License to Censor: The use of media regulation to restrict press freedom - Indonesia

Population: 243,306,000
Press Freedom Status: Partly Free
Licensing for print outlets: No
Licensing of journalists: No
Independent Regulatory Body(s): No

Introduction

Since the end of the authoritarian New Order regime of President Soeharto in 1998, Indonesian media have experienced a dramatic expansion of freedom and diversity. Once under near-total control of the Ministry of Information, journalists today receive a certain level of protection from government interference. By 2008, approximately 1,000 publications were in print, a dramatic increase from prior years. The number of radio stations increased from 750 in 1998 to approximately 2,600 in 2010, the vast majority of which are privately owned or community operated. The greatest change in media ownership occurred in the television sector. Under Soeharto, there were only six stations: the state-owned Televisi Republik Indonesia (TVRI) and five private stations, each owned by relatives or close associates of the president. Today, Indonesia's television market includes more than 100 stations of diverse ownership. However, even with the growth of private media outlets and legislation aimed at protecting freedom of expression, journalists continue to face intimidation, most commonly through defamation charges. These are frequently filed under the criminal or civil code, rather than the more lenient Press Law. Reporters also face some level of physical attacks and harassment. Environmental journalists and those who report on the abuse of power by public officials have faced the most intimidation, with little to no protection from law enforcement.⁹⁸ The consequent fear of upsetting the government and other powerful societal actors has led some media outlets to practice self-censorship.

Press freedom is protected through a number of legal instruments, including the 1945 constitution, which guarantees the right to communicate and obtain information, as well as Article 14(2) of Law No. 39, passed in 1999, which ensures the right to "seek, obtain, own, store, process, and impart information using all available facilities."⁹⁹ In September 1999, President B. J. Habibie signed Press Law 40, which eliminated press licensing and publication bans by the government. It provides for "freedom of the media, [and] the right freely to form journalists' associations," and allowed for punitive measures against those who attempted to restrict press freedom.¹⁰⁰ However, the retention of criminal defamation legislation has posed an ongoing restriction to media freedom. In 2008, parliament enacted the Information and Electronic Transactions (ITE) Law, which further limits freedom of expression by imposing jail sentences of up to six years or fines of as much as one billion rupiah ($106,000) for defamation that appears online. In May 2011, the Indonesian House of Representatives introduced a draft of a controversial Intelligence Law. The law has not been passed, but journalist groups are concerned about the impact the bill could have on press freedom, due to provisions authorizing the interception of private communications and restricting the right to information.¹⁰¹

Laws Relating to the Regulatory Framework

Article 15 of Press Law 40 established an independent Press Council (Dewan Pers) as a regulator for print media. Press licenses became obsolete, but according to Article 15(2)(g), press organizations must be registered with the Press Council. Members of the nine-member council represent the journalism and media industry as well as the general public. To strengthen its independence, new members are selected by the media sector.¹⁰² Under the Press Law, it is the responsibility of the council to play the role of mediator in disputes involving the media, which often involves offering alternatives to defamation charges to settle disputes. In February 2006, the Supreme Court ruled that defamation matters must be referred to the Press Council first. However, many defamation charges against journalists continue to be prosecuted under the criminal code. Public officials can file defamation charges against journalists for factual mistakes, potentially leading to seven years of prison under the criminal code or an unlimited amount of compensation under the civil code.¹⁰³ As a result, the Press Council – which was intended to become the main vehicle for hearing complaints and issuing binding recommendations to resolve disputes involving public officials – has not been fully effective. However, the Press Council has been more successful in dealing with public complaints against the press. In February 2010, the council published the Competency Standard for Journalists (Standar Kompetensi Wartawan), in which it outlined 11 key competencies that journalists should possess to gain credibility and recognition. Although individual journalists need to score between 70 and 100 on the competency test to be publicly declared "competent journalists," this is not a licensing requirement for entry into the profession per se, but rather a badge of quality that is publicly listed on the council's website.¹⁰⁴

Unlike print media, television and radio stations are required to possess a license. Broadcast media are regulated through Broadcast Act No. 32, adopted in 2002. This law established broadcasting as a matter of public interest, subject to government regulation. The Broadcast Act also established the Indonesian Broadcasting Commission (Komisi Penyiaran Indonesia or KPI), an independent body whose responsibility is to "regulate and provide recommendations in the area of broadcasting."¹⁰⁵ KPI is made up of national and regional bodies, and its decisions cannot be appealed.

Although the government lost much of its overt powers through the establishment of an independent broadcast regulator, it gradually began to reclaim regulatory power and today much of the power over broadcasting is in government hands. In 2005 alone, seven regulations were passed to weaken the authority of KPI by limiting the scope of its work. For example, the Ministry of Communication and Information Technology now has the authority to issue licenses and extensions, and to impose criminal sanctions on broadcast agencies.¹⁰⁶ Operation licenses for radio broadcasting are valid for 5 years, and television broadcasting licenses are valid for 10. Broadcast licenses are used to ensure that broadcasting institutions do not deviate from their mission to inform the public. Requirements in the licensing system include technical specifications, content, and ownership. Licenses are granted in stages and after a temporary testing period (6 months for radio and 12 months for television), the station can apply for a permanent broadcasting license. Reasons for not successfully completing the testing period include violating the use of radio frequency spectrum, failure to broadcast for three months without providing advance notice, transferring the license to another party, and violating technical requirements. As a result of such regulations, licenses continue to be bought and sold rather than new entrants to the sector applying for a license outright.

In 2005, radio operators in West Sumatra asked to have the government's regulation No. 51/2005 on Community Broadcasters revised. Specifically, they challenged the articles regarding licensing policies, maximum broadcast radius policies, and the rule requiring Indonesian to be the main language of all broadcasts. They felt that these rules were in violation of the Broadcast Act, which established KPI, and not the government, as the supervisory body over broadcasting.¹⁰⁷ Also in 2005, KPI unsuccessfully submitted a judicial review request to the Supreme Court regarding regulations No. 11/2005 on Local Public Broadcasting Agency, No. 12/2005 on Radio Republik Indonesia, and No. 13/2005 on TV Republik Indonesia. KPI felt these regulations granted the Ministry of Communication and Information too much authority over public broadcasting, which, it argued, should fall under KPI's authority. Another example of the government's supreme authority over broadcasting is its regulation of foreign broadcasting and ownership. Local stations are prohibited from relaying foreign broadcasts, and foreign ownership of broadcast media is prohibited.

Since its establishment, the Broadcast Act has drawn significant criticism for its broadly worded restrictions on content and its harsh penalties for violations, both of which exceed international norms. For example, Article 36(6) contains a number of prohibitions, such as "belittling, harassing and/or ignoring religious values and the dignity of the Indonesian people, or damaging international relations."¹⁰⁸ According to Article 57(d) and (e), a violation of these provisions can lead to imprisonment for up to five years. Many analysts feel that these vague provisions are intentional in order to ensure continued government control of the media.

The transformation of the broadcast sector, which started in 1998, received a boost when public broadcasting was formally launched in 2005 with regulation 11/2005 of Public-Service Broadcast, which introduced Radio Republik Indonesia (RRI) and Televisi Republik Indonesia (TVRI) as public institutions rather than government bodies.¹⁰⁹ In their original roles under the Ministry of Information, RRI and TVRI worked under strict regulations. Not only were all their employees, budget, and equipment needs provided by the government, but they were prohibited from reporting criticism of government policies. All broadcasters in the country were required to air news reports by RRI and TVRI to help meet the ministry's goal of favorably reshaping the public's opinion of the Soeharto regime. Today, as public services, neither RRI nor TVRI are obliged to relay news by the government. In the current Broadcast Act, public broadcasting is mentioned only twice. Article 14 states that the responsibility for appointing directors and boards for public broadcasters falls on the president upon recommendations from the House of Representatives. Consequently, public broadcasters report to the House of Representatives. Article 15 outlines funding options for public broadcasters. Such options include community contributions, broadcasting fees, and other "legitimate businesses" related to broadcasting.¹¹⁰ Other funding options include advertising profits and government subsidies.¹¹¹

Impact of Regulation on Media Freedom

Media freedom, especially in broadcast media, is somewhat limited due to a regulatory framework that allows government involvement in appointments to the KPI as well as in the licensing process. Although KPI was established as an independent regulatory body, the overlap in authority exercised by KPI and the government has raised doubts over its scope of power. KPI refers to itself as a "quasi-state body" or "auxiliary state institution."¹¹² Following input from the public, in which names of candidates are sent to the People's Representative Council (DPR) (sometimes referred to as the House of Representatives), KPI members are nominated by the DPR and the Regional Representative Council (DPD). Provided that candidates have no business interest in the mass media and no political ties, and that they pass a "fit and proper" test gauging their knowledge of the licensing and broadcasting regulations as well as their general capabilities to do the job, they are then appointed by the president and provincial governors.¹¹³ The current board, appointed in 2010 and headed by Dadang Rahmat Hidayat of the University of Padjadjaran, will serve until 2013.

The funding for KPI's Central Indonesian Broadcasting Commission comes from the national government's budget, while funding for the Regional Indonesian Broadcasting Commissions comes from the local governments' budgets. As the government controls the amount of funding and administrative support KPI receives, KPI's central and regional commissions have been unable to perform their functions effectively. Local governments are often unclear about the commissions' roles and are consequently reluctant to fund local branches of KPI out of the provincial budgets. KPI is also facing funding difficulties due to severe restrictions put in place by the government. According to Article 23 of the Broadcasting Act, although community broadcasting is now recognized, "they must not receive start-up funds from foreign sources and cannot run commercials other than public service announcements," making community broadcasting quite challenging in terms of financial sustainability.

In 2010, KPI received almost 20,000 complaints on television content, up 200 percent from the previous year. Only 4 percent of the complaints were related to news, whereas 80 percent were regarding "infotainment" programs, a mixture of news and entertainment features that critics claim violate the journalistic code of ethics.¹¹⁴ In July 2010, KPI announced its plans to censor the programs for violating "ethical, religious, moral, social, and cultural values in Indonesia."¹¹⁵ In some cases, the Press Council and KPI are both involved in resolving disputes. For example, in 2009 both groups gave attention to complaints that the media was being used to "campaign" for political positions. Specifically, two candidates had used the media to campaign for the Golkar political party's general chairman position. KPI later advised "not to use television stations as a medium in the competition to win the position as General Chairman of Golkar."¹¹⁶

Although KPI has the authority to hear and adjudicate complaints regarding content, it is still the government that has the authority to shut down stations completely. In 2007, the Ministry of Communications and Information Technology denied the Era Baru station a permanent broadcasting license. Era Baru claimed the decision was in response to a request from the Chinese Embassy in Jakarta due to the station's link to the Falun Gong movement, which has been banned by the Chinese government.¹¹⁷ In March 2010, before the Supreme Court's ruling on the case, local police entered Era Baru's studio in Batu Ampar and confiscated its transmission equipment after repeated warnings to cease broadcasting were ignored. On October 5, 2010, the Supreme Court overturned the lower court's decision and temporarily gave an airwave frequency back to Era Baru. However, it was reported in March 2011 that the station's manager, Gatot Machali, was facing a possible six-year jail sentence for broadcasting without a license.¹¹⁸ There have been no other recent reports of shutdowns or license denials.

Attempts at self-regulation of the media industry exist, but their impact is limited. During the Soeharto period, the main press organization was the Association of Indonesian Journalists (Persatuan Wartawan Indonesia or PWI). At that time, newspapers had to obtain a Press Publishing License (SIUPP) and journalists were required by law to belong to PWI. Many saw the PWI as a New Order government-controlled body. This was exemplified by its decision to ban three influential weekly publications: Tempo magazine, Editor magazine, and the Detik tabloid. In 1994, journalists from these three publications joined forces to establish an independent journalists' organization, the Alliance of Independent Journalists (AJI). AJI is now the country's second-largest journalists' union, consisting of representatives from numerous press organizations. AJI encourages self-regulation by individual media houses according to their own code of ethics, which includes the prohibition of information that is "untrue, slanderous, sadistic, or pornographic."¹¹⁹ PWI is no longer a government tool, and it continues to function as a journalists' organization today, with its own code of ethics.

The Press Council has also faced difficulty in regulating the print media industry, as its authority remains unclear in a court of law. It is also limited in its efficacy due to its small size and lack of resources. The nine-member council does not receive salaries and instead must rely on other means of income, limiting the amount of time some members can invest in their responsibilities.¹²⁰ Some argue that its effectiveness would increase if members were compensated and therefore able to allocate more time to Press Council business. Others feel that allowing members to continue their work within the media industry provides valuable perspective that will contribute to their roles on the Press Council. The council receives its funding through the Ministry of Information and Communication, as well as some support from international donors, instead of being funded through a separate line-item in the national budget.

In spite of its funding challenges, the Press Council has continued to gain public confidence. During its first eight years of operation, it received almost 2,000 submissions requesting its involvement in resolving disputes. In 2009, 222 of the 353 complaints were made by the government, but many public officials still opt to go to the police or the courts directly rather than to the Press Council. For example, in July 2010, the Indonesian National Police first chose a legal process to handle a dispute with Tempo regarding an offensive cover on the magazine's June 28-July 4 issue that portrayed a policeman holding three piggy banks (pigs are considered impure in Islam). However, they later approached the Press Council for mediation, during which Tempo agreed that the cover was offensive and offered an apology.¹²¹ Other recent cases adjudicated by the council can be accessed through its official website, http://www.dewanpers.org/ understanding regarding options officials should consider when dealing with the media.

Another area in which the Press Council has attempted to effect change relates to individuals' right of response (more commonly known as right to reply). Article 1(11) of the Press Law establishes one's right to respond to reports that are unfavorable to his reputation. Article 5(3) establishes the media's right to issue corrections of inaccurate reports. Criticisms of the right to respond included the lack of discrimination between true and false reports. Reports only needed to be factual and unfavorable for individuals to exercise their right to reply. In 2008, the Press Council issued Press Council Regulation No. 9, in which it provided a 17-point Right of Reply Guide in an effort to reach a common agreement among all parties involved.

Conclusion and Recommendations

The Indonesian media has made huge strides in the 12 years since the end of the New Order regime. Laws such as Press Law 40 and the establishment of regulatory bodies such as KPI and the Press Council have started a progressive movement toward a freer media environment. However, in order to push Indonesian media toward a more democratic future, KPI and the Press Council must have unequivocal authority over media issues and disputes in order to be truly self-regulating. In regard to broadcast licenses, KPI should have sole authority and the government should remove itself from the license-granting procedure completely. In print media, the government should legitimize the authority of the Press Council by mandating that all civil charges brought against media outlets first be mediated by the council, while in appropriate cases and under limited conditions, charges can be brought under the criminal courts. Finally, laws regarding defamation charges need to be more specific. They should clearly discriminate expressions of opinion from expressions of fact and ensure protection for the former. When defamation charges are made, defendants should not be tried under the criminal code. Further education and training for public officials and judges regarding defamation law and existing recommendations of the Supreme Court can also be useful in strengthening the Press Council as an initial mechanism for redress. The potential reform and updating of the Broadcasting Act, while necessary to adapt to a changing media environment, should be undertaken alongside the strengthening of an independent regulatory framework for broadcast media. Likewise, current proposals to start regulating internet-based content should take account of international best practice, which calls for minimal regulation of this developing medium.

98 The Alliance of Independent Journalists (AJI), "AJI documents 40 cases of violence against media workers in 12 months," 11 August 2010, accessed at: http://www.ifex.org/indonesia/2010/08/11/2010_press_freedom_enemy/

99 Asian Legal Resource Center, "Republic of Indonesia Legislation Number 30 of 1999 Concerning Human Rights," 23 September 1999, accessed at: http://hrli.alrc.net/mainfile.php/indonleg/133/

100 Press Reference, http://www.pressreference.com/Gu-Ku/Indonesia.html

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102 Article 19, "Freedom of Expression and the Media in Indonesia-Baseline Study," December 2005, accessed at: http://www.article19.org/data/files/pdfs/publications/indonesia-baseline-study.pdf

103 Tessa Piper, "Don't Shoot the Messenger: Policy Challenges Facing the Indonesian Media," 5 November 2009, p.12 of English version, accessed at: http://www.ajiindonesia.org/index.php?option=com_docman&task=doc_view&gid=28&tmpl=component&format=raw&Itemid=28

104 Warief Djajanto Basorie, "How to be a competent journalist," The Jakarta Post, 12 March 2010, accessed at: http://www.thejakartapost.com/news/2010/03/12/how-be-a-competent-journalist.html

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107 Syofiardi Bachyul Jb, "Indonesia: Community stations call for new radio rule to be revised," 20 December 2005, accessed at: http://www.international.ucla.edu/article.asp?parentid=35922

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109 JAMCO, "Public Broadcasting in Indonesia," 2009, accessed at: http://www.jamco.or.jp/2009_symposium/en/004/index.html

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111 Asia-Pacific Institute for Broadcasting Development, "The Administrative and Financial Aspects of PSB: The TVRI Experiences," 30 November 2010, accessed at: http://www.aibd.org.my/node/228

112 Accessed at: http://www.kpi.go.id/index.php?lang=eng&etats=detailmenu&nid=23

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117 Ismira Lutfia, "Batam Radio Station Has Broadcast Equipment Seized," The Jakarta Globe, 29 March 2010, accessed at: http://www.thejakartaglobe.com/indonesia/batam-radio-station-has-broadcast-equipment-seized/365671

118 Reporters Without Borders, "Local radio station manager facing possible six-year jail term," 28 March 2011, accessed at: http://ifex.org/indonesia/2011/03/28/machali_facing_imprisonment/

119 Press Reference Indonesia, http://www.pressreference.com/Gu-Ku/Indonesia.html

120 Piper, p.16 in English version.

121 AJI, "The Threat from Within."