Constitutional, Indonesia – Indonesia's controversial Electronic Information and Transactions (ITE) Law has long been criticized by human rights advocates as a tool for silencing dissent and criminalizing free speech. Initially enacted in 2008 and revised multiple times, the law's vague provisions on defamation and hate speech have been weaponized against activists, journalists, environmental defenders, and ordinary citizens who criticize those in power.
With over 500 people reported under its problematic provisions between 2013-2022 alone, the ITE Law has become synonymous with digital authoritarianism and the erosion of democratic discourse in Indonesia. A recent Constitutional Court ruling offers both hope and caution for the future of free expression in the world's third-largest democracy.
The Constitutional Court's ruling on 2 May 2025 represents a crucial advancement for freedom of expression in Indonesia. The ruling stipulates that government agencies, corporations, groups, institutions, or officials cannot file defamation reports under the Electronic Information and Transactions (ITE) Law. The Court ruled that only individuals can be victims of defamation, explicitly recognizing that in a democratic society, criticism of government policies serves as essential public oversight and must be protected to prevent abuse of power. This decision emerged from a judicial review petition by environmental activist Daniel Frits Maurits Tangkilisan, who was sentenced to seven months in prison for social media criticism of environmental damage in Karimunjawa.
The ruling provides important clarifications to previously vague provisions that enabled widespread criminalization. The Court interpreted the ambiguous phrase "a matter" to specifically mean "an act that degrades the honour or reputation of a person," distinguishing defamation from ordinary insults. For hate speech provisions, the Court established stricter limitations requiring that prohibited content must "substantively contain acts/dissemination of hatred based on certain identities that are committed intentionally and in public, which pose a real risk of discrimination, hostility, or violence." The Court also retained the "without right" provision to protect legitimate activities by media, researchers, and law enforcement officials.
Human rights observers remain skeptical about the ruling's practical impact on ending criminalization. SAFEnet Executive Director, Nenden Sekar Arum, noted that most defamation reports are filed by individuals rather than government agencies, meaning officials can still report in their personal capacity. From 2013-2022, at least 500 people were reported under problematic ITE provisions, with 146 cases in 2024 alone affecting 170 individuals. The data shows the law continues to be used for strategic lawsuits against public participation (SLAPP), particularly targeting activists, human rights defenders, and environmental advocates. While the ruling provides stronger interpretative frameworks and prohibits institutional reporting, significant loopholes remain that allow continued criminalization of critical voices, suggesting that more comprehensive reform is needed to fully protect freedom of expression and human rights defenders in Indonesia.
Most consequential changes: Constitutional Court (MK) clarification and immediate effect on ITE-Law practice
1. Only natural persons can be "victims" of defamation (Art. 27A & 45(4)).
State bodies, SOEs, private companies, public institutions, professions, or "positions" (jabatan) may no longer lodge criminal complaints.
- Cuts off the main route for institutional Strategic Lawsuits Against Public Participation (SLAPPs).
- Restores a measure of democratic oversight by protecting criticism of government policies and corporate conduct.
2. "A matter" must be read as "an act that degrades a person's honour or reputation."
- Narrows an otherwise catch-all clause that blurred insults, defamation, and criticism, improving legal certainty.
3. "Without right" (Art. 28(2) & 45A(2)) retained, but re-defined. It refers only to who may lawfully distribute content, not to whether hate speech is justified.
- Preserves a defence for journalists, researchers, and officials acting in bona fide public interest.
- Still leaves prosecutors broad discretion.
4. Hate-speech threshold tightened. Only content that intentionally, publicly, and substantially incites discrimination, hostility, or violence against protected groups is criminal.
- Helps protect legitimate dissent and historical discussion.
- Requires police and courts to show a "real risk" test before charging.
Key human-rights implications
Partial shield against SLAPPs, not a ban on criminal defamation.
Institutional complainants are barred, but individuals – including public officials acting "privately" – may still invoke Articles 27A & 28(2). Experience shows they do so frequently, so the chilling effect on activists, environmental defenders, and journalists is likely to persist.
Criminal penalties remain severe (up to two years for defamation, six years for hate speech).
This keeps Indonesia out of step with international standards – Human Rights Committee General Comment 34 and the 2012 UN Joint Declaration, which urge states to decriminalise defamation or make imprisonment impermissible.
Vagueness not fully cured.
Although "a matter" and "without right" were interpreted more narrowly, other elastic terms ("hate", "hostility", "influence") survive. Continued broad police discretion risks selective enforcement and forum shopping.
Implementation is decisive.
The National Police have pledged to "adapt", but past practice (e.g., 146 freedom-of-expression cases in 2024) suggests consistent training, prosecution guidelines, and judicial oversight are essential. Monitoring by Komnas HAM and civil-society watchdogs remains critical.
Bridge to the new Criminal Code (KUHP) 2026.
The Court framed its ruling as a stop-gap until the KUHP takes effect. Advocates should use this window to press lawmakers to bring the KUHP fully into line with ICCPR Art. 19 & 20, CAT Art. 16, and ASEAN Human Rights Declaration Art. 23.