iNews and RCTI TV Request for a Judicial Review on the Broadcasting Law to Constitutional Court
Indonesia adopts dualism of judicial review, the Supreme Court (Mahkamah Agung) which reviews regulations below the level of Laws (Undang-Undang) such as Presidential Regulation, Government Regulation, Local regulation etc., and the Constitutional Court (Mahkamah Konstitusi) which reviews the Laws against the the constitution of the government of the Republic of Indonesia (UUD 1945). PT Visi Citra Mitra Mulia (“iNews TV”) and PT Rajawali Citra Televisi Indonesia (“RCTI”) recently using their rights to challenge the Article 1 point 1 of the Law Number 32 of 2002 on Broadcasting (“Broadcasting Law”) to Constitutional Court, because according to them, it is considered against the UUD 1945.
iNews TV and RCTI filed a request for judicial review on the Broadcasting Law and an assessment with registered case number 39/PUU-XVIII/2020. According to their request, the Broadcasting Law only covers the conventional broadcasters, for example: television and radio. Meanwhile, the Broadcasting Law does not cover the internet streaming services, such as for example YouTube and Netflix.
Subject of the Request
iNews TV and RCTI filed a request for judicial review on the following articles:
Article 1 point 2 of the Broadcasting Law:
“Broadcasting means an activity of broadcasting through a transmitter and/or transmission facilities on land, in the sea, or in space by using radio frequency spectrum through air, cable, and/or other media to be received simultaneously and synchronously by the public with a broadcast receiver.”
According to the request, iNews TV and RCTI as the applicant, believe that the provisions of Article 1 point 2 of the Broadcasting Law have caused constitutional losses for them due to the existence of different treatment (unequal treatment) between the applicant as a conventional broadcasting operator that use the radio frequency spectrum and broadcasting operators using the internet such as Over the Top (“OTT”) services in conducting broadcasting activity. Meanwhile, it does not applicable to the internet streaming services.
The applicant requested that the Constitutional Court change the Article 1 point 2 of the Broadcasting Law to become:
"Broadcasting are (i) broadcasting activities by means of broadcasting and/or means of transmission on land, at sea or in space using 12 radio frequency spectrum by air, cable, and/or other media to be received simultaneously and simultaneously by the public with broadcast receiving devices; and/or (ii) activities to disseminate or stream broadcasts using the internet to be accepted by the public in accordance with requests and/or needs with broadcast receiving devices. "
The Progress of the Judicial Review
The preliminary hearing was held on Monday, June 22, 2020, in the Meeting Room of the Indonesian Constitutional Court Building. Further, in the third session, the hearing was attended by the Ministry of Communication and Information, Johny G. Plate which represents the government. He, as the representative from the government, asked the Constitutional Court to reject the iNews and RCTI request. The government considers that if the request is granted, the public will not be able to access social media freely and easily.
Ahmad M. Ramli, Director General of the Post and Information Technology Operators of the Ministry of Communications and Information also said that “OTT companies belong to different legal domain under the Electronic Information and Transactions Law (EIT Law), the pornography Law and several other regulations on digital transmitted content.”
"They cannot possibly be subject to Indonesian law when it comes to OTT companies and content creators located outside of Indonesia's territorial jurisdiction," Ahmad said, adding that the request could also damage the flow of foreign trade with other nations.
What if the Request is granted?
If the Constitutional Court granted the a quo case, 1) the public will no longer be free to use the broadcast features on social media platforms such as Instagram TV, Instagram Live, Facebook Live, Youtube Live, and other audio-visual content channels on social media platforms, considering the broadcasts can only carried out by the licensed broadcaster. 2) if the activities on social media are also categorized as broadcasting, the individuals, business entities, or legal entities will be forced to have a license as broadcasting institution. Refly Haru, a Constitutional Law Expert also adding if the request is granted, therefore it will limit the freedom and creativity of citizen.
Indonesian Broadcasting Commision’s Point of View
Indonesian Broadcasting Commission (Komisi Penyiaran Indonesia/ KPI) is an independent state institution established under the Broadcasting Law. The Head of Central KPI, Agung Suprio has his own point of view about the request a quo which being concerned for netizens especially for content creator lately. According to him, the aim of the request will not limit the creativity of content creator or the owner of the content account, however it will be focused on the platform owner itself (in this case regulating the internet streaming platform), as already applied in several countries, Europe and Australia which previously made a regulation for “the new media”. Agung Suprio said, on the online discussion in collaboration with Launcher.id and Young Lex with the topic “Public Content: Freedom of Expression vs Public Order” on Wednesday, 10 September 2020.