Is LGBT Social Media Activity Breaking ITE Law in Indonesia?

Murry Darmoko Moersidin

Law Faculty, University of Surabaya Bhayangkara, Jalan Ahmad Yani 114, Surabaya, Indonesia

Keywords:

LGBT, Social Media Activity, ITE Law

Abstract:

LGBT social media activity is a new anxiety in Indonesia. The law on LGBT and its activity does not yet exist,

but LGBT people do live in the community. Most people think LGBT is a sin and others consider it a human

right. The dissemination of LGBT activity is done through social media. Two problem statements: Does

LGBT social media activity violate the ITE Law and what solution can be used to overcome LGBT social

media activity? Legal sociology is used as an approach and qualitative as the method. Sources of research

: ITE Law, Fatwa MUI, Social Media relating to LGBT and news media. The results : LGBT social media

activity is not breaking the articles of ITE Law but can be overcome by the MUI Fatwa number 57 of 2014

as a solution. The discussion was divided into the application of the Fatwa from rehabilitation to the death

penalty. Conclusions, LGBT social media activity in cyber space are things that are similar to the real life, can

be punished if the MUI fatwa number 57 of 2014 is implemented. Impact for the government to immediately

issue a law on LGBT.

1 INTRODUCTION

LGBT and its social media activities are anxieties in

Indonesia. Anxiety is divided into two, ﬁrst, when a

behavior is claimed as a sin or a violation or crime

cannot be punished because there is no written regu-

lation from the state, LGBT in Indonesia is one that

is claimed to be a violation or a crime. Second, when

the written regulations exist, violations or crimes are

still violated, such as corruption crimes (Darmoko,

2018) either carried out alone or in congregation (Ri-

ana, 2019).

LGBT Indonesia’s social media activities are

crowded in cyberspace. Social media accounts like

Facebook, Twitter and Instagram provide freedom

for LGBT Indonesia to communicate and ”recruit”

LGBT members in their activities. Facebook, Twitter

and Instagram are social media that provide access to

signiﬁcant LGBT developments. Through these three

social media, LGBT people socialize and communi-

cate between old members and new members. I do a

search on Facebook, if the word ”LGBT” is written in

the choices of people, names appear that exist with

LGBT endings or preﬁxes from various countries.

And the words ‘LGBT’ are written in groups’ choices

so that dozens of LGBT groups emerge. In Twitter

and Instagram, the search term ”LGBT” is also con-

tained in dozens of entries (Darmoko, 2018). Like

an iceberg, LGBT social media activities continue to

show developments that need attention from all par-

ties involved, especially the government and scholars.

This is coupled with the regulations issued by Brunei

and Taiwan that are in opposition. Brunei executes

LGBT people by stoning (Saputra, 2019a) and Taiwan

legalize same- sex marriage (Saputra, 2019b). I am

convinced by the facts of the information that I have

obtained that social media plays an important role in

the formation of a statutory regulation.

In Indonesia, the state has established an ITE Law

to regulate cyberspace but has not yet determined the

status of LGBT and its social media activities. The

two problem statements that I look at need to be stud-

ied based on the absence of regulations or the vacuum

of legislation: ﬁrst, does the LGBT social media ac-

tivity violate the ITE Law and secondly, what solution

can be used to overcome LGBT social media activity?

The research approach is carried out with a legal

sociology approach with the application of directly re-

lated theories. The choice of legal sociology is based

on two things, ﬁrst, how strong the dominance and

inﬂuence that the law has on society or second, vice

versa. Sociology has elements: individuals, groups,

society and has three key words: dominance, inﬂu-

ence and dependence. The legal sociology approach

is used in an effort to ﬁnd answers to the research

problem formulation. The Law has three key words:

regulating, binding and sanctioning those who violate

Moersidin, M.

Is LGBT Social Media Activity Breaking ITE Law in Indonesia?.

DOI: 10.5220/0009103101830186

In Proceedings of the Second International Conference on Social, Economy, Education and Humanity (ICoSEEH 2019) - Sustainable Development in Developing Country for Facing Industrial

Revolution 4.0, pages 183-186

ISBN: 978-989-758-464-0

183

(Darmoko, 2017). The law referred to in this study

can be interpreted as a written regulation or as peo-

ple who make or implement regulations (Darmoko,

2019).

I use the Social Deﬁnition Theory in this study.

This theory reveals that individual factors are more

dominant and compelling in behavior and actions

towards Social Institutions, Social Norms, Social

Classes. When applied, LGBT dominates Social In-

stitutions, Social Norms and Social Classes as evi-

denced by the freedom to express their identities on

social media and programs they carry out in the com-

munity, such as the Transvestite contest (Darmoko,

2017).

2 METHOD AND MATERIALS

I use qualitative methods in this study based on the

ﬂexibility of this method: interpretations that can

change at any time according to the data obtained.

Uncertainty is the advantage of this method, so that

every time can change in its conclusions. And of

course, the interpretation of the materials that I have

obtained today is based on the legal sociology ap-

proach as well as the locus and tempos that I limit to

research sources, so that it certainly can be different

from other researchers whose interpretations differ.

Research locus is LGBT Indonesia with the social

media activities they do. Tempos research is since

2014 until this paper was written. The 2014 elec-

tion was based on the issuance of the MUI Fatwa on

LGBT. It should be noted that the fatwa does not bind,

regulate and impose sanctions such as the provisions

of the Act which were formalized by the state.

I obtained research material or sources from two

types of sources, which usually consisted of four

sources. I omitted interviews and observations as

sources of research on the grounds of limited time and

funds that I had. I obtained research material from

documents and news media and social media.

The source document consists of two documents:

ITE Law and MUI Fatwa Number 57 Year 2014

which are directly related to this research. As for

news media and social media sources, I searched

through the internet by entering keywords related to

LGBT. The document of the ITE Law and the Fatwa

of the MUI are the main sources of research because

the search for sanctions or violations of LGBT or not

is contained in these two documents.

The articles of Law Number 19 Year 2016 con-

cerning ITE which are directly related to criminal

sanctions are: (1) Violating morality in article 27

paragraph 1 is punished with article 45 paragraph 1

= maximum imprisonment of six years and a maxi-

mum ﬁne of one billion rupiah, (2 ) Gambling in 27

verses 2 is punished with article 45 paragraph 2 = im-

prisonment for a maximum of six years and a max-

imum ﬁne of one billion rupiah, (3) humiliation or

defamation in article 27 paragraph 3 punishable by

article 45 paragraph 3 = imprisonment of at most four

year and a maximum ﬁne of seven hundred ﬁfty mil-

lion rupiahs, (4) extortion or threats in article 27 para-

graph 4 punishable by article 45 paragraph 4 = maxi-

mum imprisonment of six years and a maximum ﬁne

of one billion rupiah, (5) dissemination of false news

and misleading results in consumer loss in article 28

paragraph 1 punished by article 45A paragraph 1 =

imprisonment of a maximum of six years and a max-

imum ﬁne of one billion rupiah, (6) dissemination of

information to cause hatred or permu suhan SARA in

article 28 paragraph 2 was punished with article 45A

paragraph 2 = imprisonment for a maximum of six

years and a maximum ﬁne of one billion rupiahs and

(7) threats of violence or scare intended personally in

article 29 punished with article 45B = the most im-

prisonment four years and a maximum ﬁne of seven

hundred ﬁfty million rupiah (Presiden RI. Undang-

Undang Nomor 19 Tahun 2016 tentang ITE, 2016).

MUI Fatwa Number 57 of 2014 concerning Lesbi,

Gay, Sodomy and Imbination consists of several

parts: First, General Provisions, in this fatwa what

is meant by: (1) Homosex is a person’s sexual activ-

ity carried out against someone who has the same sex,

both men and women, (2) Lesbi is the term for sexual

activity carried out between women and women, (3)

Gay is a term for sexual activity carried out between

men and men, (4) Sodomy is a term for sexual ac-

tivity against syar’i law by intercourse through anus

or known as liwath, (5) molestation is a term for sex-

ual activity carried out against someone who does not

have a bond between husband and wife such as ﬁn-

gering, squeezing, tinkering, and other activities, both

done to other types and same-sex, to adults and chil-

dren, who are not justiﬁed syar’I, (6) Hadd is a type

of punishment for criminal acts whose forms and lev-

els have been determined by Nash, (7) Ta’zir is a type

of punishment for a crime whose form and level are

handed over to Ulil Amri (the party authorized to de-

termine the sentence).

Second, the legal provisions are: (1) Sexual rela-

tions are only permitted for someone who has a hus-

band and wife relationship, namely a marriage and

male partner who is legally legitimate, (2) Sexual ori-

entation towards same sex is a disorder that must be

cured and aberration (3) Homosexuality, both lesbian

and gay is illegal, and is a form of crime (jarimah), (4)

Homosexuals, both lesbian and gay, including bisex-

ICoSEEH 2019 - The Second International Conference on Social, Economy, Education, and Humanity

184

ual, are subject to hadd punishment and / or ta’zir by

the authorities, (5) Sodomy is haraam and is a cruel

act that brings great sins (fahisyah), (6) The sodomy

perpetrator is subject to ta’zir punishment which is

a maximum sentence of death, (7) Homosexual ac-

tivities other than by sodomy and the culprit is sub-

ject to ta’zir punishment, (8) sexual abuse activities,

namely the release of sexual nasfu such as ﬁngering,

squeezing, and other activities without a proper mar-

riage bond h, what is done by someone, whether done

to another type or same sex, to adults and children

is illegitimate, (9) The perpetrators of revocation as

referred to in number 8 are subject to ta’zir punish-

ment, (10) In the case of victims of crime (jarimah)

homosexuality, sodomy, and molestation are children,

the perpetrators are subject to punishment until the

death sentence, (11) Legalizing same-sex sexual ac-

tivity and other deviant sexual orientations is haram.

Third, Recommendations for: (1) DPR-RI and the

Government are asked to immediately compile legis-

lation that regulates: (a) not legalizing the existence

of homosexual behavior, both gay and other, as well

as other communities that have a deviant sexual ori-

entation; (b) severe penalties for sodomy, lesbi, gay,

and other deviant sexual activities that can function

as zawajir and mawani ’(making the perpetrator de-

terrent and those who have not yet done so are afraid

to do so); (c) include deviant sexual activity as a pub-

lic offense and constitute a crime that deﬁles human

dignity; (d) Preventing the development of deviant

sexual activities in the community through socializa-

tion and rehabilitation, (2) The government must pre-

vent the widespread deviation of sexual orientation

in the community by conducting rehabilitation ser-

vices for perpetrators and accompanied by strict and

strict law enforcement and (3) Government may not

acknowledge same-sex marriage and (4) the Govern-

ment and the community not to allow the existence of

homosexual, sodomy, sexual abuse and other deviant

sexual orientations to live and grow in the commu-

nity (Fatwa Majelis Ulama Indonesia. Lesbian, Gay,

Sodomi, Dan Pencabulan, 2014).

3 RESULTS

There are two research results. First, legally for-

mal, LGBT People and their social media activities

cannot be punished by criminal sanctions through the

application of the ITE Law, because not even one ar-

ticle from article 45 to article 45B can be applied to

them. The moral article in article 27 has diverse inter-

pretations as well as the community’s pro-contra and

law on LGBT status. Second, LGBT can be given so-

cial religious sanctions based on the 2014 MUI fatwa

number 57. Virtual analogy with real nature with

strong evidence can be applied to LGBT cases and

social media activities, because it is the same perpe-

trator.

4 DISCUSSIONS

In this discussion there were two conﬂicting opin-

ions, one pro and the other contra, especially against

the application of penalties for LGBT and its social

media activities (Wallace, 2019). Pro LGBT states,

during the absence of the Law on LGBT, there is also

no criminal sanction for LGBT. They use the princi-

ple of legality (no penalty as long as there are no writ-

ten rules) as a basis for justice and legal transparency

in Indonesia. The principle of legality is an initial

requirement in determining law and justice in soci-

ety (Hasyim, 2019). LGBT rights to life are human

rights. If you can choose, the views of the pros want

that every LGBT has the right to get rehabilitation in

overcoming LGBT problems (Fagan, 2019).

For those who are contra, LGBT is a sin and crime

that was set in the course of human history and re-

ligion which is based on the arguments of God and

Prophethood (A.L., 2018). Sin and crime in religious

beliefs must be given sanctions, ranging from rehabil-

itation to the death penalty (Byrnes, 2019), as stated

by the MUI Institution. But this fatwa cannot be ap-

plied nationally because the deﬁnition of fatwa is the

answer to the question. This fatwa has no power to

regulate, bind and sanction. Fatwa is only a libera-

tor of sins for Indonesian clerics, because the law as a

written regulation or law maker / executor (the Presi-

dent and parliament) alone can change the fatwa into

Law.

CONCLUSIONS

I conclude two things, ﬁrst, LGBT people and

their social media activities do not violate the ITE

Law even though in the pros and cons of LGBT status

it becomes a gray matter and this is troubling in terms

of humanity, both for LGBT itself and the community.

Second, the handling of LGBT and all its activities by

the government, as an impact, can be done by mak-

ing the MUI Fatwa number 57 of 2014 as a Statute or

Law by moderating the application of appropriate and

gradual penalties.

Is LGBT Social Media Activity Breaking ITE Law in Indonesia?

185

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