Constitutional Court Interprets “Defamation” and “Hate Speech” in ITE Law
On April 29, 2025, the Constitutional Court of the Republic of Indonesia (the “Court“) rendered its decision towards Case No. 105/PUU-XXII/2024 (the “Decision”). The case was submitted and examined for the 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 petitioner, Daniel Frits Maurits Tangkilisan, M.A. (the “Petitioner”), sought a judicial review of Article 27A in conjunction with Article 45(4) and Article 28(2) in conjunction with Article 45A(2) of the ITE Law. The Petitioner was charged with defamation and hate speech under the aforementioned provisions; however, the Petitioner argues that the provisions were interpreted arbitrarily by the authorities and as such must be considered unconstitutional when used without the proper interpretation.
We set out below the key arguments of the Petitioner and the Decision of the Court.
♦ Petitioner’s Argument
The Petitioner submits the following provisions to the Court for judicial review which contain phrases that the Petitioner deems unconstitutional.
♦ Court’s Decision
Considering the Petitioner’s argument, the Court partially acknowledges the Petitioner’s arguments and ruled as follows:
- that the phrase “another person” stated in Article 27A in conjunction with Article 45(4) of the ITE Law must be interpreted as “another person except for government institutions, a group of people with a specific or particular identity, institutions, corporations, professions, or positions;”
- that the phrase “something” stated in Article 27A in conjunction with Article 45(4) of the ITE Law must be interpreted as “an act that demeans the honor or good name of a person;” and
- that the phrase “without right distributes and/or transmits Electronic Information and/or Electronic Documents which instigates, invites, or influences other persons so as to cause hatred or hostility against certain individuals and/or community groups” stated in Article 28(2) in conjunction with Article 45A(2) of the ITE Law must be interpreted as “only Electronic Information and/or Electronic Documents that substantively contain acts or dissemination of hatred based on a particular identity, carried out intentionally and in public, which pose a real risk of discrimination, hostility, or violence.”
♦ Impact of Decision
The Court’s decision to clarify the aforementioned phrases narrows the scope of the ITE Law by providing a clearer definition of defamation and hate speech. It should also safeguard freedom of expression and establishes clearer guidelines to prevent arbitrary interpretations and potential misuse of the law.
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Mochamad Fatih Satria Kasmaliputra (mkasmaliputra@aksetlaw.com), or Giorgio Alexander William Robot (grobot@aksetlaw.com) for further information.
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