Social media has made life easier in many aspects. But there are also some drawbacks. One of them is the ease of a citizen to defame other citizen by simply updating their status on Facebook or creating memes that are insulting. The correlation between social media and the concept of freedom of speech which is guaranteed by the Constitution of the Republic of Indonesia will be the highlight of this article. Article 28F of the Constitution states that “Every person shall have the right to communicate and to obtain information for the purpose of the development of his/her self and social environment, and shall have the right to seek, obtain, possess, store, process and convey information by employing all available types of channels.” “All available types of channels” here includes social media.

Narliswandi Piliang in his filing of judicial review on article 27 of Law 11 of 2008 concerning Electronic Information and Transactions argued that article 27 (3) of the Law is contradictory with article 28F of the Constitution which guarantees the freedom of speech. As a journalist, he represents his peers who do not want their freedom in writing news about certain people (especially the rich and famous) deprived or restricted by the government. Article 27 (3) of the Law is perceived by him as a setback of the process of democratization runs in this country.

Piliang’s opinion is in line with the opinion of some experts that defamation should be in the realm of civil law, not criminal law, just like in the United States of America. Although one of the reasons why the USA did not include defamation as a part of criminal law is because that particular country fully respects the rights of individual citizens, including the right to express opinions. And for some aspects of social structure they are way more liberal than Indonesia. For example if a picture of an American woman using only underwear is being used as a meme and going viral, the social punishment will be less severe than if that particular woman is Indonesia. However, the Consitutional Court ruling Number 50/PUU-VI/2008 concluded that the dignity and honor of a person should be protected by law, so article 27 (3) of the Law does not violate Indonesian democratic values, human rights, and principles of the rule of law.

The author opined that the most important thing is the inclusion of articles about defamation in the legislation, not whether it should be placed in the private or criminal law, because each proponent (of defamation as private or criminal law) has reasons which are equally plausible. Ones who support defamation as a part of private law based their opinions on the concept of freedom of speech, while the supporters of defamation as a part of criminal law based their opinions on the concept of welfare state which protects its citizens (the state acts not only as a nigh-watchman). Indeed article 28F of the Constitution guarantees the rights of citizens to convey information by using all available channels, yet article 28G of the same Constitution states that “every person shall have the right to protection of his/herself, family, honor, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right.” Keep in mind that the function of law is to make sure that the rights of a citizen does not collide with the rights of another citizen.

The author opined that the state should regulate further about technical definition of what is referred to as defamation. For example, that a meme picture must not show a recognizable face of a specific person or group without the party’s consent. Heidi Yeh, a beautiful model from Taiwan, had her career ruined because her picture is used in a which contains hoax information that she had plastic surgery, therefore her children (which are also models whose happened to pose in the same photo with her on that particular meme) are not as good looking as her. Many agencies refuse her because of that issue. Even her fiancé’s family began to ask her if she had ever had plastic surgery.This example shows that the country still needs to be present to protect the rights of its citizens, not just the freedom of speech, but also the citizens’ right to protection of their dignity and honor.

Regarding Police Circular No. 6 of 2015 on the Handling of Hate Speech, I understand that it is an internal instruction from a superior (Head of Indonesian Police Force) to his staffs, so the citizens should not to be concerned about it, since it is not a regulation that binds the citizens (it is called pseudo wetgeving in proper legal terms). Even if the Head of Indonesian Police Force defines the so called “hate speech” certain way, we as a citizens don’t have to worry since the purpose and instructions of this particular police circular is to prevent any kind of persecution based on sex, religion, faith, race, ethnicity, etc. It will be used as a guide for early warning and early detection and if a the police find a suspect among the citizens, the circular states that they need to educate that particular citizen and do other preventive actions first, then enforce the law if other things fail.

The author personally think the choice of the term “hate speech” itself which steers controversy among jurists, aside from the worry that this circular will further restrains freedom of speech. Indeed the definition of “hate speech” in the circular contains defamation, yet the “defamation” in that circular is a defamation which triggers ethnicity, religion, race, and/or social groups related hates. So the journalist and the citizens should not worry at all if they want to criticize a governor’s performance, for example. But they can’t insult that same governor’s ethnicity, because it could be considered as a violation of the law (article 156 Penal Code of Indonesia). It’s common sense really.

Timothee Kencono Malye