Constitutional Court upholds freedom of expression

The Constitutional Court has taken another step in defense of freedom of expression from the draconian Electronic Information and Transactions (ITE) Law. The court’s decision offers additional assurance of civil liberties following last year’s legislative amendments aimed at addressing the concerns over digital authoritarianism by the government, which was behind the passing of the legislation in the first place.

The court partially upheld a judicial review petition filed by Daniel Frits Maurits Tangkilisan, a resident of Karimunjawa, Jepara regency in Central Java, against an article in the amended ITE Law, which stipulates criminalization of defamation on social media. The article is problematic due to its multiple interpretations, which allow room to public officials to sue critics, as in the case of Daniel.

Daniel, an environmental activist from the Kawal Indonesia Lestari Coalition (Kawali), was previously found guilty by the Jepara District Court for posting a video criticizing the condition of fishponds in Karimunjawa. However, the verdict was later overturned by the Semarang High Court.

The Constitutional Court’s ruling, announced during a plenary session presided over by Chief Justice Suhartoyo on April 29, underscores the importance of protecting public discourse.

In delivering the court’s legal considerations, Justice Arief Hidayat emphasized that expressions of criticism addressed under Article 27A of the 2024 ITE Law should be recognized as legitimate forms of public oversight, correction and input on matters of public interest.

As such, the court ruled that the enforcement of Article 27A must be aligned with Article 310(1) of the Criminal Code, which pertains strictly to defamation of private individuals. In other words, the article may only be applied to defamatory acts targeting individual persons.

Justice Arief also clarified that both Article 27A and its corresponding penalty provision under Article 45(5) are considered complaint-based offenses, meaning prosecution can only proceed if the aggrieved individual personally files a report.

Legal entities such as institutions or corporations, even if allegedly defamed, are not entitled to lodge such complaints in the context of electronic defamation. Only natural persons whose reputations are directly affected may pursue legal action.

To avoid misuse of the term “another person” in Article 27A, the Court affirmed that it must be interpreted to mean individual persons only. Therefore, the provision does not apply where the alleged defamation targets government agencies, identity-based groups, institutions, corporations, professional roles or public offices.

In line with the constitutional guarantee of legal certainty as provided under Article 28D(1) of the 1945 Constitution, the court ruled that Article 27A of Law No. 1/2024 is conditionally unconstitutional unless the phrase “another person” is interpreted to exclude the aforementioned non-individual entities.

With this ruling, the Constitutional Court hopes that the enforcement of the ITE Law will be free from multiple interpretations and no longer misused as a tool to silence critics or restrict citizens’ freedom of expression.

In fact, lawmakers attempted to accommodate public concerns over the ITE Law during its revision last year to address the multiple interpretations of several setups in the law, creating widespread controversy since its first establishment in 2008, and even after its first revision in 2016.

While welcoming the Constitutional Court’s ruling, Muhammad Isnur, the chairperson of the Indonesian Legal Aid Foundation (YLBHI), argued that the Constitutional Court’s decision alone is insufficient.

He noted that the broader legal framework regulating insults against the government and state institutions remains intact, such as in Article 240 of the new Criminal Code. Therefore, Isnur emphasized that the government must understand and adopt the Constitutional Court’s legal reasoning as a standard reference for democratic governance and rulemaking.