Two trials that concluded in late 2021 in Indonesia show the abusive reach of the country’s Electronic Information and Transactions (“ITE”) law.
In one, Muhammad Asrul, a journalist who had reported on alleged government corruption, was convicted of online defamation and sentenced to three months in prison. In the other, Stella Monica Hendrawan, a twenty-five-year-old dermatology patient, was charged – and eventually acquitted – for Instagram posts saying a beauty clinic was expensive and its treatments were ineffective. Together these cases show the expansive and arbitrary way the ITE law is applied, and they reinforce the urgent need to reform it.
“On paper, Indonesia is a constitutional democracy with freedom of speech. These cases show that this freedom can be a mirage in Indonesia and demonstrate that the ITE law is flawed and overbroad. Indonesia’s President has committed to reforming this law, and I hope that this happens quickly,” said Professor Simon Butt, the TrialWatch Expert working on both cases.
The American Bar Association Center for Human Rights monitored both trials as part of the Clooney Foundation for Justice’s (CFJ) TrialWatch Initiative. CFJ calls on the appeals court to reverse Mr. Asrul’s conviction.
During the first nine months of 2021, at least 81 people were charged under the ITE Law. According to Amnesty International, the law has been “misused to criminalize hundreds of people… simply for exercising their right to freedom of expression.” Indonesia’s police have also acknowledged that the law is “considered to be contradicting the public’s right to freedom of expression in the digital space.” Even Indonesia’s President has emphasized that “[t]here should be no criminalization of the freedom of expression,” and agreed to pardon an academic previously convicted under the law. Indonesia also recently published guidelines for implementing the ITE law, seeking to impose limits on its use.
Mr. Asrul, who spent over a month in pre-trial detention, was convicted for articles in which he stated that the son of the Palopo mayor was “alleged” to be the “mastermind” behind a corruption scandal involving a hydropower plant. During his trial, one of the judges appeared to briefly fall asleep and others were checking text messages on their mobile phones.
At trial, the prosecution presented almost no evidence that Mr. Asrul had intended to defame the mayor’s son, a key requirement under the law. Despite this lack of evidence, the court not only convicted Mr. Asrul, but also imposed a three-month prison sentence – although the UN Human Rights Committee has held imprisonment is never appropriate in cases of alleged defamation.
Ms. Monica said in an Instagram story that her skin condition had gotten worse despite treatment at a beauty clinic. She also complained about the clinic’s cost. The indictment alleged that her “slanderous and defamatory statements against the reputation” of the clinic “cause[d] distrust or negative thoughts” about the business. On this basis, she was subjected to a trial that lasted nearly eight months. In her case, too, the prosecution failed to provide evidence that she knowingly harmed someone’s reputation. Further, her defense argued that her case concerned “the personal view of someone on an event or an incident that happened or might happen” – the kind of opinion that should not be prosecuted.
Both cases violated the defendants’ rights to freedom of expression because the ITE law is vague and overbroad on its face and because criminal prosecutions – and in one case a custodial sentence – were neither necessary nor proportionate responses to the speech at issue.
“In Mr. Asrul’s case, the court seemed to simply ignore some quite compelling defense evidence and arguments. It’s hard not to see these uses of the ITE law as efforts to stifle online speech at the behest of the more powerful or better resourced,” added Professor Butt. “Online media reports about alleged corruption are published every day in Indonesia, and it is unclear why Mr. Asrul was personally singled out. It is also very unfortunate that the courts took over two years to investigate and resolve Mr. Asrul’s case, and that he spent so long in detention.”
Mr. Asrul is a reporter for Berita News in Sulawesi, Indonesia. On May 10, 2019, he published a piece on the berita.news website – and reposted this article on his Facebook and Instagram accounts – detailing the alleged involvement of the son of the Palopo mayor in a corruption scandal. He also subsequently posted several other pieces on the same issue, which, although not referenced in the indictment, were discussed in the court’s judgment. After the son reported the article to the police, a criminal investigation into Mr. Asrul was launched.
Twenty-five-year-old Ms. Monica is a recent college graduate who visited a beauty clinic for acne and other skincare concerns. Ms. Monica posted messages between her and her friend on her Instagram story where they discussed how her friend’s “skin condition was the worst” after a visit to L’Viors clinic.
Both Mr. Asrul and Ms. Monica were charged under Article 27 of Indonesia’s ITE law, which punishes “knowingly and without authority” distributing electronic information that causes “affronts and/or defamation.” Additionally, Mr. Asrul was charged with deliberately causing public unrest by disseminating fake news or reports under Article 14 of Law 1 of 1946, and with distributing information aimed at inflicting hatred or enmity on “individuals and/or certain groups of community based on ethnic groups, religion, or race” under Article 28 of the ITE law. Mr. Asrul ultimately was convicted of violating Article 27 of the ITE law.
At both trials, the prosecution presented minimal evidence to support the charges. For instance, in Mr. Asrul’s trial, the prosecution argued that Mr. Asrul’s reporting was not ‘journalistic’ because the outlet for which he worked was still in the process of complying with administrative registration requirements and because Mr. Asrul had not obtained a journalism certification. However, none of this was relevant to establishing whether his reports contained ‘fake news’ or to whether he had defamed anyone, much less deliberately, as the law requires.
Indeed, the recently published manual on implementing the ITE Law specifies that proof of intent is an important element for an Article 27 ITE case. In Mr. Asrul’s case, the prosecution argued – and the court agreed – that Mr. Asrul had failed to adequately corroborate his story, and that this demonstrated his intent to fabricate information. However, the defense provided evidence that Mr. Asrul attempted to verify the information in the article, including by reaching out to the article’s subject, who was unresponsive. The prosecution did not challenge this evidence and provided no additional proof of intent. Nevertheless, the court concluded that “the news made by the defendant” was “inconsistent with the principle of verification” and “also violated the Journalistic Code of Ethics.” In particular, the court seemed to rely on an argument that “the defendant’s mental attitude” to defame could be inferred by alleged use of quotes from the prosecutor’s office without what the court considered sufficient context. For the court, the interview from which he quoted about corruption prosecutions was not “specifically related to the projects that he mentioned in his report, but… carried out together with journalists from other media who at that time only asked about the handling of corruption cases in South Sulawesi in general.”
In Ms. Monica’s case, the prosecution also failed to provide evidence that she knowingly harmed someone’s reputation, instead stating merely that Ms. Monica’s Instagram posts “were seen by many people” and might have made the clinic “not as busy as before,” even though her Instagram was limited as to who could access content.
A full Fairness Report covering both cases will be made available soon.