As the Indonesian Government continues to crack down on political disinformation, it is essential that safeguards are put in place to ensure that the Government does not abuse its anti-hoax powers.
Political disinformation has contributed to democratic backsliding across the world. From America to Brazil to Hungary, the GDI has described disinformation as a ‘global problem not contained by borders’. Since Joko Widodo (“Jokowi’) won the 2012 Jakarta gubernatorial election supported by a highly active social media campaign, disinformation has played an increasingly large role in Indonesian politics. It is well documented that so-called ‘buzzers’ – paid teams of social media campaigners – have become integral to political campaigning, and are used to spread disinformation by incumbents and opposition alike.
In many jurisdictions, authorities have responded to the rise of disinformation by introducing mechanisms that allow authorities to take down harmful content. In some cases, this power can be exercised unilaterally by the government, elsewhere it requires a court order. Examples of these mechanisms can be found in France and Germany.
Indonesia’s Government already has similar powers derived from 3 sources: the Information and Electronic Transactions (ITE) Law, the Minister of Communication and Information Regulation Number 5 of 2020, and Law 1 of 1946 concerning Criminal Law Regulations (soon to be replaced by even stronger provisions in the Criminal Code passed on December 6). The Government can block access to online content deemed negative, and even prosecute individuals for violations such as defamation or extortion. These powers have already been used under the pretext of suppressing disinformation and will be relied on by authorities in the lead up to the 2024 Election.
At first glance, these content removal mechanisms are appealing. They are immediate, tangible and direct responses to political disinformation. However, these mechanisms are also dangerous. Civil society organisations across the world have been warning that measures like these are being manipulated by political leaders to censor activists and critics. As early as 2017, the United Nations’ Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda warned that ‘prohibitions on disinformation may violate international human rights standards’ by impeding free speech.
Indeed, there have been frequent alleged abuses of these powers here in Indonesia. Activists such as Dandy Laksono, Veronica Koman and Ravio Patra have been arrested under dubious claims of disinformation, as have ordinary citizens like SB and AC.
These somewhat dystopian arrests emphasise the need for safeguards to ensure that anti-disinformation laws are a force for good. Here are three measures that should be considered.
DECRIMINALISATION
Criminal punishments for disinformation offences should be strictly opposed. As detailed above, criminal offences introduce a risk of severe human rights abuses by authorities. There are several alternative approaches to punishing spreaders of disinformation. These include taking down the offending post, demonetising the account that shared it, and banning the user from accessing the social media platform altogether. Each of these could still be abused by Government authorities, but the worst-case scenario (banned from social media platforms) is less of an affront to human rights than criminal prosecution. Some may argue that criminalisation of disinformation is an important deterrence, and that the Government’s response to disinformation will be weaker without the threat of criminal prosecution. The deterrence does not seem to be particularly effective, however, given how pervasive disinformation already is. Even if criminalisation provides a deterrence, though, the risk of human rights abuses is too great to permit the ongoing criminalisation of disinformation.
REVIEW MECHANISM
Even if criminal prosecution is excluded from the anti-disinformation powers of the Government, authoritarian censorship of criticism is still possible. A procedural safeguard must therefore be implemented to ensure that a piece of removed content is indeed disinformation, as opposed to legitimate speech. Ideally, this safeguard would require any decision to be reviewed by a court. This is the case under France’s laws passed in 2018, which permit the immediate removal of content deemed disinformation but only once the removal has been approved by a court.
Alternatively, decisions could be reviewed by Bawaslu as part of its role in supervising election-related decisions by Government authorities. However, the fact that prospective Bawaslu members require presidential nomination and DPR approval might increase the risk of perceived or actual partisan influence.
A transparency measure could also decrease the risk that legitimate content is removed. An active list of content that has been removed or is under review would empower civil society, media and the public to monitor the legitimacy of disinformation removal decisions (as the Alliance of Independent Journalists already attempts to do). Transparency is only a half-measure, though, a firm review safeguard is an essential component of a fair disinformation removal mechanism.
PUBLIC ACTIVATION
Those first two layers of safeguards are insufficient on their own. Even if a court order or Bawaslu review is required, it is likely that the Government will only seek to take down anti-Government disinformation, leaving pro-Government disinformation immune. Therefore, the third step towards fair anti-disinformation laws is that they must be open to public activation. If activists, civil society organisations and citizens are equally empowered to activate the laws, then there is a decreased risk that only anti-Government disinformation will be targeted. This third safeguard requires a simple and accessible content review process, so that organisations or citizens can feasibly initiate proceedings without excessive cost or time delays. Put simply, anyone should be able to use the content removal mechanisms discussed above, not just the Government. Returning to the French anti-disinformation laws, it is encouraging that any individual or group is empowered to initiate the court process to remove disinformation including, for example, opposition parties.
CONCLUSION
The Indonesian Government will almost certainly escalate its fight against disinformation ahead of the 2024 elections. Strong anti-disinformation laws can be beneficial but only if executed legitimately and fairly. As discussed above, three safeguards should be considered to achieve that goal: 1) decriminalisation of disinformation, 2) introduction of a review mechanism, and 3) enabling public activation. It is unlikely that the Government willingly introduces checks on its digital powers, so it is essential that journalists, activists, civil society organisations and citizens make safeguarding free speech a high priority ahead of 2024. Without these safeguards in place, it is likely that anti-disinformation laws will advance the Government’s ‘narasi tunggal’ (single narrative) and increase the risk of digital authoritarianism in Indonesia. []
OSCAR PEARCE
