The Constitutional Court on April 29 handed down a landmark decision; one that could mark a turning point for digital freedom of expression in the country.
The court declared it unconstitutional to prosecute individuals simply for criticizing government institutions, corporations, professions or public officials.
Human rights activists and legal scholars have welcomed the decision as a major step forward in human rights reform. But the question remains: does this ruling truly safeguard the digital rights of Indonesian citizens, or is it merely symbolic progress in a system still riddled with ambiguity?
The court’s ruling hinged on three key points, each targeting the vague and overly broad language found in Articles 27A, 45(4), 28(2) and 45A(2) of Law No.1/2024 which amended Law No.11/2008 on Electronic Information and Transactions (ITE) which are deemed to be contradictory to the 1945 Constitution.
First, the phrase “another person” (orang lain) was clarified to exclude corporations, government institutions, public officials and public figures. In plain terms: criticism of power is no longer criminal by default.
Second, the term “something accusatory” (suatu hal) was declared unconstitutional and void of legal force – unless interpreted strictly as referring to actions that genuinely degrade someone’s dignity or reputation. Viewpoint Every Thursday ADD THIS TOPIC Whether you’re looking to broaden your horizons or stay informed on the latest developments, “Viewpoint” is the perfect source for anyone seeking to engage with the issues that matter most.
Third, the provision criminalizing the online dissemination of material that might incite hatred or hostility was deemed unconstitutional unless narrowly interpreted. According to the court, it must apply only to content that (1) is clearly hate-based, (2) targets specific identities, (3) is intentional and public and (4) presents a real risk of discrimination, hostility or violence. In short: context, intention and identity matter.
In his expert testimony, Herlambang Wiratraman argued that such offenses should be understood as cyber-enabled crimes, not cyber-dependent ones – meaning they exist offline too, and digital platforms are just the medium. He emphasized that hate speech provisions in the ITE Law should not operate in isolation but refer back to Articles 156 and 157(1) of the Criminal Code. Prosecutors, he argued, should focus on proving the actual content (actus reus), the speaker’s intent (mens rea) and the social standing or role of the person making the statement.
According to expert Bambang Harymurti, the original intent of the law was to regulate the technical aspects of electronic information and transactions – not to police speech. But in a last-minute twist, outdated and irrelevant criminal provisions were slipped in, effectively turning the law into a tool for silencing dissent and criminalizing free expression.
A 2024 report from SAFEnet highlights the scale of the problem: 146 cases of digital expression violations were recorded, impacting 170 individuals – most tied to Article 27A. While the motives ranged from personal disputes to political criticism, accusations of blasphemy and economic conflicts, a striking pattern emerged: among the top five complainants were organizations, corporations, political parties and public officials – precisely the actors now excluded from protection under the Court’s latest decision.
From an employee venting about her toxic workplace to a consumer exposing fraud by a car leasing company and a TikToker jailed for reviewing a disappointing apartment he bought – the victims of the ITE Law come from all walks of life. Ironically, Daniel Frits, the very activist who brought the case that led the Constitutional Court to reinterpret the law, nearly became its casualty. His alleged crime? Sharing electronic information in defense of Karimunjawa’s environmental sustainability.
Indonesia has long struggled to protect freedom of expression in the digital space. The ITE Law has frequently been used to criminalize dissent, satire and legitimate criticism, often under vague legal provisions. For years, the state’s approach aligned more closely with regimes that repress rather than protect free speech.
But with the recent Constitutional Court decision, there is a glimmer of change. While we should consider this a turning point – we must also ask: where does Indonesia stand when it comes to regulating online expression?
Freedom of expression (FoE) online is typically governed through three approaches: absolute, proportional and abusive. The absolute model permits unrestricted expression, based on the belief that rational individuals can navigate falsehoods without state interference. No country fully adopts this approach, as it assumes an idealized public immune to harm or misinformation. The proportional approach (which is accepted in most democratic states), recognizes FoE but allows restrictions based on international standards such as the Siracusa and Johannesburg Principles. Limitations must be lawful, necessary and serve legitimate aims such as protecting public order, safety,or others’ rights. Crucially, such restrictions must be clear, proportionate and subject to remedy.
The abusive approach, by contrast, erodes FoE with or without legal cover. Courts also offer little protection; laws are often vague or weaponized – through tactics like SLAPPs – to silence dissent. This model breeds fear, not dialogue. Countries such as China, Russia, the UAE, Myanmar, Laos, Vietnam and Cambodia exemplify this approach. It is open to the public’s criticism in which approach Indonesia falls.
There is no denying that the Constitutional Court’s recent decision is a step forward. In the face of mounting threats to freedom of expression (especially online), it narrows the scope for criminal prosecution against critical voices in civil society.
However, the public should temper their optimism. Major barriers to free expression remain, including the lack of comprehensive anti-SLAPP protections. Without such safeguards, the court’s ruling risks being read narrowly by law enforcement, applying only to the ITE Law while ignoring broader systemic issues.
The Institute for Criminal Justice Reform has raised red flags about the new Criminal Code set to take effect in 2026. Several provisions still threaten free expression: Articles 263 and 264 on “fake news,” Article 433 on contempt (which, like the ITE ruling, should exclude criticism of institutions) and Articles 218 and 219 on defamation of state leaders – all of which risk replicating the very problems the Court sought to correct.
Additionally, the amendment of the Indonesian Military (TNI) Law brings controversy because of an article that expands the TNI’s function to help combat cyber threats. According to SafeNet, the militarization of cyberspace can give rise to coercive-militaristic policies such as censorship, information operations and tightening of regulations regarding online expression.
Nevertheless, with the Court’s decision being final and legally binding, citizens are on firmer ground to voice criticism, whether aimed at government bodies, corporations or public figures.
This protection should empower not only activists, but also journalists, students, workers, consumers and everyday internet users to speak out against injustice or misconduct. In any democratic society, challenging power – wherever it resides – is not just a right, but a public duty.
The article was published in the Opinion section of The Jakarta Post on May 7, 2025.
Sahid Hadi
A Civil Law Lecturer at the Faculty of Law, Indonesian Islamic University (UII), specializing in research on business law and human rights, as well as legal methodology.