One of the Petitioners’ attorneys Imam Nasef delivering the subjects of the petition in the preliminary examination hearing of the judicial review of Law No. 32 of 2002 on Broadcasting, Monday (22/6) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary judicial review hearing of Law No. 32 of 2002 on Broadcasting on Monday afternoon (22/6/2020). The Petitioners for case No. 39/PUU-XVIII/2020 are PT Visi Citra Mitra Mulia (Inews TV) represented by executive director David Fernando Audy and director Rafael Utomo (Petitioner I) as well as PT Rajawali Citra Televisi Indonesia (RCTI) represented by directors Jarod Suwahjo and Dini Aryanti Putri (Petitioner II). Their legal team is Taufik Akbar and other attorneys. 

The Petitioners requested a material review of Article 1 number 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." 

The Petitioners argued that the provision of Article 1 number 2 of the Broadcasting Law have caused constitutional damage for them because it caused unequal treatment between the Petitioners as conventional broadcasters using radio frequency and broadcasters using the internet such as Over The Top (OTT) services.

"Because there is no legal certainty whether internet broadcast such as the a quo OTT services falls under broadcasting as regulated in Article 1 number 2 of the Broadcasting Law or not, so far internet broadcast such as OTT services is not bound by the Broadcasting Law," said Imam Nasef, one of the Petitioners’ attorneys. 

Because internet broadcasters are not bound by the Broadcasting Law, the Petitioners believe it has caused unequal treatment. As a broadcasting guideline, the Broadcasting Law regulates at least six things: (i) principles, objectives, functions, and direction of broadcasting in Indonesia; (ii) requirements for broadcasting; (iii) licensing of broadcasting operations; (iv) guidelines regarding broadcast content and language; (v) broadcast behavior guidelines; and (vi) supervision of broadcasting operations. 

According to the Petitioners, the unequal treatment occurs because the six things regulated by the law only apply to conventional broadcasters such as the Petitioners and do not apply to internet broadcasters who such as OTT services. This distinction caused the absence of a level playing field in broadcasting, which ultimately harmed the Petitioners as conventional broadcasters, both materially and immaterially. 

The Petitioners argue that there is diversification of internet-based broadcasting with the emergence of OTT services that have not been regulated by the Broadcasting Law. The rapid development of the internet has given birth to various kinds of digital platforms known as OTT services that produce output in the form of image, audio, video and/or a combination of these or content/video on demand/streaming (in the Circular of the Minister of Communication and Informatics No. 3 of 2016 they are referred to as Content Services through the Internet). All of these services actually fall under "broadcast" following the definition of broadcast as regulated in Article 1 number 1 of the Broadcasting Law, "Broadcast means a message or a series of messages in the forms of audio, images, or audio and images or in the forms of graphics, characters, be it interactive or not, which may be received through broadcast receiver." 

Accordingly, according to the Petitioners, various OTT services, especially those under content/video on demand/streaming category basically also carry out broadcasting activities, so they should be included as broadcasters. The difference with conventional broadcasting only lies in the transmission method. Conventional broadcasting uses radio frequency, while OTT services uses the internet. 

Therefore, in their petitum, the Petitioners requested that the constitutional justices declare Article 1 Number 2 of the Broadcasting Law unconstitutional and not legally binding insofar as it is not interpreted as "... and/or (ii) an activity to distribute or stream broadcasts using the internet to be received by the public upon request and/or on demand through broadcast receiver" so that it would read, "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; and/or (ii) an activity to distribute or stream broadcasts using the internet to be received by the public upon request and/or on demand through broadcast receiver."

More Details Required 

Panel chairman Constitutional Justice Enny Nurbaningsih advised that the Petitioners elaborated the Constitutional Court’s authorities, from the 1945 Constitution, the Judiciary Law, the Constitutional Court Law, and so on. "Please add the Law on the Formation of Legislation, and then make a conclusion," she said. She also asked the Petitioners to confirm the identity of one of the Petitioners who is an Australian national, to represent a private legal entity.

Constitutional Justice Arief Hidayat requested that phrases to the article be added. "If the petitum is granted by the [justices], will there be no implications for other articles in the Broadcasting Law? Article 1 number 2 of the Broadcasting Law is the core, so please [find out]," he said.

Constitutional Justice Wahiduddin Adams were satisfied with the overall structure of the petition but he advised that the Petitioners elaborate the definition of broadcasting and the laws that regulate it. (Nano Tresna Arfana/ASF/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 06/23/2020