March 26, 2024
JAKARTA – The Constitutional Court’s (MK) ruling that scrapped the criminal penalties for spreading hoaxes is applauded by experts and activists as a good foundation for freedom of speech, although much work remains to uphold civil liberties in the country.
In a ruling issued on Thursday, the court annulled Articles 14 and 15 of the 1946 Criminal Code Law (KUHP), which penalized anyone who spread false or misleading information to create public disturbance.
The nine-justice bench said the term “false news” in the two provisions was too vague to determine what constitutes a truth and that the two provisions in question were ambiguous on what constitutes public “disturbance”. The court said these could lead to restrictions on freedom of thought and overcriminalization of those who simply intended to criticize those in power.
The petition was filed in July last year by two activists Haris Azhar and Fatia Maulidiyanti, who at the time were both standing a criminal trial for defaming Coordinating Maritime Affairs and Investment Minister Luhut Pandjaitan and spreading misinformation when criticizing the senior minister in a YouTube video.
The two activists turned to the Constitutional Court to challenge the two Criminal Code articles on spreading false information and an online defamation article in the 2016 Electronic Information and Transactions (ITE) Law that were inflicted on them by prosecutors at the criminal court. Haris and Fatia were acquitted on all counts in January of this year, before the Constitutional Court issued the ruling on their petition.
Read also: Relief as court acquits activists in Luhut’s defamation case
Two other petitioners in the Constitutional Court case were the Indonesian Legal Aid Foundation (YLBHI) and the Alliance of Independent Journalists (AJI).
In the same ruling, the Constitutional Court rejected their request to revoke Article 27 (3) on online defamation in the 2016 ITE Law, which has long been criticized as a draconian law used primarily to silence government critics. The provision in question, along with some other articles, was watered down in an amendment to the cyberlaw that was passed by policymakers late last year.
The amendment rendered the petition void, the court said in the ruling.
Good foundation
Experts and activists have praised the court’s ruling that decriminalizes misinformation spreading, describing the decision as providing a “good foundation for civil liberties” in the country amid the shrinking civic space of late.
Read also: Constitutional Court rules defamation clause ‘conditionally unconstitutional’
“The way the court built its judicial opinion is an important breakthrough for acknowledgment of a more substantive freedom of speech,” constitutional law expert Bivitri Susanti from the Jakarta-based Jentera School of Law said on Saturday.
However, Bivitri also said the ruling would not automatically annul similar articles on misinformation in the new Criminal Code, which was enacted last year and will take effect in 2026. At the very least, she said, people could use this ruling to challenge the new law.
“Still, at least the next two years are good enough for the public to not be afraid of being criminalized with such articles,” she said.
The Institute for Criminal Justice Reform (ICJR) described the decriminalization of false news as “a breath of fresh air for democracy in the country”, considering how often the articles were abused to criminalize journalists and civil society.
Read also: Fear of draconian articles lingers as House finishes ITE Law revision
But the group said anyone could still face criminal charges for spreading false information on the internet to incite public disturbance, which is regulated under the new ITE Law.
For that reason, the ICJR urged the government and lawmakers to immediately remove all related provisions from the new ITE Law and the new penal code.