First published in The Jakarta Post (30/7/21).
The Ministry of Communication and Informatics’ attempts to regulate content moderation of private electronic system organizers (ESOs) — including user-generated content platforms like social media, digital marketplace, blog, etc. — without sufficient due process would concentrate power over internet governance in the hands of the government, putting Indonesia’s freedom of speech at risk.
In November 2020, the Ministry of Communication and Informatics (MOCI) issued Ministerial Regulation No.5/2020 on Private ESOs as an implementing regulation for Government Regulation No.71/2019 on the Implementation of Electronic Systems and Transaction. The regulation required all private ESOs to register to MOCI and comply by May 24, 2021 with the provision that granted government access to their system and data. Failure to comply will see them blocked.
Private ESOs were required to ensure that as an intermediary, their platform did not contain nor facilitated the spread of “prohibited content”. It obliged the private ESOs to proactively filter user-generated content posted in their platform based on government’s regulation, even if they already had their own community guideline.
The regulation certainly gave the government more control over the platforms. However, this aspect seemed to have been overlooked by the Indonesian media and citizens as it did not attract any public discourse until a couple of weeks prior to the registration deadline.
But around the first quarter of 2021, MOCI Regulation No.5/2020 came under international spotlight as human rights institutions such as Human Rights Watch and Electronic Frontier Foundation, called on the government to suspend the implementation of such a “repressive” regulation. They argued that it violated international standards for freedom of expression and might pose a greater risk for Indonesian citizens in the long run.
Just a few days before the deadline, MOCI amended its regulation on Private ESOs through MOCI Regulation No.10/2021. It extended the registration deadline to six months after the implementation of Risk-Based Business Licensing of Online Single Submission managed by the Ministry of Investment (MOI). This licensing began its trial implementation on the 2nd June 2021 according to MOI Circular Letter No.14/2021. This automatically pushed the implementation of MOCI Regulation No.5/2020 to the end of this year.
Indonesia’s Content Moderation Landscape
Statistics Indonesia’s data showed that social media was the reason to access the internet for 87% of Indonesian internet users. As of January 2021, roughly half of the country’s total population, or about 170 million people, were social media users (We Are Social & Hootsuite, 2021).
The high number of social media users also came with a high amount of content types posted online. They varied greatly and carried different consequences. While user-generated content could generate benefits such as being educational, entertaining, and informative, internet users could also be exposed to hateful, violent, abusive, and even obscene contents. The latter can have serious personal and social costs especially for the youth. Thus, a mechanism to decide what content can stay online and what has to be taken down remained crucial. That is why we still needed content moderation.
Although content moderation is aimed at creating a safe internet ecosystem, minimal arrangements in MOCI regulation N0. 5/2020 regarding the due process that internet users and private ESOs can take against a government request for termination of access, particularly by MOCI, risked to lead to over-enforcement.
This was further exacerbated by the multi-interpretation nature of the definition of 'prohibited content', as well as the short time limit for deletion of content. This could impose limitations on the digital rights of the Indonesian people and hinder internet freedom.
Many had already expressed concern over the use of Law No. 11/2008 on Electronic Information and Transaction and its 2016 revision (EIT Law) to repress political views and beliefs. It has become an example of the government’s concentration of power that has been significantly threatening the digital sphere.
Access termination and internet shutdown by the government on the grounds of preventing misinformation were often met with resistance from the public, ranging from online protests to protest rallies. Among the latest examples was the internet access shutdown in Papua in 2019, which then led the judiciary branch to rule the government’s action as unlawful.
Although there were enough precedents for the government to reconsider its internet governance, it appeared to ignore people’s concerns. Rather than reconsidering state involvement in the digital space, MOCI Regulation No. 5/2020 reemphasized its central role in Indonesia’s digital governance by establishing MOCI’s authority to request that private ESOs take down prohibited content with limited due process and with no appeal mechanism.
MOCI Regulation No. 5/2020 also required that all ESOs comply with takedown requests by MOCI within a limited time — 24 hours for non-urgent prohibited content, and four hours for urgent prohibited content. This made it difficult for ESOs to comprehensively check the reported content, especially when the regulation gave no room for the private ESOs to express disagreement. For UGC platforms, this obligation came in addition to having to operate their own content moderation mechanisms.
The Way Forward
Ensuring freedom of speech in the digital age is an arduous task both for the platforms and the government. The thin line between the discourse of liberation versus restriction and where to draw the line between them in internet censorship have become an ongoing global debate. This debate revolved around how content moderation could balance the protection of freedom of speech and the maintaining of safe online activity, and of what roles digital platforms should play.
Rather than set an environment of legal uncertainty and arbitrary decision making, MOCI Regulation No. 5/2020 should instead establish a due process for content moderation that would allow private ESOs and also its users to express their disagreement of MOCI’s content removal requests and to ensure that content moderation remained transparent, independent, and fair.
MOCI should also develop an appeal mechanism that would allow ESOs and users to contest MOCI’s takedown requests. Establishing an independent oversight board that included representatives from MOCI, private ESOs and civil society, to resolve content interpretation disputes was also worth considering.
Most importantly, in order to protect Indonesia’s freedom of speech, the government should not be the only party in charge.
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