GETPOST.ID, Jakarta – The world’s currently focused on the digital sphere. The flow of information, content, and cross-border interaction has become an inseparable part of modern life. Cyberspace now serves as a key foundation for the global economy and shapes how today’s societies function. Indonesia is no exception to this dynamic, especially as a democratic nation that, in principle, upholds freedom of expression. One of the most prominent regulations in this context is Law No. 1 of 2024 concerning the Second Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (“ITE Law 2024”).
Two Constitutional Court decisions, Decision No. 105/PUU-XXXII/2024 and Decision No. 115/PUU-XXII/2024, offer a more progressive direction for freedom of expression in the digital age. This article analyzes the evolving framework of the ITE Law, particularly the articles considered to potentially suppress freedom of expression, and examines how the two Constitutional Court decisions respond to these provisions.
Under the Shadow of the ITE Law
The Electronic Information and Transactions Law often becomes a hot topic of discussion due to its perceived tendency to “trap” individuals, including two individuals under the initials “DFT” and “JAB”, both of whom are petitioners in the judicial review of the ITE Law 2024.
DFT is an environmental activist who frequently promotes environmental awareness through social media platforms. In short, DFT uploaded a video on Facebook showing pollution at one of the beaches in Karimun Jawa. The video sparked various reactions. In response, DFT made a statement (translated into English):
“Shrimp-brained people enjoy free shrimp while being consumed by shrimp farmers. Basically, these shrimp-brained people are like shrimp livestock themselves. Well-fed, plenty, and regularly—just to be eaten.”
That statement led to DFT being prosecuted under alternative provisions of Article 28 paragraph (2) Jo. Article 45A paragraph (2) or Article 27 paragraph (3) Jo. Article 45 paragraph (3) of Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions (“ITE Law 2016”). The Jepara District Court, through Decision No. 14/Pid.Sus/2024/PN Jpa, found DFT guilty. However, on appeal, DFT was acquitted based on Decision No. 374/Pid.Sus/2024/PT SMG. Despite this, DFT remains concerned that the prosecutor may file a cassation appeal based on Article 27A Jo. Article 45 paragraph (4) and Article 28 paragraph (2) Jo. Article 45A paragraph (2) of the ITE Law 2024.
Aside from DFT, the shadow of the ITE Law also fell upon JAB. JAB is a prosecutor who was reported to the Tapanuli Police Resort for alleged defamation, spreading false news, and/or distributing electronic information containing indecency after criticizing civil servants at the South Tapanuli District Attorney’s Office for using the official vehicle of the Head of the South Tapanuli District Attorney’s Office. In addition, JAB is also known for actively criticizing government policies and governance in the pursuit of eradicating Corruption, Collusion, and Nepotism (KKN), which, according to JAB, puts him at risk of being reported to the police or subjected to criminalization under Article 28 paragraph (3) and Article 45A paragraph (3) of the ITE Law 2024 concerning the dissemination of false information.
DFT and JAB eventually became petitioners in the judicial review of the ITE Law. DFT is the petitioner in Constitutional Court Decision No. 105/PUU-XXXII/2024, while JAB is the petitioner in Constitutional Court Decision No. 115/PUU-XXII/2024.
Judicial Review of the ITE Law: Disputed Provisions
DFT argued that the phrases “another person” and “a certain matter” in the provision of Article 27A in conjunction with Article 45 paragraph (4) of the ITE Law are inconsistent with Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia, as they lack clarity in interpretation and therefore violate the principle of legal certainty. Furthermore, he contended that the formulation “distributing and/or transmitting electronic information and/or electronic documents that are of such a nature … so as to incite hatred or hostility toward individuals and/or certain groups in society based on …” in Article 28 paragraph (2) Jo. Article 45A paragraph (2) of the ITE Law 2024 could indicate that the information distributed and/or transmitted can be anything, as long as it results in hatred or hostility based on specific characteristics. These provisions infringe upon the right to security, the right to be free from discrimination, and the right to equality before the law, rendering them contrary to Article 27 paragraph (1), Article 28D paragraph (1), Article 28E paragraphs (2) and (3), Article 28G paragraph (1), Article 28I paragraphs (2) and (4), and Article 28J paragraph (2) of the 1945 Constitution of the Republic of Indonesia.
On the other hand, JAB challenged several provisions of the ITE Law, including Article 28 paragraph (3) Jo. Article 45A paragraph (3) of the ITE Law 2024 . Yet, the phrase “false news or false information” in Articles 14 and 15 of Law Number 1 of 1946 on Criminal Law Regulations (“Law 1/1946”) was deemed contrary to legal principles and declared unconstitutional by Constitutional Court Decision No. 78/PUU-XXI/2023.
Constitutional Court Decisions No. 105/PUU-XXXII/2024 and 115/PUU-XXII/2024: A Step Forward for Freedom of Expression
The phrase “another person” in Article 27A Jo. Article 45 paragraph (4) of the ITE Law 2024
The phrase “another person” in Article 27A of the ITE Law 2024 is not subject to any limitation in its interpretation. Substantively, Article 27A of the ITE Law 2024 is a transformation of Article 27 paragraph (3) of Law No. 11 of 2008 on Electronic Information and Transactions (“ITE Law 2008”). According to the explanation of Article 27 paragraph (3) of the ITE Law 2008, this provision refers to the offense of defamation as regulated in the Criminal Code. At the time the ITE Law 2008 revised to ITE Law 2024, the 2023 Criminal Code had already been enacted, so the constitutionality of Article 27A of the ITE Law 2024 cannot be separated from Article 433 paragraph (1) of the Criminal Code 2023. The party who may be a victim under Article 433 paragraph (1) of the 2023 Criminal Code is an individual person, thus defamation against a group is not included in this provision. Therefore, Constitutional Court Decision No. 105/PUU-XXXII/2024 declares that Article 27A of the ITE Law 2024 is conditionally unconstitutional insofar as the phrase “another person” is not interpreted to mean “except government institutions, groups with specific or defined identities, institutions, corporations, professions, or official positions.”
The phrase “a certain matter” in Article 27A in conjunction with Article 45 paragraph (4) of Law 1/2024
The ITE Law 2024 removes the provision on insult in Article 27 paragraph (3), leaving only the provision concerning defamation. As such, the phrase “a certain matter” used in the ITE Law 2024, which appears without further explanation or criteria, has the potential to lead to multiple interpretations. This is because it could allow forms of insult that have already been categorized separately to be drawn into the scope of defamation through broad interpretative constructions. Therefore, to ensure legal certainty, Constitutional Court Decision No. 105/PUU-XXXII/2024 declares that Article 27A and Article 45 paragraph (4) of the ITE Law 2024 are conditionally unconstitutional unless the phrase “a certain matter” is interpreted as “an act that degrades a person’s dignity or reputation.”
The phrase “distributing and/or transmitting electronic information and/or electronic documents of a nature that incites, invites, or influences others to provoke hatred or hostility toward individuals and/or certain groups […]” in Article 28 paragraph (2) Jo. Article 45A paragraph (2) of ITE Law 2024
Article 28 paragraph (2) Jo. Article 45A paragraph (2) of the ITE Law 2024 constitutes a material offense, meaning it requires a specific consequence to occur. As a material offense, the consequence element of the act determines the existence of the crime. Thus, the absence of limitations on the form or content of “electronic information and/or electronic documents” means this provision has the potential to be used against neutral expressions or expressions not intended to incite hatred, if the resulting hatred or hostility arises indirectly, through third-party responses. Therefore, Constitutional Court Decision No. 105/PUU-XXXII/2024 declares that the phrase “distributing and/or transmitting electronic information and/or electronic documents of a nature that incites, invites, or influences others to provoke hatred or hostility toward individuals and/or certain groups” in Article 28 paragraph (2) of the ITE Law 2024 is conditionally unconstitutional unless interpreted to mean “only Electronic Information and/or Electronic Documents that substantively contain acts or dissemination of hatred based on specific identities, carried out deliberately and in public, which pose a real risk of discrimination, hostility, or violence.”
The phrase “false news that provokes unruliness” in Article 28 paragraph (3) in conjunction with Article 45A paragraph (3)
Regarding the reinstatement of provisions on false news, despite the fact that the phrase “false news or false notification” as regulated in Law No. 1 of 1946 was found to contradict legal principles and was declared unconstitutional by Constitutional Court Decision No. 78/PUU-XXI/2023, the Court emphasized a key distinction. The 1946 Law focuses on false news that causes unruliness in both physical and non-physical spaces, whereas the ITE Law 2024 emphasizes false notifications that cause unruliness in digital or cyber spaces. Constitutional Court Decision No. 115/PUU-XXII/2024 subsequently declared that the provisions in Article 28 paragraph (3) and Article 45A paragraph (3) of the 2024 ITE Law are conditionally unconstitutional to the extent that the term “unruliness” is not interpreted as a condition that disrupts public order in physical spaces; it does not extend to unrest in digital or cyber spaces.
Conclusion
The Constitutional Court Decisions No. 105/PUU-XXXII/2024 and No. 115/PUU-XXII/2024 mark a significant step in strengthening the protection of freedom of expression in Indonesia’s digital sphere. By conditionally declaring several provisions of the ITE Law 2024 on the grounds that they are vague and infringe upon the right to a sense of security, these rulings limit the potential criminalization of legitimate expression. The decisions affirmed the need for a narrow interpretation of ambiguous terms such as “another person”, “a certain matter,” and “unruliness,” as well as the phrase “distributing and/or transmitting electronic information and/or electronic documents that incite, invite, or influence others in a way that provokes hatred or hostility toward individuals and/or certain groups in society”.
