Blog: Internet freedom in Indonesia is teetering on a razor’s edge

Blog: Internet freedom in Indonesia is teetering on a razor’s edge - Digital

Written by Michael Caster, Asia Digital Programme Manager at ARTICLE 19.

This article was originally published on the Diplomat.

The looming implementation deadline of online platform regulations will exacerbate existing freedom of expression challenges and lead to more severe restrictions on internet freedom.

Late last month, Indonesia’s Ministry of Communication and Information Technology (KOMINFO) announced a sudden July 20 deadline for online actors to register with the ministry or face consequences. This includes social media companies, search engines, messaging services, mobile applications, and nearly any other online service or application.

This week, as the deadline approaches, Indonesia is poised to bring about one of the most repressive internet governance regimes in the world. Should Indonesia proceed, it could inspire a cascade of further repressive laws and policies in the region.

The registration order from KOMINFO is a step toward implementing Ministerial Regulation 5 (2020) and its amendment Ministerial Regulation 10 (2021). They impose content moderation rules severely at odds with internationally recognized human rights norms on the freedom of expression and access to information online, as outlined in a detailed analysis ARTICLE 19 conducted last year.

Regulation 5 establishes that “private electronic service operators” (ESOs) must register with the ministry. This includes foreign companies or individuals servicing online users in Indonesia. Failure to register risks subjecting websites and online services to geo-blocking, an impediment to the expression and information rights of the people of Indonesia.

As part of the registration process, private ESOs must designate at least one “contact person” in Indonesia who will liaise with the ministry and other government institutions. Requirements to designate local contact persons raise the risk of pressure or arbitrary reprisal for failures to comply.

International human rights law holds that registration requirements are an interference with the right to freedom of expression, and so are only acceptable if they are necessary and proportionate and in pursuit of a legitimate aim. Heavy-handed and overbroad requirements as laid out in Indonesia do not meet this standard.

The registration requirement is just the tip of the iceberg of the threat to internet freedom introduced by these regulations.

In a blow to the right to privacy, digital operators are also required to provide KOMINFO with, among other things, a guarantee that law enforcement will be able to access their electronic systems and data. It is the responsibility of the local contact person to provide access or face penalties.

The ministry or law enforcement may demand data access for “oversight” without requiring a court order. A court order is only required to access private ESO electronic systems if law enforcement is investigating certain crimes or seeking access to communication content or specific personal data.

Nearly blanket obligations to provide access to user data are inconsistent with international standards on the right to privacy and freedom of expression, which at a minimum hold that access to user data should only be granted subject to a court order and only on a case-by-case basis.

Failure to grant access to electronic data may result in termination and blocking of service.

In addition to intruding on the right to privacy, Indonesia’s content moderation regulations raise real censorship concerns. Private electronic service operators are required to comply with “urgent” take down requests within four hours. These are defined as content involving terrorism, child sexual abuse images, or anything “that disturbs the community or public order,” which is so vague and broad as to mean anything the authorities choose. All other content removal orders shall be acted on within 24 hours.

These extremely short content removal timelines make it nearly impossible to carefully review takedown orders or meaningfully push back, which, coupled with financial penalties for failure to act on content removal, drastically increases the chances of expression being arbitrarily restricted.

Admittedly, terrorism or other content inciting or glorifying violent extremism, hate speech, or child sexual abuse imagery exist online, but this is not the way to combat it. Rather, as ARTICLE 19 argues in a recent report on content moderation in Indonesia, a coalition between civil society organizations, individual users, platforms, and others could go a long way in content moderation that adheres to international human rights norms rather than the heavy-handed regulatory approach being rolled out through these regulations.

Following registration, private ESOs will not only be required to act on restrictive notice and takedown orders but will have a strong incentive to proactively monitor and filter content. This, too, is a step beyond the content regulation permitted under international human rights norms. For example, the Manila Principles on Intermediary Liability hold that internet intermediaries should not be required to proactively monitor content, and the United Nations Special Rapporteur on freedom of expression holds that failure to protect intermediary liability “creates a strong incentive to censor.”

At the heart of Indonesia’s restrictive content regulations is the idea of governing “prohibited content.”

Prohibited content is defined as anything that violates Indonesian law or “disturbs the community and public” or “informs others how to access or provide access to” prohibited content. The government claims sole authority in determining what constitutes a disturbance to community and public order, leaving implementation open to political abuse.

This definition of prohibited content is extremely vague and overbroad, and risks silencing expression that is protected under international human rights law. Without clear definitions of prohibited content, no digital actor can reasonably regulate their conduct in line with the law.

It is furthermore alarming that prohibited content includes information on how to access or provide information vaguely listed by the authorities as, for example, disturbing the public. While this could include expression regarding sexual, religious, or ethnic minorities, or information about Papua and West Papua, areas where access to information is tightly controlled, there is a further risk posed by such provisions. Requiring digital actors to prevent content that “informs others how to access or provide access” to otherwise prohibited content may also lead to a ban on access to circumvention tools, like VPNs.

While the registration deadline set for this week is problematic on its own and should not be enforced, it is just the tip of the iceberg.

Freedom of expression in Indonesia is already ranked as restricted, according to ARTICLE 19’s Global Expression Report 2022. It has been steadily decreasing over the last five years. The implementation of these internet regulations risks plunging Indonesia into a free expression crisis.

This week, the Ministry of Communication and Information Technology should reverse course, repeal these repressive measures, and return to the drawing board in drafting internet governance policies that comply with international human rights law.