“A breakthrough for freedom of expression in Indonesia,” declared an op-ed in the Jakarta Post. “An important step towards protecting online speech,” said Human Rights Watch.
Late last month, Indonesia’s Constitutional Court handed down two significant rulings on the amended Electronic Information and Transaction Law. The first ruling was straightforward: the court declared that a “government, company, institution, or groups with specific identities” cannot file criminal defamation complaints against individuals. This aligns with the United Nations’ principles on freedom of speech and some previous legislation in Indonesia, but the court’s decision explicitly extends this protection to online speech.
For decades, government bodies and religious groups in Indonesia have used defamation complaints as a blunt tool to silence critics. Amnesty International estimated that between 2019 and 2024, these institutions lodged 530 such complaints. As one commentator noted, “By narrowing defamation to individual harm, the Court has effectively dismantled a tool long used to criminalize journalism, activism, and even bureaucratic whistleblowing.”
However, some remain cautious. The ruling still allows, for instance, a minister (but not a ministry) to claim defamation, which leaves considerable room for abuse. Still, this step moves Indonesia away from what might be called the “identity politics” of censorship by making defamation a matter between individuals. One can no longer claim to be offended on behalf of a group.
The court’s second ruling is more complex. It states that “public unrest must refer to disturbances to public order in the physical realm, not digital platforms.” In other words, it isn’t a criminal offense to spread false information or incitement if it only causes “unrest” online and not in the physical world. This cuts against a global trend that increasingly treats online and offline speech as fundamentally the same, but it also reinforces a consequentialist view of free speech – one that makes illegality a matter of simple luck.
Imagine, for instance, that I post a harmless but provocative message like, “Indonesia is rubbish at football.” If only 100 people respond with angry tweets, that doesn’t constitute public unrest, per the Constitutional Court’s new ruling. However, if 100 football diehards take to the streets and riot in response of my social media post, I might be prosecuted. The message is identical in both cases, but the legal consequence hinges entirely on others’ reactions.
Or consider this: one person posts the same critical comment about Indonesia’s lackluster football performance and another person posts a message that calls for the burning down of churches in Jakarta. The first post (maybe the user has more reach) prompts a riotous response in public, but the latter, which is hardly read, doesn’t. Is the first more inciting than the second? Based on the consequence, yes. This doesn’t seem fair. It’s punishing people for the chaos others choose to create.
Of course, much of the law necessarily relies on consequence and misfortune. We don’t arrest every driver using a phone behind the wheel for murder, even though the one who happens to hit a pedestrian is, in many cases, just unlucky. But this kind of logic doesn’t fit so neatly with political speech. The distracted driver, after all, still commits a minor offense even if no one is hurt. But if the only dividing line between legal and illegal speech is how others react, free expression is a game of chance. Actually, it makes all discourse a hostage to those who are better at organizing angry mobs.
The alternative to this kind of consequentialist approach is a standard based on objective harm, not just hurt feelings or chaotic reactions. Defamation law, for example, doesn’t rely solely on how someone reacts. It asks whether the statement was untrue, whether it was made with intent to harm, and whether it caused genuine damage to the victim’s reputation – not just whether someone chose to take offense. We need a similar principle for political speech, one that isn’t so easily derailed by the volatility of crowds. This isn’t a new problem. In his famous ruling in Schenck v. United States in 1917, the American jurist Oliver Wendell Holmes argued that censorship is justified when someone “cries fire in a crowded theater.”
This is often cited as a common-sense limit on free speech, but it has the same consequentialist flaw. What if, unknown to the liar, the theater is filled with deaf people who don’t react in panic? Or what if the audience is sensible enough to check for smoke and, seeing none, doesn’t stampede? The act is identical in both cases – the intent to cause chaos is the same – but the consequence depends entirely on others’ reactions. Indeed, the cure to disinformation and incitement isn’t censorship; it’s having an educated, discerning, and confident audience in the proverbial theater who don’t panic at the briefest mention of danger.
There are two ways of organizing society: one is through negotiation, which requires free speech and often involves disputation; the other is through coercion, usually through violence or by the state intervening to mollify would-be rioters. It is commendable that the Constitutional Court has attempted to make the online space a forum for dispute without the threat of state intervention. However, the ruling leaves the physical public space vulnerable. It means that if I want to shut you up, all I have to do is organize an angry mob and the state will still intervene on my behalf. I’m not saying the Constitutional Court’s ruling is necessarily wrong, but it’s a shortcut that leaves the underlying issue unresolved.