'Hate Sowing', [Your] Speech is not "100% Protected" in Legal Parlance, [Happens] Globally

Berlin 5.11am / London 4.11am / IKN - Indonesia New Capital City ‘NUSANTARA 1.11pm

[Author is one of / part of whistleblower for abuse of power / corruption global and local tobacco company in Indonesia, and rape case / sexual harassment by my ex lecture]

In the middle [lookalike] self-sabotage democracy in Indonesia, ‘Soeharto 2.0’ wannabe just months before President ‘Jokowi’ Joko Widodo end his tenure, with the policymakers having wrapped up their deliberations on the second revision to the Electronic Information and Transaction (ITE) Law without meaningful public consultation, we will likely continue to live under an illiberal cyberlaw.

It is concerning that members of the executive and legislative bodies have chosen to keep their discussions of the important bill from public scrutiny. As we become more reliant on digital technology to do our daily tasks, which has turned all of us into netizens, it is only fair that we have a say in the making of the rule of law in cyberspace.

Not so different, globally, actually. Germany occupies a special place in the international imagination.

After the horrors of the Holocaust and the difficulties of reunification, the country acquired a reputation as a leader of the free world. In his surge for a second term as U.S. president, Donald Trump has relentlessly attacked his likely opponent Joe Biden. If Trump win election 2024, leader of free world back to Germany again [means, led by Chancellor Olaf Scholz], like Angela Dorothea Merkel era [2017 - 2020].

Economically prosperous, politically stable and more welcoming to immigrants than most other countries, the Germans — many thought — had really learned their lesson.

The past few months have been a bit of a rude awakening. The far-right Alternative for Germany party, fresh from success in two regional elections, is cementing itself as the country’s second-most-popular party. Migrants are in politicians’ cross hairs, threatened with deportation and reduced support. And the country’s commitment to fighting antisemitism seems not only to be failing but also to have given rise to an outpouring of anti-Muslim sentiment.

The truth is that Germany never fully deserved its vaunted reputation.

A worthy undertaking, to be sure. But the Scholz government’s habit of conflating criticism of Israel with antisemitism has had some disturbing effects. Most notably, it has created an atmosphere where advocacy for Palestinian rights or a cease-fire in Gaza is seen as suspect, running afoul of the state-mandated position. The police, for example, have cracked down on pro-Palestinian protests in several cities and outright banned numerous demonstrations.

The cultural sector has seen far-reaching acts of censorship, too. The Frankfurt Book Fair canceled an award ceremony for the Palestinian author Adania Shibli, and the Berlin senate cut funds for a cultural center on the grounds it refused to cancel an event organized by the left-wing group Jewish Voice for a Just Peace in the Middle East. In this sulfurous atmosphere, the office of Jian Omar, a Berlin lawmaker of Kurdish-Syrian background, was attacked, part of a wider trend of intimidation directed at the country’s Muslims.

Plestia Alaqad in Gaza. Anne Frank in Germany

Plestia Alaqad

This is all concerning enough. But politicians, seizing on some evidence of antisemitic displays at pro-Palestinian protests to link Muslims and migrants with antisemitism, have taken the opportunity to advance an anti-migrant agenda.

In America, 82% of all U.S.-based respondents, incl. almost all assistant professors (98 %), said they self-censor when they speak professionally about the Israeli-Palestinian issue. 81 % of those said they primarily held back their criticism of Israel vs 11% of Palestinians. Can't possibly imagine why 98% of assistant Profs feel the need to do this.

There are some employment law aspects to the university speech panic that haven't been fully explicated. I think there are two pieces. First, universities are themselves of course employers: of faculty who have protections due to academic freedom and/or tenure, but also of staff.

Josh Sternberg is Jewish American, pro Palestine

From my American colleagues, I've been hearing *many* reports from colleagues of college and university staff who have recently faced retaliation due to political speech. And there are some high-profile cases of faculty facing the same. The more interesting question is raised by the second legal connection.

Namely: Why does anyone think universities should discipline employees for their off-duty speech? More generally, why does anyone think that about employers generally?

One reason is employment at will. In the US, employees can be terminated for any or no reason, as long as it isn't otherwise unlawful. And in the majority of states, employee political speech is not "protected" in legal parlance.

This helps create a situation in which it makes legal and political sense to call on an employer to fire their employee for political speech. There are surely deeper conjunctural forces at work here as well.

For a whole set of reasons we now see firms as moral actors here in the dual sense that they have agency and that they should exercise it responsibly. Weird and insane. Companies exist to make things and accumulate capital. We expect churches and social orgs to act morally in that sense, but that's because they're set up for moral action.

Employment at will plus a sense that employers need to be moral actors has created this situation where it is both possible and acceptable to demand that an employer fire an employee for their political speech. I'll have more to say about this later, I think. For now, just note that if employee political speech was protected, that view would not necessarily be commonsensical. Rather we'd think more "oh, that employee said that in their private life, NBD."

Actually 3 months ago, some ‘lil bit’ hope for freedom of expression in Indonesia. At least, practically, not [new] enacted law.

Mas / Mister Nezar Patria is a former activist, and was part of [or victim] abductions of pro-democracy activists which happened between the 1997 Indonesian Legislative Election and the fall of Suharto in the 1998 / May 1998 riot.

‘Mas’ Mr Nezar Patria replied to my email years ago, in some Thread-mail discussion on / between pro-democracy forums. His track record is very long, mostly ‘head.’

Nezar Patria [left]

In Jakarta Post, CNN - INDONESIA area, Vice Minister for Indonesia Ministry of Sovereign Owned Enterprise, now Vice Minister of Telco Ministry. He got VM of Telco after gigantic corruption of former Telco Minister Johny Plate. President Joko Widodo must reshuffle Pak Plate, and the new MinIster is Pak Budi Arie, but Telco Ministry must accelerate a lot of programs, so Jokowi decided to set a new seat= VM of Telco.

Mba / Ms Sofie Syarif was senior / high-ranking and respected journo in Indonesia. She of course knows Mas Nezar. KOMPAS / KOMPASTV Headquarter just inches from Jakarta Post HQ, a former employer of Mas Nezar. Arguably, each other actually has a WA [Whatsapp number], or, even, in the same WA group, I think. Ms Sofie is now in London, studying again, for Ph.D., in Goldsmith University. 

[Canada regulation ‘must formally register’, not try to simplify, but really similar with brouhaha chaotic register process of PSE in Indonesia, July - August 2022]

A bit convo in Twitter / now X, between Mba / Miss Sofie and Mas Nezar at least giving a [little] hope for Indonesia, a direct apology, sorry, on using social media, for freedom of expression. Mas Nezar, as VM [Vice Minister] directly says sorry, apologizes, after an uncomfortable situation suffered by Mba Sofie, gets some ‘teguran’, ‘flagged’ by Twitter / X, about her tweet, contained with the link of KOMPAS, her employer. KOMPAS [kompas-gramedia] arguably the 3rd biggest ASEAN media after Indonesia’s MNC Group and Singapore’s MEDIA Corp.

Can’t try to simplify, but ‘grey area’ about flagging of content / post in twitter, ‘grey area’ about/to defining ‘it’s good content or not’, very similar to ‘German Network Enforcement Act / German Network Enforcement Law [NEA / NEL], or in GERMAN language Netzwerkdurchsetzungsgesetz.’

Some victims [because he or she is very confident that the tweet is harmful] think that NEA or NEL used to, or "tactic" has been applied to other folks who do occasional research into (possibly) controversial topics or controversial tweets.

I believe that Mba Sofie just tries speaking [/ tweet] her thoughts, and this is freedom of speech, and not to spark controversy.

[Mba / Ms Sofie still overwhelmed how actually the flow of complaining some tweets/posts and ended up on Telco Ministry asked TWITTER/X Indonesia to giving a notice to Mba Sofie]

some user angry about Taliban brutality to civil and women, and he get flagged by German Network Enforcement Act / German Network Enforcement Law [NEA / NEL] / Netzwerkdurchsetzungsgesetz

Mba Sofie was writing a joint paper with Yanuar Nugroho [former advisor for Presidential Palace 2014-2019] about complicated protection of Data Privacy in Indonesia. Mba Sofie Syarif also respected critics, and even, maybe with laughing, she tweeted [PIC in below] that sometimes her expression [about political situation in Indonesia] isn't the same as the Board Editorial [of KOMPAS]. 

[Prabu Revolusi, after from Metro tv, then CNN INDONESIA —- even in same year with Mas Nezar, now in MNC group, owned by Hary Tanoe. Prabu agree about Mba Sofie argument that sometime political expression from staff is very different than board or owner of media.]

But to be best practice of democracy, everyone must get protection for expression, guarantee of freedom of expression, and freedom of speech. 

Another case, 8 months ago. Months ago, just because of a criticism in social media, some teacher in West Java got fired from his school, also got dog whistling. The teacher, literally hardliner fans of Ridwan Kamil, former West Java Governor [around 55 million population, most populous province in Indonesia], and because his care to ‘Kang Emil’ [popular nickname for Ridwan Kamil], he [the teacher] protest for some issue in his social media. Months before the election of West Java gubernatorial years ago, the teacher handshake with Kang Emil.

Again, as we become more reliant on digital technology to do our daily tasks, which has turned all of us into netizens, it is only fair that we have a say in the making of the rule of law in cyberspace. It is feared that the bill maintains certain provisions that are inimical to online freedom, further intensifying the illiberal nature of digital governance.

This is the case even when the policymakers claimed that the revision was being made to respond to public demands that the current law be made less draconian. For more than a decade, the ITE Law has been a major threat to our civil liberties. It is basically the digital incarnation of the colonial defamation law, known the haatzai artikelen, a rubber law that served the interests of the elite at the expense of the population, particularly those deemed to challenge their political hegemony. Its efficacy as a tool of repression is comparable to the lèse-majesté law in Thailand, one of the countries with the lowest score of online freedom in the region.

two human rights activists are facing years of prison time for expressing their critical opinion of a senior cabinet minister on YouTube. Their case is a textbook example of how the current cyberlaw is nothing but a political weapon to silence critical opinions. We must revoke these kinds of provisions from the law. The policymakers may have decided to revoke the provisions on online defamation from the law, as they will soon be regulated under the newly revised Criminal Code. However, activists are concerned that the bill would still contain some provisions that could be used to restrict freedom of expression in the digital sphere. The problem is that the deliberations were mostly conducted behind closed doors. Neither lawmakers nor government officials, as we have reported earlier, disclosed any details about which provisions were changed in the amendment. All we know is that they changed 14 articles in the law, including the ones used to prosecute online critics, and added five new ones. However, this does not mean that the law would abolish any provisions related to online censorship, given that our cyberspace is still littered with defamatory, inflammatory and pornographic content. Several earlier drafts of the bill contained stipulations expanding the government’s authority in moderating online content deemed unlawful or injurious to public order and terminating internet access to it. The government will also be granted the power to instruct electronic service providers to conduct content moderation for information considered “threatening the people’s safety or public health”. Furthermore, another version of the draft amendment mandates an expansion of the ministry’s civil investigators’ (PPNS) authority to freeze social media accounts, as well as bank and electronic money accounts of sites that violate the law. It remains unclear if there are clear provisions within the bill that could serve as safeguards against abuse. The House of Representatives is expected to approve the revisions in the next plenary session, giving little window for civil society groups to bring their case against the potentially illiberal provisions in the bill.

This is a law-making tactic that we have repeatedly condemned as undemocratic — the policymakers enacting legislation concerning the public without consulting the public. They claimed that they wanted to have “a clearer mind in deliberating the revision”, and would likely repeat the same old suggestion that the public could still challenge the law at the Constitutional Court. It appears that radical pragmatism is so pervasive among public officials that we wonder if we still have a legal avenue to hold our policymakers accountable, even on matters that would directly affect our daily lives. This problem cannot go on. The House must postpone the passing of the new cyberlaw and ensure that the public is adequately consulted concerning its critical substance. We cannot have another illiberal cyberlaw, especially not when our democracy is gradually withering, gradually back to ‘Soeharto 2.0’ version.