One of the Petitioners’ attorneys Imam Nasef delivering the revision points of the petition in the judicial review hearing of the Broadcasting Law, Thursday (9/7) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a petition revision hearing of the judicial review of Law No. 32 of 2002 on Broadcasting on Thursday afternoon (9/7/2020). The hearing was presided over by Constitutional Justice Enny Nurbaningsih, along with Constitutional Justices Arief Hidayat and Hakim Konstitusi Wahiduddin Adams.

The Petitioners of case No. 39/PUU-XVIII/2020 had appointed M. Imam Nasef as their attorney. They added articles in the 1945 Constitution, the Constitutional Court Law, the Judiciary Law, Law on the Formation of Legislation, and the Constitutional Court Regulation to the Constitutional Court’s authorities, following the justices’ advice in the preliminary hearing.

They also revised the legal standing of Petitioner II, since one of its representatives is foreign national (WNA) Jarod Suwahjo. “We added a point on the legal standing of Mr. Jarod Suwahjo in that [foreign nationals] may become a [member of the executive board as a] director of finance. We also included the Decision of the Directorate General of Migrant Worker Training and Placement that states that Mr. Jarod Suwahjo is employed by the Principal Petitioner,” Imam explained.

The Petitioners also removed one article from the four articles used as touchstone. They also added an explanation on the convergence of ICT and theories by legal experts, including on progressive law.

Also read: RCTI and iNews Question Regulation on Internet Broadcasting

This case was petitioned by 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 peers. 

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.

They believe that 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. 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." (Nano Tresna Arfana/ASF/NRA)

Translated by: Yuniar Widiastuti

Translation uploaded on 7/10/2020