Beyond the Freedom of Expression in the Cyberspace based on Social

Construction of Technology Perspective

Agus Raharjo

, Rini Fidiyani

Department of Criminal Law, Faculty of Law, Jenderal Soedirman University

Department of Law and Society, Faculty of Law, Semarang State University Semarang, Indonesia

{ agus.raharjo007, fidiyani.rini }@gmail.com

Keywords: Social Construction of Technology, Cyberspace, Freedom of Expression, Cybercrime, Anarchy

Abstract: Social construction of technology (SCOT) hold on what known as a reason for accepting or refusing

technology based on social reality. When we are investigating beliefs of technology, all explanations must

be symmetrical. Symmetry creates freedom of interpretation, this means there are various different

interpretation of the meaning of technology among the social groups. On the other word, there is a freedom

in designing towards technical solution. The problems discussed in this article are about freedom of

expression in cyberspace with SCOT perspective. The research is qualitative with empiric law and

technological philosophy approach. The findings obtained are: first, there has been a displacement of the

philosophy from the real world (wild west) into cyberspace (wild web); second, excessive freedom of

expression in the web performed by people or content in Indonesian language are dominated with cases of

fraud, defamation, and crimes against decency; and third, the existing laws have not been able to solve the

freedom of expression completely in cyberspace, which breaks the limit or violates the law. It takes an

understanding of technological philosophy and cyberspace, ethics on using and communicating via the

internet, and in the effort to establish society with good information culture.

1 INTRODUCTION

The state guarantee the freedom of expression for all

citizen freely and responsible (Article 28 jo Article

28E the 1945 Constitution of the Republic Indonesia

jo article 1 paragraph (1) the Law No. 9 year 1998

about the freedom of expressing opinions in public

place). This regulation than confirmed through

Article No. 28F, determined that every person have

the rights to communicate and getting information

for their individual and social community, and have

rights for finding, achieving, holding, saving,

processing, and delivering information by using all

available media. Nevertheless, the given freedom

actually is not in the truly meaning of “freedom”,

because the state gives their limitations. In article

28J of the 1945 Constitution of the Republic

Indonesia set the limits, that is the obligation of

respecting other rights in social life of nation and

state orderly (paragraph (1)) and limitation are set by

the law as in the meaning to guarantee the

recognition and respects through other rights and

freedom and for fulfilling fair demands that

appropriate with moral consideration, religious

value, security, and public orderly in the democratic

people.

The freedom of expression finds their heaven

when the internet as science product attended in

society. Internet becomes media in widest

expressions, cyberspace. The breadth and freedom

found in cyberspace are equal with the wild west

culture from American Western Frontier culture, that

marked by several characteristics such as freedom,

bravery, individualism, persistence, strength,

abundant land, unlimited economy, minimal

government role, and the absence of rules.

The freedom that exists in cyberspace is really

used by netizens to express what has been forbidden

in the real world, even to the extent of madness.

Many countries fail to limit or censor internet

content. Even said by Yen, that the government's

efforts will fail because the operational nature of the

decentralized internet makes it impossible for the

state to become a single controller of activity in

cyberspac. Difficulties in the regulation of

cyberspace are also shared by Lessig and even at the

extreme, Barlow said, the state has no right to

regulate it.

2952

Raharjo, A. and Fidiyani, R.

Beyond the Freedom of Expression in the Cyberspace based on Social Construction of Technology Perspective.

DOI: 10.5220/0009944529522959

In Proceedings of the 1st International Conference on Recent Innovations (ICRI 2018), pages 2952-2959

ISBN: 978-989-758-458-9

The phenomenon of the development of anarchy

in cyberspace must be analyzed in a proportional

framework, must look at technical and social entities

that are placed in a single analytical framework

(mutual shaping). The study of the relationship

between technology (technical entities) and society

(social entities) or commonly referred to as social

studies on technology involves the disciplines of

sociology, anthropology, history and technological

philosophy. The many fields of science involved in

this issue indicate that technology is not a single

phenomenon.

A fact that social change and technological

change occur simultaneously and mutually influence

(mutual shaping) to form a co-evolutionary process.

This condition causes efforts to understand one

requires understanding on the other. The focus of

this study is the processes that lead to the diffusion

of stable technology, and the social stability that

supports the diffusion. Technology, from the

research phase to development, diffusion in the

community until technology policy is influenced by

the ways in which various agents, related

organizations are organized and interacted.

This paper will analyze the phenomenon of

freedom of expression with law and technological

analysis with a social construction of technology

(SCOT) perspective. The technology that is used as

a medium is not just present, it is also born through

the process of social construction. In the view of

SCOT, reality does not just present itself, it is built

socially, constructed in such a way as to shape the

reality presented before us. There are many

processes to get there and the sociology of

knowledge must analyze the process of occurring.

2 METHOD

This research is qualitative research with normative

and empirical legal approaches to phenomena

related to freedom of expression; as well as

philosophical studies to examine the phenomenon in

terms of technological philosophy. Research

specifications are descriptive. The data used in this

study primary data obtained through observation of

the phenomenon of freedom of expression on the

internet and secondary data on legislation and the

results of previous studies. The data obtained were

analyzed using qualitative analysis.

3 DISCUSSION

3.1 Freedom of Expression Guarantee

in Every Regulation

Normatively, the guarantee of freedom of expression

is in the constitution and various international

conventions. Article 28E of the 1945 Constitution

paragraph (2) determines that every person has the

right to freedom of belief, expresses thoughts and

attitudes, in accordance with his conscience; while

paragraph (3) determines that everyone has the right

to freedom of association, assembly, and issuing

opinions. Then Article 28F determines that everyone

has the right to communicate and obtain information

to develop their personal and social environment, as

well as the right to seek, obtain, possess, store,

process and convey information by using available

channels.

In connection with the issue of freedom of

expression in cyberspace with an internet network,

Article 14 of paragraph (1) and paragraph (2) of Law

No. 39 of 1999 concerning Human Rights needs to

be used as a back in this matter. Paragraph (1) of the

article determines that every person has the right to

communicate and obtain the information needed to

develop their personal and social environment;

whereas paragraph (2) determines that everyone has

the right to seek, obtain, possess, store, process and

convey information by using all types of facilities

available.

Other legislation that should be mentioned in this

issue is Law No. 40 of 1999 concerning the Press

(Press Law), Law No. 14 of 2008 concerning Public

Information Openness (KIP Law), and Law No. 11

of 2008 concerning Information and Electronic

Transactions (ITE Law) jo Law No. 19 of 2016

concerning Amendments to the ITE Law. In the

Press Law, it is determined that the state guarantees

journalistic activities and also determines that the

independence of the press as a human right of

citizens and the national press is not subject to

censorship, banning or prohibition of broadcasting.

The UU KIP regulates the right to freedom of

information that covers public information and

limits the type of public information that can be

accessed on the basis of "propriety and public

interest". In the ITE Law and its amendments, more

regulates the technical aspects of the use of

electronic information and transactions using

computer networks (internet), while those relating to

freedom of expression are more likely to threaten the

use of electronic channels for improper purposes.

Beyond the Freedom of Expression in the Cyberspace based on Social Construction of Technology Perspective

2953

The constitution and other laws also impose

restrictions on the right to freedom of expression. At

the level of constitutional law, this limitation is

permissible, although within the framework of

human rights this limitation causes actually no

freedom which is absolute (non derogable rights), let

alone just freedom of expression. Although freedom

of expression is one of human rights that cannot be

reduced in any circumstances and cannot be

prosecuted on the basis of retroactive law (Article

28I paragraph (1) of the 1945 Constitution joins Law

Article 4 of Law No. 39 of 1999), but this right do

not escape the restrictions also stipulated in Article

28J of the Constitution (2) 1945 in conjunction with

Law Article 70 and Article 73 of Law No. 39 of

1999, which means the derogable rights category.

The restrictions in question are carried out in a

framework to guarantee recognition and respect for

the rights and freedoms of others and to fulfill fair

demands in accordance with the considerations of

morality, religious values, security and public order

in a democratic society. Similar restrictions can be

found in the Press Law, KIP Law, ITE Law, and

other legislation with emphasis on material

information submitted, in addition to violations of

decency, insult or defamation.

When referring to international provisions,

freedom of expression also receives regulatory

guarantees. Article 19 of the Universal Declaration

of Human Rights stipulates that every person has the

right to freedom of opinion and expression which

includes freedom of holding opinions without

intervention and to seek, receive and convey

information and ideas through any media, regardless

of territorial boundaries. Similar provisions can be

found in Article 19 paragraph (2) of the ICCPR,

Article 10 of the European Convention for the

Protection of Human Rights and Basic Freedoms,

Article 13 paragraph (1) of the Convention on

American Human Rights, Article 9 of the calm

African Charter of Human Rights and Population

Rights, and Article 23 of the ASEAN Human Rights

Declaration .

In addition to guaranteeing freedom, some of

these international conventions also provide

limitations that need to be considered for the

countries that ratify them. Article 19 paragraph (3)

of the ICCPR determines that the implementation of

paragraph (2) creates special obligations and

responsibilities, so that they are subject to certain

restrictions in accordance with the law and to the

extent necessary to: a) respect the rights or good

name of others; b) protect national security or public

order or public morals. Similar provisions can also

be found in Article 29 paragraph (2) of the Universal

Declaration of Human Rights, Article 4 paragraph

(1) ICCPR (specifically for countries in an

emergency), Article 20 paragraph (1) ICCPR

(prohibition of propaganda), Article 20 paragraph

(2) (specifically for prohibition related to ethnicity,

religion, race, and groups), Article 10 paragraph (2)

European Convention on Protection of Human

Rights and Basic Freedom, Article 13 paragraph (2)

American Convention on Human Rights, and other

articles at similar conventions.

Actually, these various rules are enough to

uphold the rights of citizens to express or express

what they want to convey. The presence of the

internet that causes residents to find the right place

to express what is taboo in the real world.

Cyberspace with its characteristic characteristics is

the right place to realize the freedom guaranteed by

the constitution, even tends to be wild. This is

inseparable from the weakness of law enforcement

in cyberspace, and of course the structure and

infrastructure of cyberspace that is built supports

this.

3.2 Social Construction of Technology

Understanding

Multidisciplinary studies on technology and society

or that are often associated with disciplines of

science and technology and communication studies

produce three theories or models of technological

and community co-evolution. All three theories are

according to W.E. Bijker is a technology network

theory, social construction of technology and actor

network theory. There are two major categories in

this sociotechnology theory review, namely

descriptive theory and critical theory. Descriptive

theory seeks to place the definition and substance of

technology - how technology appears, changes and

of course its relationship with humans or the social

environment. More specifically, this theory seeks

more broadly to see the autonomy of technology and

how the power of technology determines social

structure and human behavior. SCOT is in this

theory category. Critical theory often takes

descriptive theory as a foundation and articulates

attention and questioning in what ways can change

the relationship between humans and technology.

SCOT was pioneered by W.E. Bijker and Trevor

Pinch in the mid-1980s whose development was

inspired by constructivism in sociology of science

knowledge. For Berger and Luckmann, social reality

is built socially and the sociology of knowledge

must analyze the process of doing so. Reality is

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defined as a quality contained in the phenomena we

recognize as having a being that is independent of

our own will (we cannot exclude it with wishful

thinking), while knowledge is defined as the

certainty that the phenomenon the phenomenon is

real and has specific characteristics. In short, Berger

and Luckmann said that there has been a dialectic

between individuals who create society and society

that creates individuals. This dialectical process

occurs through externalization, objectivation and

internalization.

Regarding the issue of social construction in

technology, Philip Brey said that "Social

constructivist approaches are currently influential in

both science studies. The label "social

constructivism" is a sociological approach in science

and technology studies”. In the view of SCOT,

scientific knowledge and technology are the results

of the construction process and social negotiations

that are driven by the interests of the participants

involved. The adherents of this theory argue that

technology does not determine human behavior, but

human behavior shapes technology. They also argue

that the way in which technology is used cannot be

understood without understanding how technology is

embedded in its social context.

This understanding showed that SCOT is a

theory that showed how social strength in designing

and developing technology. Their social world

directs actors in interpreting expected technological

goals and their use when requests for technological

design and development are placed differently. The

deterministic argument of technological economists

says that technology develops following certain

lanes and this lane can be predicted or at least

identifiable. For Bijker and Pinch, this thesis is too

far-fetched because the development of technology

moves uncertainly and depends on complex social

factors. If technology changes, then there are

external factors that encourage it to change.

SCOT laid on four key component of SCOT’S

conceptual framework, are : first, interpretative

flexibility: ”Technological artifacts are culturally

constructed and inter-preted…, by this we mean not

only that there is flexibility in how people think of

or interpret artifacts but also that there is flexibility

in how artifacts are designed;” second, relevant

social groups are the embodiments of particular

interpreta-tions: “all members of a certain social

group share the same set of meanings, attached to a

specific artifact; third, closure and stabilization:

when the relevant social group has reached a

consensus; and fourth, wider context: “the

sociocultural and political situation of a social group

shapes its norms and va-lues, which in turn influence

the meaning given to an artifact”

SCOT first adheres to what is understood as an

excuse to accept or reject technology based on social

reality. According to SCOT it is not enough to

explain the success of technology by saying the best,

but a researcher must see how the best is defined and

who defines it. Every argument (social, cultural,

political, economic, like engineering) is treated

equally. When investigating trust in technology, a

researcher must be in the same position between

truth and justice, and all explanations must be

symmetrical, unbiased.

Symmetry creates interpretative flexibility. This

means that there are various and different

interpretations of the meaning of technology among

social groups. Because each social group has a

different meaning about technology, they also have

differences in constructing technology. In other

words, there is freedom in designing towards

technical solutions.

The results of the controversy process and

mapping strategy around technological change are

stabilization of a technology. Technology

stabilization implies that the contents of technology

can be revealed and thus can be determined how the

technology can function in society. Some social

constructors including SCOT adherents show that

this stabilization is achieved by the agreement or

settlement between different social groups that

produce the same interpretation of technology.

3.3 Freedom of Expression in the

Perspective of SCOT

Freedom of expression that goes beyond that limit

can occur because the perpetrators exploit the

weaknesses that exist in both and certainly the right

way to treat it also through these two pathways, by

strengthening one of them or a combination of both.

As an example of one form of freedom of expression

called hate speech, whether intended or religious,

racial, ethnic or class background. The competitive

atmosphere of various religions in increasing the

number of people as well as the affairs of the choice

of regional heads seems to be the background that

dominates social media today.

The word "hate speech" is often translated as

"ujaran kebencian." There are two terms that are

often used in international human rights law, namely

"incitement" (incitement of hatred) and "hate

speech". The UN Human Rights Committee often

uses the term incitement. In practice, there is indeed

a difference between experts and the legal system of

Beyond the Freedom of Expression in the Cyberspace based on Social Construction of Technology Perspective

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the country, some prefer the words themselves, some

see their impact on humanity and human existence,

and some see the impact on others who are called

out to hate speech.

The point of mention of hate speech in the

human rights framework lies in three rights

discourses, namely: a) freedom of religion or belief;

and b) freedom of expression and opinion, c) racial

and ethnic protection. Through the International

Covenant on Civil-Political Rights and a number of

other international documents, the global community

has agreed on the limits of the two rights, so that

restrictions on a right (expression and opinion) to

protect certain rights (religious freedom) should not

be seen in a dichotomous framework.

The right to religion and belief is a basic right

that is protected, even including one of the rights

that cannot be restricted in any situation (non

derogable rights) as stipulated in Article 28I

paragraph (1) of the 1945 Constitution and Article 4

of the ICCPR. This is different from the right to

expression and opinion which are not absolute and

can be limited. Restrictions on the right to

expression and opinion based on the opinion of the

UN Human Rights Committee can be done to

respect and maintain the reputation of others,

namely someone who is individually or part of a

community, such as religion or ethnicity.

In connection with this hate speech, the criminal

law generally regulates it in Article 310 paragraph

(1), paragraph (2), Article 311 paragraph (1) of the

Criminal Code. However, the articles are more

related to attacks on individuals, individual nature,

whereas in hate speech, especially religion offences,

attacks are aimed at all people from one religion, so

that the number of victims is mass. Moreover, these

articles are not related to the use of internet media

for the purpose of their crimes, although they can be

forced by interpretation, but it will feel awkward.

Arrangements related to hate speech using the

internet are in Article 28 paragraph (2) of Law No.

11 year 2008 concerning Information and Electronic

Transactions. Even so, the perpetrators of

disseminating hate speech on the internet still freely

express their hatred by using fake accounts so that it

is difficult to detect and be arrested for processing in

the court.

Interaction and reaction on the internet in

cultural studies is called cyberculture. Researcher of

cyberculture - Sherry Turkle - conducts studies

relating to the relationship between humans,

computers, and personality. Computers, said to be

modern meta-narration, the story of how work was

made to be more concise and dancing, and in the

postmodern period, computers were able to create a

simulation culture. In this simulation culture, the

construction of the modernist ideology of computers

began to shift, even giving a way to think more

concretely. According to him, in the world of

simulation, identity can melt and become multi-

identity. The internet is the most explicit example of

multi-personality. Cyberspace allows users to use

the identity they want, and people can celebrate

freedom in the world of anonymity. Cyberspace is a

self-laboratory that characterizes postmodern life,

self becomes self-fashion and self-create.

Regarding the behavior of netizens, studies from

Erik Qualman seem to fit them. According to him,

there were two impacts on netizens as a result of the

use of social media, namely preventive behavior and

braggadocian behavior. Preventive behavior is

described as live your live as if your mother is

watching. People who are in this category are

individuals who are always careful in posting status,

uploading pictures or writing or sending news. They

always think about what is sent through social media

because they realize the whole world is

understanding them. Braggadocian behavior, derived

from the word "Braggart" which means a liar or a

liar. People who fall into this category are very often

status updates, by telling them that they are doing

something cool, with a narcissistic style in places

that they think are worth knowing.

Qualman also explained that with the existence

of social media, the death of social schizophrenia

will soon arrive. Social Skizophrenia is someone

who behaves differently according to the place

where he is. For example, he will look diligent,

diligent, and considerate in the office, but when he is

at home he becomes lazy. Qualman argues that

thanks to social media, one can no longer pretend to

be someone else and has a different personality in a

different place. The status written through being sent

to social media shows who he really is.

There is a paradox in the opinion of both. If

Tukle emphasizes on anyone can be anything,

including stating himself that is different from what

is actually with the identity that exists cyberspace,

while Qualman actually argues someone can be seen

who is actually his behavior from the status made on

social media. Turkle emphasizes lies according to

the identity built in cyberspace. Qualman sees social

media as a way of seeing someone's honesty through

a written status, even though his identity can be

different from the real one.

At this point, the problem is with the identity of

someone who has access, interacts with others

through involvement in a particular community.

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Identity in the old sense (in real life) is understood

as essentialism, as what is inherent in us from birth,

is something that is stable. In a new concept, identity

is understood as something that is not fixed, does not

integrate completely, has no origin, and so on. In

particular, the shift in theory is the impact of

postmodernism and poststructuralism which

questions and continues to sharpen our way of

thinking about who we are. Hall acknowledged this

and proposed a change of 'identity', which was seen

as full of the old paradigm, to be 'identification'. The

new term implies the existence of a process,

diversity, and construction that someone's

identification is made, mobile and diverse. This

understanding is more clearly seen when associated

with technology, in this case cyberculture that has

become so integrated in our lives. Thus, self or fluid

and fragmented individuals have the capacity to

form themselves, shape and reorganize elements of

identity.

This issue of identity becomes important,

because by hiding this identity one can become and

do anything. Identity in cyberspace is ambiguous,

and because of that he can do anything in ambiguity.

Because these netizens maintain their cyber identity,

any restrictions imposed by the state are always

opposed. One of the principles of the seven

principles of cyberspace is the principle of personal

visibility. In this principle, cyberspace users should

be seen, at some level, by other users (but we should

also be able to choose who is visible or invisible to

us). This principle correlates with a figure called an

avatar, a form of self-representation in a virtual

world. This is made possible by the principle that

applies in cyberspace that our identity does not have

a body. The body of cyber or cyber body discusses

things about the existence of entities that are

represented, among others, by avatars. There are

four important things in the cyber body:

 Cyberspace frees the body from its biological

basis and allows new freedom, including the

freedom to experiment with aspects of personal

identity, especially gender;

 The body in cyberculture centers on the

combination of bio body and technology.

Examples are cyborg and post human, which

are not only considered productive but can also

be a source of problems;

 Cyborg is a cybernetic organism which is a

combination of machines and organisms, the

creation of society as the creation of fiction.

The cyborg is also said to be the creation of a

world of "post-gender" that is not related to the

sex category;

 The post-human body (the symbiosis between

humans and technology) is said to overcome

physical limitations through the use of artificial

organs, so that it is also called the first step in

the post-evolution era

Seeing and considering some of the above, it can

be seen that the reasons for the emergence of

expressions of freedom that exceed the limits can be

seen. Identity that cannot be precisely identified in

cyber allows one to be anyone and say whatever

they want without being constrained by culture or

ethics in the real world. Against the phenomenon of

freedom of expression that goes beyond that limit, in

fact the victims are not only the intended person, but

all those who feel or involve themselves in the issues

mentioned by the avatar. Victims in this terminology

are widespread and may even be abstract. Such

victims if there is no channel to restore it, can

become fire in the husk and lead to social unrest, not

only in cyberspace, but can also spread to the real

world.

In the context of SCOT, the birth of the internet

cannot be separated from the conditions of the cold

war between the United States and the Soviet Union

at that time. Concerns about saving important data as

a result of war are more prominent than making

them a means of expression and democracy. In other

words, actually the birth of the internet has been

constructed in such a way for a particular purpose

and this shows that technology is not neutral. Along

with the development of the situation, where the

cold war was over, technology (the internet)

collaborated with capitalism and made the internet a

means for various things, from public affairs to

private. This is what SCOT says is the result of

social negotiations between the actors involved,

namely the technologists and capitalists.

The process of social construction of the internet

continues to evolve along with the interaction

between technologists and social forces in

developing technology. The results of this

interaction ultimately shift the goal of the creation

and development of the internet, becoming a channel

for advancing democracy and the means to realize

freedom of expression. It cannot be denied that

social groups that have that power have freedom of

interpretation, so that there will be various

differences in interpretation of technology.

However, there are technical solutions to overcome

these differences in interpretation through

Beyond the Freedom of Expression in the Cyberspace based on Social Construction of Technology Perspective

2957

technological stabilization, so that it can be

determined how the technology functions in society.

When considering this thought, the question is

whether the use of the internet to show freedom of

expression (which transcends boundaries) becomes

the goal of technology creation and development or

just the effects that always exist and emerge every

technology product. By considering all possible

interpretations in SCOT, the realization of freedom

of expression that goes beyond that limit has

actually been anticipated by the creator of the

technology, especially if other factors are

considered, namely the birth and development of the

internet in developed countries that have a

democratic life climate. It can also be said that this

internet presence is an attack on a closed system of

government with limited or restricted citizens'

freedom. There have been many examples of how a

regime collapsed due to - one of them - the power of

the internet, like the fall of the New Order regime in

Indonesia.

Through this kind of interpretation, it is

understandable that cyberians at first want the

absence of rules in cyberspace. The rules will only

limit freedom, and with the limited freedom, then

what's the difference with the real world, even

though they are busy migrating to cyberspace hoping

to get freedom that is not found in the real world.

This is the basis of the argumentation from cyberian

and cyberpunk or cyber culture activists. The

internet seems to be an amulet to enter the world that

they believe can provide convenience, pleasure and

happiness.

Such interpretation in SCOT, it is possible to

remember in simmetry, technological change is

explained by reference to social practices, especially

in the process of interpretation, negotiation and

closure by actors and different social groups.

Therefore, the change from the purpose of creation,

development and utilization is inseparable from the

negotiation process between actors or social groups

or forces who are ultimately able to construct the

minds of internet users to use according to their

desires fulfillment.

4 CONCLUSIONS

Freedom of expression in Indonesia is a basic right

guaranteed by law. In the past, expressions of

freedom were limited, but with the internet, this

freedom even exceeded the limits. In the SCOT

perspective, the existence of technology is not

neutral, and the use of the internet to realize freedom

of expression has been constructed in such a way by

social forces that have interests, be they political,

economic, socio-cultural, or economic. Freedom of

thinking in SCOT causes the process of creating,

developing and utilizing the internet to be known

and criticized in more depth, because what happens

is not only how the socio-technology process creates

the internet, but also how the internet can construct

the human mind.

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