Justices hearing the House and the Relevanty party at a virtual plenary judicial review hearing of the Broadcasting Law, Monday (14/9) in the Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—A judicial review hearing of Law No. 32 of 2002 on Broadcasting was held by the Constitutional Court (MK) on Monday afternoon, September 14, 2020 under strict COVID-19 health protocols. The litigating parties joined the hearing virtually. The hearing for case No. 39/PUU-XVIII/2020 had been scheduled to hear the statements of the House and the Relevant Party. 

On behalf of the House, House Commission III member Habiburokhman said that the Broadcasting Law had regulated those who carry out broadcasting in the national broadcasting system pursuant to Article 6 of the Broadcasting Law. The differing activities of conventional broadcasters, which use radio frequency, and over-the-top (OTT) services, which use the internet as well as radio frequency that are not broadcasted simultaneously and synchronously, are irrelevant to the definition of broadcasting.

The House believes that the regulation for TV and radio stations by the government means that the legal frequency domain for broadcasting remains within that frequency range. Any broadcast outside of that range is not regulated in the Broadcasting Law. The new OTT service providers are within that category.

“Provision of OTT services is a business activity that is not exclusive to one service [but] can provide various services, such as sending data in the form of videos, voice recordings, photos, et cetera because it uses the internet. In addition, those who can provide OTT services can be individuals, business entities, legal entities, so OTT services are not included in the national broadcasting system pursuant to Article 1 number 9 of the Broadcasting Law,” Habiburokhman said.

The House is of the opinion that Article 2 number 1 of the Broadcasting Law, which the Petitioners challenges, doesn’t result in unequal treatment as it applies to any agency that broadcast“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” without exception.

The House denied the Petitioners’ claim that the a quo article has caused unequal treatment, citing, “The Petitioners have been given the right or authority in broadcasting based on the a quo article. Therefore, the House believes that the argument that the a quo article has caused unequal treatment is merely the Petitioners’ assumption,” Habiburokhman said before the bench led by Chief Justice Anwar Usman. The House also observed that the Petitioners didn’t specifically explained their perceived constitutional losses.

Ministry of Communication and Informatics’ Circular Letter on Internet Broadcasting

Through their attorney Imam Gozali, PT Fidzkarana Cipta Media (Buruh Online TV) as a Relevant Party stated that Buruh Online TV is an online news portal business entity. They believe that the Petitioners’ petition is closely related to their interest, as they use internet to broadcast news on their website or their channel on YouTube. They stated that the article is tied to the Ministry of Communication and Informatics’ Circular Letter No. 3 of 2016, that intended to regulate internet content by giving OTT service providers enough time to prepare for it. The minister also requested that content providers avoid content that are against Pancasila and the 1945 Constitution or causing conflict.

“If the Petitioners’ petition is granted, it will affect the Relevant Party’s constitutional rights as [they] use internet to broadcast content regarding labor, which millions of workers in Indonesia need,” Gozali said. The Relevant Party also appealed to the Court to reject the petition and urge the Petitioners to participate in the amendment to the Broadcasting Law, which is in the House’s 2020 national legislative program (Prolegnas).

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The Petitioners of 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 peers. They 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."

They argued that the provision of Article 1 number 2 of the Broadcasting Law has caused constitutional damage for them because it has led to 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. 

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
PR: Andhini S. F.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 9/15/2020 11:13 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.