Indonesia: Criminalization of disinformation threatens freedom of expression

Dec 1, 2023

An opinion piece by Yogi Bratajaya, ICJ Legal Consultant and Daron Tan, ICJ Associate International Legal Adviser, Asia and the Pacific Programme, published on The Jakarta Post on 27 November 2023. 

Over the past two decades, state authorities have tightened their grip on online freedom of expression in the country by enacting and applying overbroad laws purportedly aimed at legitimate objectives such as combating disinformation, but with the effect of arbitrarily censoring expression and targeting journalists and human rights defenders.

Among these are criminal provisions against intentional dissemination of harmful “false information”, i.e. disinformation. One such provision is Article 14(1) of Law No. 1/1946 on criminal law regulations, which criminalizes the act of “intentionally broadcasting false news or statements that incite chaos in society”, which may result in 10 years’ imprisonment.

Civil society organizations have rightly pointed out that the 1946 law and other disinformation laws inherited from the colonial justice system should not be applied in current times. In July 2023, a petition was filed with the Constitutional Court by several human rights organizations claiming that the disinformation provisions in Law No. 1/1946 contravene the state’s obligation to protect the right to freedom of expression and information.

Disinformation laws have frequently been enforced to restrict freedom of expression. Muhammad Asrul, a journalist, was charged in 2021 under Article 14(1) of Law No. 1/1946 for a piece detailing the alleged involvement of the son of the Palopo mayor in a corruption scandal. Human rights defenders Haris Azhar and Fatia Maulidiyanti are standing trial on charges relating to the criminal disinformation provisions of the same law in relation to a YouTube video discussing allegations of a conflict of interest by the Coordinating Maritime and Investment Affairs Minister Luhut Pandjaitan.

As a state party to the International Covenant on Civil and Political Rights (ICCPR), Indonesia is obliged to respect and ensure the right to freedom of expression and information, as guaranteed under Article 19 of the ICCPR. As affirmed by the United Nations Human Rights Committee, the monitoring body for the ICCPR, this right forms the “foundation” of a free society in ensuring the “transparency and accountability” crucial to the promotion and protection of many other rights.

Any restriction of this right must be based on a law that is precisely worded. Further, it must be necessary for and be the least restrictive measure to respond to a legitimate aim. The only aims identified as legitimate are ensuring respect for the rights or reputations of others; or for the protection of national security, public order, public health or morals.

The criminal disinformation provisions of Law No. 1/1946 by no means meet the above standards. The use of the term “false news or statements” in the criminal disinformation provisions of the law is vague, overbroad and imprecise, as the lines between facts and opinions, and truth and falsehoods can be notoriously difficult to draw.

Further, the authorities should not rely on an overbroad definition of upholding public order to justify restrictions of freedom of expression. There appears to be nothing in the law or in any correlative pronouncements to suggest whether or how “chaos in society” relates to any of the bases in the closed list of legitimate purposes under Article 19 of the ICCPR. The failure to comply with these requirements for restriction may result in the arbitrary sanctioning of legitimate expression protected under international human rights law, including public interest reporting or critical opinions concerning public officials.

Particular care must be taken concerning the application of criminal law, as it is among the harshest of tools at the disposal of the state to exert control over individuals. Criminal law may only proscribe conduct that inflicts or threatens substantial harm on the human rights of others or to certain fundamental public interests.

It is unlikely that “chaos in society” would meet the threshold of “substantial harm” needed to justify a criminal law response, in part due to the lack of clarity on what “chaos in society” actually entails. The potential of such disproportionate criminal penalties has a chilling effect on the free communication of ideas, opinions or information, as individuals will self-censor to protect themselves.

We, the International Commission of Jurists (ICJ), have documented how states across Southeast Asia have purported to combat disinformation with laws that fail to conform to international human rights law and standards on the right to freedom of expression and information.

These laws are emblematic of the immense challenges of responding to disinformation using coercive legal measures, especially if they focus on the blunt instrument of criminalization. Generally, these laws targeting disinformation have been used to suppress or discourage the expression of contentious and critical views on matters of public interest.

For instance, section 14 of Thailand’s Computer-related Crimes Act B.E. 2560 (CCA) criminalizes “false computer data” that is “likely to cause damage to the public”, or “the protection of national security, public safety […] or cause panic to the public”, with these crimes being punishable with up to five years’ imprisonment, a fine of up to 100,000 Baht (about US$3,000), or both. Similarly, Section 7 of Singapore’s Protection from Online Falsehoods and Manipulation Act 2019 criminalizes the spreading of a “false statement of fact knowing it is false, and knowing it will or is likely to harm the public interest”, which may result in five years’ imprisonment, a fine of up to S$50,000 (about US$35,000), or both.

This worrying trend must be reversed, and Indonesia should thoroughly review its laws criminalizing disinformation, with a view to amending or repealing these provisions in line with its human rights obligations. While Law No. 1/1946 will no longer be applicable with the entry into force of the revised Criminal Code in January 2026, disinformation continues to be criminalized, including under articles 263 and 264 of the new Criminal Code.

The ICJ recognizes the complexities and challenges of responding to the spread of disinformation, including in online spaces.

When disinformation threatens human rights, states have a duty to take appropriate steps, grounded in human rights law, to address serious harms.

The crafting and use of vague and overbroad criminal laws, such as Article 14(1) of Law No. 1/1946, to sanction disinformation and undermine freedom of expression is rarely the answer. While certain forms of disinformation intended to cause serious harm may warrant a legal response, civil and administrative measures, rather than criminal law, will generally be appropriate where the disinformation does not involve incitement to violence. These legal responses must comply strictly with the human rights legal standards, and guard against harms that are limited and necessary to meet a legitimate purpose identified under Article 19 of the ICCPR.

More broadly, promoting and protecting, rather than limiting, human rights can serve as a means of achieving the kind of objectives that this legislation is purported to be aimed at. As emphasized by the UN Special Rapporteur on freedom of expression, it is through protecting and strengthening freedom of expression, improving digital literacy and supporting the important work of a free and independent media and civil society, that disinformation can be more effectively countered.

First published on The Jakarta Post here.