Constitutional Court Puts Procedures on Access Termination by Government
On September 29, 2026, the Constitutional Court of the Republic of Indonesia (the “Court”) pronounced its decision in Case No. 311/PUU-XXIV/2026 (the “Decision”). The case was submitted and examined for judicial review of Law No. 11 of 2008 dated April 21, 2008 on Electronic Information and Transactions as lastly amended by Law No. 1 of 2024 dated January 2, 2024 (the “ITE Law”).
The petitioners Mr. Matthew Febrian Otniel Lambok Hutasoit, S.H., and six other petitioners (the “Petitioners”) sought judicial review of Article 40(2b) of the ITE Law. The Petitioners contend that this provision, which authorizes the government to terminate access to unlawful electronic contents, lacks clear parameters, procedures, and safeguards. As such, the Petitioners view that it is in conflict with Article 1(3), Article 28D(1), Articles 28E(2) and (3), Article 28F, and Article 28G(1) of the 1945 Constitution of the Republic of Indonesia (the “Constitution”).
We set out below the key arguments of the Petitioners and the Decision.
♦ Petitioners’ Arguments
The Petitioners argue that Article 40(2b) of the ITE Law, which reads as follows:
“In carrying out the prevention as referred to in paragraph (2a), the Government is authorized to terminate Access and/or order Electronic System Providers to terminate Access to Electronic Information and/or Electronic Documents that contain unlawful content,”
is unconstitutional on two grounds.
First, the Petitioners state that under Articles 140(1) and (2) of Law No. 20 of 2025 dated December 17, 2025 on Criminal Procedure Code, a blocking measure, which is a temporary measure to prevent access to, use of, or transfer of certain assets, accounts, transactions, or electronic information, requires the approval of the Head of the relevant District Court. In contrast, the ITE Law does not provide for a similar judicial approval or due process mechanism for imposing a blocking measure. According to the Petitioners, this releases the Government’s actions from the judicial control, which is a hallmark of a state based on the rule of law. Therefore, this conflicts with Article 1(3) of the Constitution.
Second, the Petitioners argue that the phrase “unlawful content” is broad and has no clear parameters, so citizens may not know when and by what measure their rights may be restricted. The Petitioners further contend that the access termination without adequate limits may restrict freedom of expression under Articles 28E(2) and (3), the right to information under Article 28F, and the right to feel secure under Article 28G(1) of the Constitution, particularly where the Government is both the criticized party and the judge of the criticism.
Based on the foregoing, the Petitioners primarily request that Article 40(2b) of the ITE Law be declared unconstitutional. Alternatively, they request a conditional interpretation, requiring either (i) the Government to acquire the permission of the Head of the District Court for the termination of the Access, or (ii) a digital notification to the parties affected by the termination of the Access which includes the legal basis and reason for the termination, along with the available legal remedies.
♦ Decision
The Court finds that the authority to terminate access has a sufficiently clear limit, namely any content that is unlawful, given that the Elucidation of Article 40(2b) of the ITE Law defines access termination as blocking measures to access, closing accounts, and/or deleting content. However, the provision contains no procedures that the Government must follow, even though the authority affects the constitutional rights to information, expression, and security. The delegation of further provisions to an implementing regulation under Article 40(6) of the ITE Law does not remove the need for the ITE Law itself to provide certainty. The Court therefore considers that the Government must issue a digital notification or written notice together with the reasons, which balances the right of the public to information free from unlawful content with the protection of rights to distribute information.
Notably, in reaching this view, the Court revisits its earlier Decision No. 81/PUU-XVIII/2020 dated October 27, 2021 (the “Previous Decision”). In the Previous Decision, the Court also reviews Article 40(2b) of the ITE Law prior to its latest amendment. In the Previous Decision, the Court rejects a request to require a written administrative decision before access is terminated, because content on the internet spreads very quickly and such a requirement would hinder the Government’s role in protecting the public interest. The Court also notes that the Government’s actions may be challenged before the administrative court, noting that a digital notification regarding the termination is optional and not mandatory.
In the Decision, the Court shifts from the foregoing position, holding that the Government must issue the notification together with the reasons for termination when exercising the authority, given that the authority restricts constitutional rights and its procedures should be clearly regulated to minimize abuse of power. In light of the foregoing, the Court partially grants the petition by ruling that Article 40(2b) of the ITE Law is conditionally unconstitutional and has no binding legal force unless interpreted as follows:
“in carrying out the prevention as referred to in paragraph (2a), the Government is authorized to terminate Access and/or order Electronic System Providers to terminate Access to Electronic Information and/or Electronic Documents that contain unlawful content after issuing a digital notification or written notice along with the reasons.”
♦ Impact of Decision
The Decision clarifies that the Government’s authority to terminate access may only be exercised after a digital notification or written notice, together with the reasons, is issued. While the Decision does not specify the form, content, or timing of the notification, nor does it require prior court permission, such change should still provide legal certainty to the affected parties by providing transparency.
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com) or Giorgio Alexander William Robot (grobot@aksetlaw.com) for further information.
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