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Hate Speech, Disinformation a Challenge for Freedom of Expression in Indonesia – By Joan Barata

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The European Union Delegation to Indonesia facilitated a series of academic events and discussions in April at the Universitas Indonesia and the Universitas Multimedia Nusantara on disinformation, hate speech, ‘fake news’, self-regulation and the role of online intermediaries.

Brussels, May 2018 – Indonesia is entering a very important election period, both at the regional and the national level, that will last until mid-2019. However, the dissemination of accurate and reliable information and the free exchange of ideas and opinions within the public sphere are being threatened by serious distortions. Incitement of hostility and violence, serious expressions of inter-communal hatred, individual persecutions, widespread dissemination of hoaxes and other forms of misinformation are increasingly present in the media, both online and offline. The very intense use of social media platforms by Indonesians makes these types of expression particularly visible and dangerous online.

In any society, such distortions have a clear influence on very sensitive elements: quality and diversity of political discourse, quality of journalism, avoidance of filter bubbles and echo chambers, or prevention of political tribalism and populism. Disinformation can be easily automatized and de-humanized, and messages can take very different, often appealing forms:  fabricated websites, memes, powerful images and infographics.

During these events, it was particularly underscored that the abovementioned problems take different forms, though they tend to be presented together in an undifferentiated manner. For instance, hate speech is scrutinized and specifically banned by international law, whereas disinformation is yet to be properly defined and may refer to many different ways to communicate. In addition to this, the European Union (particularly through its High-Level Expert Group on the matter) has particularly dismissed the use of the term ‘fake news’, as it is inadequate to describe the complexity of the so-called ‘information disorder’and tends to be used by politicians and other public figures to dismiss inconvenient content.

Therefore, it is very important to properly define all the concepts that, according to a recent report by the Council of Europe, should be considered as part of the so-called ‘information disorder’. Particular attention should be given to the idea of post-truth society (Oxford Dictionary’s international word of 2016), and disinformation. The latter would include speech that falls outside already illegal forms of speech (defamation, hate speech, incitement to violence) but can nonetheless be harmful. It is also important to properly re-define and broaden the notions of journalism and media, by including phenomena such as new audio-visual media (in line with the regulation of audio-visual media services in the European Union), or citizen journalism.

Although a proper media legal framework is always needed (in line with international standards), relying on limiting and sanctioning measures may pose serious threats to freedom of expression. During the mission, academic audiences were presented with a complete overview of the international legal standards to be taken into account when considering the abovementioned issues. Freedom of expression and freedom of information are two basic human rights which enjoy the highest level of protection and promotion within the framework of the EU legal system (article 11 of the EU Charter of Fundamental Rights). All EU member states are parties to international and regional legal instruments recognizing and protecting such rights, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Not only are freedom of expression and freedom of information fundamental individual rights, but the existence of free, diverse and independent media as well as, more generally, an open and pluralistic flow of information, ideas and opinions is a basic pre-condition for a robust, democratic and diverse society. Therefore, limits to freedom of expression need to be foreseen and applied in a strictly limited manner.

In line with these principles, beyond legislation and regulation, disinformation needs to be tackled using an array of measures including the involvement of third-party fact-checking organizations, the reinforcement of digital literacy programs and initiatives, and the improvement of journalistic professionalism and media ethics. A key element in this area is the role of self-regulation, as well as a proper understanding of the position and responsibilities of relevant intermediaries, such as telecom operators, search engines, web portals, social media, software and application providers, and terminal suppliers. It is thus particularly relevant to pay attention to the initiatives being taken at the level of the European Union, aiming at increasing the role and responsibilities of intermediaries without introducing, at the same time, liability provisions that would be against general EU and international law principles. Special reference needs to be made, with regards to such efforts, to the Declaration of the European Commission on “Tackling Illegal Content Online”, as well as the Code of Conduct on Countering Illegal Hate Speech Online, signed between the European Commission and Facebook, Microsoft, Twitter and YouTube. The main aim of both instruments is to raise awareness with and involve online companies, as well as to engage civil society and users in the task of dealing with illegal content online without imposing excessive restrictions to the free flow of ideas and opinions.

Dr. Joan Barata is an international expert in freedom of expression, media freedom and media regulation. He has been the Principal Adviser to the Representative on Freedom of the Media at the Organization for Security and Cooperation in Europe (OSCE).  Dr. Barata is an affiliate to the Center for Data and Communication Studies at the Central European University and the Centre for Internet and Human Rights at Europa University Viadrina. Before that he was a Professor of Communication Law and Vice Dean of International Relations at Blanquerna Communication School (Universitat Ramon Llull, Barcelona). He was also a Professor at the University of Barcelona, the Open University of Catalonia and the Universitat Pompeu Fabra (2010-2011), as well as visiting scholar at the University of Bologna (Italy) and the Benjamin N. Cardozo School of Law (New York).
His areas of expertise include topics such as freedom of expression, media regulation, public service broadcasting and political and legal media transitions. He has provided assistance to several institutions and international organizations (Council of Europe, OSCE, Organization of American States, UNESCO, etc.) regarding these issues in countries such as Thailand, Morocco, Tunisia, Lebanon, Jordan, Albania, Hungary, Central African Republic, Liberia, Ukraine, Moldova, Dominican Republic, Colombia, Perú, Ecuador and the United States.  He also has a strong regulatory experience as Head of President’s Cabinet and Secretary General of the Catalonia Audiovisual Council and member of the Permanent Secretariat of the Mediterranean Network of Regulatory Authorities.