Two years after the European Union first asserted a person's "right to be forgotten," or the removal of objectionable search results, Indonesia has moved toward including a similar provision in its Internet law. If enforced, it would be the most stringent such measure in the world because it would target not just search results, but also original content.
Civil liberties activists and journalists are concerned about its implications in a country where censorship is steadily on the rise. It’s not the law itself that worries them, but omissions in its initial wording.
“This new law doesn’t mention anything regarding freedom of the press,” Arfi Bambani, Secretary General of the Alliance of Independent Journalists, told VOA. “That's why we think it could be a threat to press freedom. Anyone might request a court order, with impunity, to erase negative news about them in digital media.”
Whose right to be forgotten?
Article 26 of the revised Electronic Information and Transactions (ITE) law would enable people to “request the deletion of published information if it is deemed to have become irrelevant,” according to the Jakarta Post. It’s aimed at criminals who were acquitted and want to clear their name. Many worry that it will be misused by politicians.
“This provision may become a tool of the government… for censoring news, media and journalist publication[s]” said Indonesia's Institute for Criminal Justice Reform (ICJR), in a statement.
The clause is one of several proposed revisions to ITE that passed in the House on October 27. Other topics that are addressed include cyberbullying and libel. Indonesia’s Communications and Information Minister Rudiantara, who goes by one name, suggested on Twitter that the amendments were essentially minor tweaks to modernize the ITE, which dates to 2008.
Since these are revisions and not a brand new law, the timeline for their enactment is greatly condensed, said Heru Sutadi, of the ICT Institute. Usually it takes about two years for a law to go from draft to federal approval, but the revised ITE could apply within months.
Once the House finalizes the wording, all that’s left is for President Joko Widodo, widely known as Jokowi, to put it on the state record and it will immediately be in effect.
It’s disappointing that Parliament did not seek public opinion when drafting the revised ITE law, said Supriyadi Widodo Eddyono, ICJR’s executive director.
“The Parliament and the government blocked public access to the revision, and the whole discussion was private and confidential. That seems to have been intentional,” he told VOA. “Now it’s too late for the public to have any meaningful input.”
Doubts about application
One official who was involved in ITE deliberations claimed that “all internet content providers,” from newspapers to Google, would be forced to comply with the law. Google could not immediately be reached for comment.
“We have to force [content providers] to comply with the law. If they neglect a court order to delist unwanted online stories, they have to be punished,” Henri Subiakto, a professor and staff member at the Communications and Information Ministry, told The Jakarta Post.
But experts are skeptical whether the government really has such capacity or ability.
“The criteria for deleting content are not precise,” Eddyono told VOA. “And the government's authority is too broad to delete web sites. Plus, the procedure for doing so is still unclear in the legislation.” He added a court order to delete any content would not be legally binding.
The EU precedent
Another reason implementing the right to be forgotten would be difficult in Indonesia, as opposed to the European Union, is that Indonesia does not have strong protections on personal data, said Wahyudi Djafar, a researcher at the Institute for Policy Research and Advocacy (ELSAM).
“The EU has good, strong regulations on data protection, and the right to be forgotten is interwoven into that framework,” he said. “Here, I suspect that content removal could be abused with impunity. I think Article 26 is protecting the Parliament’s political interests, not those of citizens or journalists.”
Djafar proposed the creation of an independent body to field content removal requests under Article 26, since the Indonesian courts “have problems with capacity in regulating technology.” He also hoped that the government would wait to enforce Article 26 until a federal personal data protection act, which is currently being drafted, passes into law, likely in 2017.
Still, Indonesian officials have cited the EU as inspiration for their own law.
A major milestone in the development of a right to be forgotten framework was a 2014 case in which a Spanish man petitioned Google to remove a link to an outdated article about his home foreclosure. The European Court of Justice ruled in favor of the man, Mario Costeja Gonzalez.
“Seeing the Spanish man’s case, the right to be forgotten should be adopted in Indonesia,” said Subiakto, last week.
“But can a local court here really order Google to erase something?” wondered Bambani, of the journalists’ alliance. “I doubt it… that’s why we think the mind behind this law is not targeting companies like Google, but us, the local press and media. We worry that this will just be a way for politicians to erase their bad behavior from the record.”
One of the foremost academic advocates of the right to be forgotten thinks Article 26 could be a positive development, if it’s applied judiciously and its scope is narrowed. Viktor Mayer-Schönberger, the Oxford professor of Internet governance, told VOA that it all depends on striking the “right balance” between authority and censorship.
“Anything that helps our technologies to behave more like to what we humans are used (like forgetting and forgiving over time) is a potential step in the right direction,” he said.
It would be best if content removal were restricted to search results, rather than original content, said Mayer-Schönberger. Indonesia’s Article 26 currently stands to apply to both types of content.
“I would want to make sure that the right to be forgotten is not designed as an absolute remedy, with information vanishing completely, but as a relative remedy, much like a speed bump on the road that slows one down, but does not make it impossible to reach your goal,” said Mayer-Schönberger. In its ideal application, he said, the right to be forgotten would make it less likely that people “stumble over” irrelevant information about us– but they would still be able to find it if they try hard.