ITE Law Amendment: Implementation of Right-to-be-Forgotten Clause Considered Irrelevant

Indonesian Version

 
Marcell Sihombing, Rofiq Hidayat
 

 

After a lengthy deliberation process, the House of Representatives (“House”) finally passed the Bill (“Bill”) on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (Informasi dan Transaksi Elektronik - “ITE Law”) on 27 October 2016. Amongst various amendments incorporated therein is the inclusion of the so-called “right to be forgotten” principle, which specifically encompasses the right to request the removal of irrelevant personal information from electronic media (websites, apps, etc.). This principle is widely seen as being one of the highlights of the Bill. Unfortunately, it is highly likely that the implementation of this particular provision will end up creating long-term impacts.
 
This right is currently regulated under Article 26 (3) of the Bill, which stipulates that, “Any organizer of electronic systems must erase any irrelevant electronic information and/or documents under their control upon a request being made by the relevant individual, based on a court decision. ”
 
Following this stipulation, Article 26 (4) of the Bill then goes on to state that “Any organizer of electronic systems must provide a mechanism whereby they can erase any irrelevant electronic information and/or documents in accordance with prevailing laws and regulations.”
 
Commenting on this issue, Anggara Suwahju, Chief Executive of the Institute for Criminal Justice Reform (“ICJR”), stated his belief that the above provisions were originally adopted from European countries prior to their incorporation into the Bill. However, the provisions followed by European countries focus solely upon search engines and do not include the removal of information from particular websites.
 
Mr. Suwahju also asserted that the definition of electronic media, as stipulated under both the Bill and the ITE Law, was too broad. As a result of this, the implementation of the right to be forgotten principle may also end up affecting online news-media outlets, as well as government-owned websites.
 
By way of example, Mr. Suwahju explained that in a case where an individual is acquitted after a criminal allegation has been made, and said individual secures a court decision which allows them to demand the removal of any news or information relating to the allegation from electronic media, then the court decision in question would apply to both government-owned websites as well as privately owned websites. This is due to the fact that government-owned websites are bound to also contain information or data relating to certain types of criminal acts.
 
“The problem is that many [government-owned] websites relate to the public interest. Let’s take the website of the Supreme Court as an example. This site contains a wealth of information and data which relates to criminal acts. Such data is inevitably and invariably recorded on such websites,” Mr. Suwahju told hukumonline in Jakarta on Wednesday, 2 November 2016.
 
Similarly, the right-to-be-forgotten principle, as stipulated under the Bill, may also affect online news-media outlets that cover stories which relate to criminal acts. Such stories are often based upon facts which are sourced from the national police and other law-enforcement institutions. However a suspect may ultimately be acquitted by the court and also secure a court decision asserting their so-called “right to be forgotten”.
 
“In this case, what then is the status of stories which are based upon actual facts? Lawmakers are responsible for thoroughly reviewing these issues, to be sure, however issue this has the potential to cause major problems, especially for small technology companies and domestic technology companies, such as the ones located in Papua. These kinds of company will be the ones that will suffer the full impact [of these provisions],” Mr. Suwahju asserted.
 
Also commenting on this issue, Wahyudi Djafar, the Deputy Director for Human Rights Resource Development at the Public Advocacies and Studies Agency (ELSAM) stated that the revisions stipulated under the Bill were rather patchy and did not offer much of a solution as regards the main issues which were addressed during its deliberation, particularly the introduction of the right-to-be-forgotten principle, which is not supported by sufficient procedures and requirements.
 
Mr. Djafar believes that the new provisions stipulated under Article 26 of the Bill on the removal of irrelevant personal information is itself irrelevant. Moreover, Djafar asserts that these provisions are far from ideal as regards any right-to-be-forgotten principle, as any such removal of information must not only be supported by a court decision but must also satisfy the minimum applicable requirements. These minimum requirements include the obligation to notify the relevant individual of any such information removal. Furthermore, the individual in question must also have the chance to file an objection against the decision to remove the information.
 
Mr. Djafar further asserted that any removal of personal information must be limited through a determination of the types of personal information that can be removed. Moreover, the relevant electronic organizers, public authorities and courts must implement a transparent reporting mechanism as regards any decision relating to the removal of personal information.
 
Addressing the fact that the Bill doesn’t specify sufficient requirements as regards the removal of information, Mr. Djafar asserted that this particular provision had been heavily affected by vested political interests. After all, the original deliberations of the Bill, as undertaken by Commission I of the House and the government, were not accessible to the public.
 
Mr. Djafar further asserted that in countries in which certain individuals were able to enjoy a high level of impunity, such as Indonesia, any provisions relating to the removal of information were easily prone to misappropriation by certain individuals. Such individuals may take advantage of such provisions in order to erase their personal track records, which may relate to criminal allegations, possibly including past human-rights violations.
 
“Moreover, the Bill’s obscure provisions and its lack of thorough understanding as regards which information constitutes personal data or publicly accessible data, will also ultimately hamper public access to the vital information needed in order to determine which political candidates they should vote for, as candidates may erase elements of their personal track records,” Mr. Djafar concluded.
 
Taking an opposing view, Minister of Communications and Information, Rudi Antara, celebrated the incorporation of the right-to-be-forgotten principle into the Bill’s framework, as this principle had not been previously regulated under the ITE Law and thus, in his view, a step forward has now been made. Minister Antara is thus intending to immediately formulate a Draft Government Regulation, which will implement the Bill, and will also disseminate the Bill’s contents to its relevant stakeholders and to the general public.
 
(cd/sp)