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JAKARTA The Constitutional Court (MK) through decision Number 105/PUU-XXII/2024 prohibits government institutions, institutions, and corporations from filing allegations of defamation against them. The decision was issued in response to a request for judicial review of Article 27A in conjunction with Article 45 Paragraph (4) of Law Number 1 of 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions (UU ITE).

In its considerations, the Constitutional Court said that personal protection and guarantees of freedom of expression must be given proportionally and do not cause excessive concerns about the space for civil liberties.

Substantially, the Constitutional Court is of the view that the articles questioned by the applicant have similarities in substance with Article 433 paragraph (1) of the Criminal Code. However, Article 433 paragraph (1) of the Criminal Code expressly states that defamation is only valid if the victim is an individual, not a government institution or a group of people.

Article 27A of the ITE Law states that every person deliberately attacks the honor or good name of another person by accusing him of something, with the intention that it is known to the public in the form of electronic information and/or electronic documents carried out through an electronic system, can be sentenced to a maximum imprisonment of two years and/or a maximum fine of Rp. 400 million.

The Constitutional Court stated that Article 27A of the ITE Law is conditionally unconstitutional as long as the phrase other people' is not interpreted except for government institutions, a group of people with specific or certain identities, institutions, corporations, professions or positions. Thus, this article can only be used as a basis for alleged defamation if the victim is an individual.

Researcher from the Institute for Criminal Justice Reform (ICJR), Maidina Rahmawati, assessed that there needs to be a progesive adaptation to the Constitutional Court's decision which prohibits state institutions, corporations, or professional associations from reporting allegations of defamation against them. One of them is the elimination of the substance of Articles 218 and 219 of the Criminal Code regulates the criminal act of insulting the president and vice president as well as Article 240 and 241 of the Criminal Code which regulates insults to the government or state institutions.

Constitutional Court Building. (Between)

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"The MK does not abolish that. However, if the Constitutional Court says insult articles cause a climate of fear, it should be abolished. That should be one breath with the Constitutional Court's statement that insults are prohibited to protect state institutions," he said, Monday, May 19, 2025.

According to him, the Constitutional Court also abolished Article 14 and Article 15 of Law Number 1 of 1946 concerning Criminal Law Regulations (KUHP) regarding the spread of fake news or hoaxes. Although the article on fake news in the old Criminal Code has been declared invalid, currently similar provisions are still contained in Article 263 and Article 264 of the latest Criminal Code. Therefore, ICJR assesses that the article on fake news should be abolished in the new Criminal Code.

In addition, articles related to hoaxes are also still contained in Article 28 paragraph (3) of the ITE Law. Through Decision Number 115/PUU-XXII/2024, the Constitutional Court does not erase the article on spreading hoaxes, but emphasizes the interpretation of the phrase terruption'. According to the Constitutional Court, this phrase must be interpreted as a condition of unrest in the physical space, not in the digital space. This means that the act of spreading information or electronic documents containing false notifications can be punished if it causes real unrest in the community.

Maidina said that Article 28 paragraph (3) of the ITE Law and the article on fake news in the latest Criminal Code in the future will directly give a mandate to law enforcement officials to be careful in interpreting these crimes. In the consideration of the Constitutional Court, he said, one of the grounds for improving the interpretation of the phrase construction' is carried out so that it is in accordance with human rights principles. In this context, the use of the article of fake news should not be used for cases that are closely related to the expression or opinion of the community.

He stated that the Constitutional Court has limited that everyone is prohibited from spreading information that contains actions or spreads hatred, is carried out intentionally in public, and poses a real risk. Therefore, the emphasis of the Constitutional Court must be the concern of law enforcement officers when examining the crime of hate speech. This interpretation provides consequences for the need to see intentional and also the result of the actions of people who are considered to have committed hate speech," he added.

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Amnesty International Indonesia Executive Director, Usman Hamid, revealed that the Constitutional Court's decision further confirms that there are chronic problems in the implementation of the ITE Law in the community. Through this decision, the Constitutional Court has carried out its role as a judicial institution by reducing the risk of human rights violations through the arbitrary use of articles of defamation by the state and corporations.

However, the threat to freedom of expression will remain before the government and the DPR revise the article on defamation in order to close the gap for anyone misusing it to silence criticism in the community. "Amnesty International opposes the law that criminalizes defamation, whether public or private. This problem should be resolved through a civil lawsuit. The state institution itself is not an entity that is protected by its reputation by human rights law," he said.

In addition, decisions that exclude digital space as a criminal offense in the ITE Law also guarantee freedom of expression in cyberspace. Therefore, cyber patrols of the National Police who often target peaceful expressions in the digital space must immediately be stopped with this Constitutional Court decision. In Amnesty International Indonesia's notes, during 2019-2024 there were at least 530 cases of criminalizing freedom of expression with the snares of the ITE Law against 563 victims. The perpetrators were dominated by cyber patrols of the National Police (258 cases with 271 victims) and reports from the Regional Government (63 cases with 68 victims).

Usman emphasized that the Constitutional Court's decision must be read as a momentum for the state to immediately reform policies that have been silencing criticism. The government, parliament, and law enforcement officials have a constitutional obligation to follow up on this decision by thoroughly evaluating and revising the ITE Law including other problematic articles such as the delivery of hate speech and blasphemy of religion which is often used as a means of criminalizing peaceful expressions in both physical and digital spaces.

"The Constitutional Court's decision is also an opportunity to improve the relationship between the state and the citizens. The state must be present not as a party that silences it, but as a protector of citizens' rights, including freedom of expression," he said.

On the other hand, the Head of the National Police's Public Information Bureau, Trunoyudo Wisnu Andiko, ensured that the National Police Headquarters would comply with the two Constitutional Court decisions regarding the meaning of several articles in the ITE Law. He said the National Police would adapt or adapt and comply with the Constitutional Court's decision and would continue to be committed to providing protection and services to the community. The Constitutional Court's decision is a applicable rule," he added.

Head of the Attorney General's Office for Information and Law, Harli Siregar also said that his party would follow the Constitutional Court's decision regarding the ITE Law in prosecution. Not only the prosecutor's office, the police are also expected to comply with the decision so that in the future there will be no more reports of defamation by government agencies, corporations, or community groups.

"The Constitutional Court's decision is final and binding. And, the position of the prosecutor in the defamation case is as a public prosecutor. We will immediately follow the decision, both at the level of the state prosecutor's office, high prosecutor's office, and the Attorney General's Office," he said.

Deputy Chairman of Commission I of the Indonesian House of Representatives, Dave Laksono, appreciated the Constitutional Court's decision regarding exceptions for the government, corporations and professions and positions to report cases of defamation in the ITE Law. Therefore, with the nature of the final and binding Constitutional Court's decision, the DPR will also adjust the Constitutional Court's decision in the latest ITE Law. The article has been decided by the Constitutional Court, it's final and binding. So yes, we just follow it, we'll just adjust it to the derivative of the regulation instead of the law," he said.

However, the politician from the Golkar Party faction said that until now, there has been no plan from Commission I of the DPR to revise the ITE Law after the Constitutional Court decision. According to him, the results of the Constitutional Court's decision which amended Article 28 paragraph (3) and Article 45A paragraph (3) of the ITE Law, can be adjusted through technical rules against the law. No (revision of the law). There is no agenda for revision yet. That can take effect immediately. The most derivative must be adjusted," explained Dave.