the defendants had the authority to terminate access or order the Electronic System Operator to terminate access to the information/documents that had “unlawful contents” and not the termination of the whole internet services [p. 253]. The government argued that their authority to terminate access extended not only to unlawful content but to the whole internet network [p. 255]. 

The court referred to the “general explanation” of the aforementioned law, which stated that “in order to protect the public interest from all types of disturbances as a result of misuse of Electronic Information and Transactions, it is necessary to affirm the Government’s role in preventing the dissemination of illegal content by taking action to cut off access to Electronic Information and/or Electronic Documents that have unlawful content”, the court concluded that this power did not extend to the termination of access to internet network at large [p. 255] but could be used only to terminate access to electronic information/documents that had unlawful content [p. 257]. The court also stated that the spread of hoaxes and hate speech in terms of ethnicity, religion, race and intergroup relations could be dealt with by the government by taking criminal action against parties who disseminated such information and by taking down the information that had unlawful content but not by slowing down or terminating the internet network [p. 259 and 260]. 

The court opined that restrictions on internet access mentioned in the Electronic Information and Transaction Law were in line with the principles of criminal law, “namely no crime without guilt”, and that criminalization is only carried out against those who abuse the internet and therefore, only the perpetrators’ right to internet access should be restricted by terminating their access to Electronic Information and/or Electronic Documents that have unlawful content. Further, the court remarked that the law did not allow termination of access to the internet network that impacted the rights of other parties who were not the perpetrator [p. 266]. Therefore, the court found that the rights of those parties who were not “perpetrators of internet abuse” were violated. 

The court also considered whether the internet services could be blocked during the State of Emergency [p. 266]. According to the Panel of Judges, the scope of the governmental authority included the authority to terminate internet access under articles 13 and 17 of the Government Regulations in Lieu of Law Number 23 Year 1959 concerning the State of Emergency. However, in the present case, the defendants did not submit evidence that showed the declaration of the State of Emergency in Papua and West Papua during the month of August [p. 267]. 

The court finally remarked that “freedom of expression and information, including freedom of the press by using any means deemed appropriate to express opinions and information so as to reach as many people as possible, is a fundamental human right which is the basis of other rights and freedoms in a democratic society because it enables people to fulfill all their rights and potential for self-development, convey and reveal the truth, and actively participate in the administration of government in order to realize transparent, accountable, responsive, effective and efficient governance (good governance)” [p. 271]. The court also opined that in the case of internet abuse through unlawful content distribution, an appropriate and proportional action would be if the restriction on the right to access the internet is only aimed at the perpetrators […] because if it is carried out in its entirety through the termination of the internet network, it will have a greater negative impact in the form of derogating other human rights that can be positively realized through the internet. Therefore, like other human rights, the right to internet access can only be derogated through termination of the internet network if in a state of emergency in accordance with applicable law” [p. 274].

The judges finally concluded that the actions taken by the government of throttling the internet in West Papua and Papua province were unlawful and ordered the government to pay Rp. 457,000 (Four Hundred Fifty Seven Thousand rupiah) or $30.59 approx. [p. 279].