Government Criticism on Social Media, Can You Be Penalized?

PERTANYAAN

Recently it went viral on Tiktok and Twitter, a video of a young man in Lampung criticizing the Lampung government. His points of criticism were related to limited infrastructure, a weak education system, and dependence on the agricultural sector. Then, Lampung residents who objected to the content reported to the Police with the hoax arguments in accordance with Article 14 and Article 15 Law 1/1946 and hate speech (Article 28 section (2) Law 11/2008 and Article 45A section (2) Law 19/2016) because it was considered potentially misleading because it was not supported by strong data. Is it legally allowed to criticize the government? Can people be penalized? Please explain.

INTISARI JAWABAN

Based on your information, the young man from Lampung who criticized government policies was reported under the hate speech article, namely Article 28 section (2) Law 11/2008 jo. Article 45A section (2) Law 19/2016 and hoax articles, namely Article 14 section (2) and Article 15 of Law 1/1946. So, did the government criticism conveyed by him fulfill the elements of the hate speech article and the hoax article so that he can be punished?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Kritik Pemerintah di Medsos, Bisakah Dipidana? written by Nafiatul Munawaroh, S.H., M.H and published on Friday, 14 April 2023.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Criticism as a Form of Freedom of Speech

Before answering your question, it is first necessary to understand what is meant by criticism. According to Kamus Besar Bahasa Indonesia or the official dictionary of the Indonesian language, kritik or criticism is a response, or a review sometimes accompanied by a description and consideration of the good and bad of a work, opinion, and so on.

Criticism conveyed by citizens to the government over the condition of their area through social media platforms can be categorized as expressing opinions. Every citizen basically has the right to freedom of opinion or speech guaranteed in Article 28E section (3) 1945 Constitution.

However, the freedom of speech through oral, written, or electronic media needs to pay attention to religious values, decency, order, public interest, and the integrity of the country.[1]

Is Criticism a Hate Speech Offense?

As you stated, the young man who criticized the Lampung regional government was reported on the basis of Article 28 section (2) Law 11/2008 jo. Article 45A section (2) Law 19/2016 which prohibits anyone from intentionally and without the right to disseminate information aimed at creating a sense of hatred or hostility of individuals and/or certain community groups based on ethnicity, religion, race, and intergroup relations (in Bahasa Indonesia is known as “SARA”, that refers to Suku, Agama, Ras, dan Antar-golongan). Such actions are punishable by a maximum imprisonment of 6 years and/or a maximum fine of Rp1 billion.

Hate speech can take the form of insulting, defaming, blaspheming, provoking, inciting, and spreading false news that has the purpose or can have an impact on acts of discrimination, violence, loss of life, and/or social conflict.[2]

Hate speech that aims to incite and ignite hatred against individuals and/or community groups is distinguished from the aspects of ethnicity, religion, a sect of belief, ethnicity, gender, sexual orientation, etc.[3]

Based on the description above, the hate speech article in Law 11/2008 and its amendments are intended to create a sense of hatred and hostility based on SARA, which can have an impact on conflicts such as discrimination, violence, and social conflict.

Meanwhile, the criticism made by the young man from Lampung as you stated is related to government administration such as regional governance, infrastructure, education, and others. If this is the case, we believe that Article 28 section (2) Law 11/2008 jo. Article 45 section (2) Law 19/2016 cannot be applied because it does not fulfill the element of SARA.

Government administration cannot be categorized as SARA because it is related to government policies and implementation, not related to ethnicity, religion, race, or certain groups.

However, if the video does contain elements of incitement or statements that cause hatred or hostility towards SARA, then the article can be applied.

Can Critics Be Criminalized for Hoaxes?

As for hoaxes or false news, it is true that the perpetrators can be punished as described in the article entitled Articles to Penalize Hoax Spreaders.

Regarding the article criticizing the government, you said that the young man from Lampung was reported on the basis of Article 14 section (2) and Article 15 Law 1/1946 which reads:

          Article 14 section (2) Law 1/1946

Whoever disseminates news or issues a notification that may cause a disturbance among the people, while he reasonably suspects that the news or notification is false, shall be punished with a maximum imprisonment of three years.

Article 15 Law 1/1946

Any person who disseminates uncertain news or exaggerated or incomplete news, knowing or at least reasonably suspecting that such news will or may cause a disturbance among the people, shall be punished by a maximum imprisonment of two years.

Regarding the article above, in the Decision of the District Court of Subang Number 310/Pid.Sus/2019/PN Sng, the panel of judges in their consideration explained 3 elements in Article 14 section (2) Law 1/1946, namely (pp. 18 - 22):

1. Whoever

Any person individually or a body of legal subjects as a holder of rights and obligations who commits or has been charged with committing an act prohibited by applicable laws and regulations (p. 18).

2. Broadcasting news or issuing a notification that may create a disturbance among the people.

1. broadcasting in the sense of disseminating or propagandizing to the public;
2. publishing or causing a disturbance among the people means that a disturbance will occur, where the disturbance is not instantaneous but undergoes a process (p. 20).

 

3. May presume that the news or notification is false

"May suspect" means to have predicted or suspected that something will happen that is seen or expected from a situation (p. 22) that the news or notification is false.

Meanwhile, related to Article 15 of Law 1/1946 according to the Decision of the District Court of Sukabumi Number 15/Pid.B/2019/PN Skb, there are 2 elements, namely (p. 27):

1. Whoever

A legal subject that can be either an individual or a legal entity represented by a person who demonstrates the power of thought as a fundamental requirement for responsibility (p. 28).

2. Broadcasting uncertain news or news that is exaggerated or incomplete, while he understands at least reasonably can suspect that such news will or can easily cause chaos among the people.

The Elucidation of Article 15 Law 1/1946 explains that this article concerns hearsay or uncertain news and news broadcast with additions or subtractions (p. 28).

Then, the element of "reasonably could suspect" refers to the nature of intent, which according to criminal doctrine there are 3 gradations of intent (opzetelijk), namely intent as an intention, aware of certainty, and aware of the possibility (p. 29).

The element "may" cause a disturbance is a formal offense which means that the disturbance among the people is not required to exist in advance or it is not necessary that the disturbance actually exists (p. 30).

If the criticism conveyed by the young man from Lampung through their social media fulfills the elements of the article above, namely spreading false news/information or broadcasting information that is uncertain or added/subtracted, so that it has the potential to cause chaos, then they can be convicted of spreading hoaxes.

However, if the criticism contains the truth, it cannot be punished on the basis of Article 14 section (2) and Article 15 Law 1/1946.

Also read: The Meaning of Fake and Misleading News in Law 11/2008

Study Case

An example of a case where government criticism was arrested can be found in the Decision of the High Court of Makassar Number 748/Pid.Sus/2021/ PT Mks where the defendant made a tweet on Twitter demanding the repeal of the Job Creation Law because it was considered to torment and kill the people, such as eliminating severance pay, calculating labor wages by the hour, etc. (pp. 2 - 3).

The post was public and could be accessed by all Twitter users. The defendant did not find out the truth of the contents of the Job Creation Bill first, which caused chaos in various places so that the government had to clarify that it was not true (p. 3).

The defendant in the Decision of the High Court of Makassar Number 748/Pid.Sus/2021/ PT Mks was found legally and convincingly guilty of committing the crime of broadcasting uncertain news or news that is exaggerated or incomplete, while he knew or at least reasonably suspected that such news would or could easily cause a disturbance among the people and was sentenced to 8 months imprisonment (p. 8).

The verdict was upheld by the appeal decision of the Makassar High Court. The panel of appellate judges considered that the defendant posted news without first examining the truth of the news, which turned out to be incomplete. This proves that the defendant did not fully read the omnibus law (Job Creation Bill) and did not ask the experts (pp. 11-12).

How to Respond to Criticism

So based on the description above, if the criticism conveyed through social media is proven to contain elements of hoax or hate speech and fulfills the elements of the article, it can be punished.

However, according to the Circular Letter on Hate Speech, if an act is found that has the potential to lead to the crime of hate speech, then members of the Indonesian National Police are obliged to take action, one of which is to bring together the party suspected of committing hate speech with the victim, then find a peaceful solution between the conflicting parties.[4]

As for the criticism submitted by citizens against the government, Indonesia as a democracy country[5] places the public as the basic instrument of all government actions. The important thing for a country that applies the principle of popular sovereignty (which is also known as the principle of democracy) is to involve the community in the process of state administration.[6]

In Jurgen Habermas' idea of deliberative democracy, the community is placed in an emancipatory position to carry out legislative activities in public spaces. This public space must fulfill two conditions, namely free and critical. Free means that every party can speak anywhere, gather, and participate in political debates. While critical means ready and able to fairly and responsibly highlight the public decision-making process.[7]

In deliberative democracy, policies or laws that will be formed are influenced by continuous discourse in society. To realize this, there must be guarantees, one of which is freedom of expression.[8]

Furthermore, deliberative democracy requires communication between the state and society through the public sphere, which can take the form of freedom of the press, freedom of protest, etc.[9]

Based on this, criticism submitted by the community to the state should indeed be placed as a discourse in public policy making with the aim of realizing the principle of democracy/ popular sovereignty adopted by Indonesia. Criminalizing those who criticize the government should be avoided or minimized because criminal law is the ultimum remedium.

Enrich your legal research with the latest bilingual legal analysis, as well as the collection of regulatory translations integrated into Hukumonline Pro, click here to learn more.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. The Constitution of the Republic of Indonesia 1945;
2. Law Number 1 of 1946 on Regulation of Criminal Law;
3. Law Number 39 of 1999 on Human Rights;
4. Law Number 11 of 2008 on Electronic Information and Transactions as amended by Law Number 19 of 2016 on the Amendment to Law Number 11 of 2008 on Electronic Information and Transactions;
5. Circular Letter of the Chief of the Indonesian National Police Number SE/6/X/2015 of 2015 on Hate Speech.

Court Decision:

1. Decision of the District Court of Subang Number 310/Pid.Sus/2019/PN Sng;
2. Decision of the District Court of Sukabumi Number 15/Pid.B/2019/PN Skb;
3. Decision of the High Court of Makassar Number 748/Pid.Sus/2021/ PT Mks.

Reference:

1. Cora Elly Noviati. Demokrasi dan Sistem Pemerintahan. Jurnal Konstitusi, Vol. 10, No. 2, Juni 2013;
2. Mohammad Asy’ari Muthhar. Membaca Demokrasi Deliberatif Jurgen Habermas dalam Dinamika Politik Indonesia. Jurnal Ilmu Ushuluddin, Vol. 2 No. 2, Desember 2016;
3. Wimmy Haliim. Demokrasi Deliberatif Indonesia: Konsep Partisipasi Masyarakat dalam Membentuk Demokrasi dan Hukum yang Responsif. Masyarakat Indonesia, Vol. 42 (1), Juni 2016;
4. Kritik (Critic), accessed on Wednesday, 13 April 2023 at 09.42 West Indonesian Time (zone).

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[1] Article 23 section (2) Law Number 39 of 1999 on Human Rights.

[2] Point 2 letter f Circular Letter of the Chief of the Indonesian National Police Number SE/6/X/2015 of 2015 on Hate Speech (“Circular Letter on Hate Speech”).

[3] Point 2 letter b Circular Letter on Hate Speech.

[4] Point 3 letter a number 5 Circular Letter on Hate Speech.

[5] Cora Elly Noviati. Demokrasi dan Sistem Pemerintahan. Jurnal Konstitusi, Vol. 10, No. 2, Juni 2013, p. 336.

[6] Wimmy Haliim. Demokrasi Deliberatif Indonesia: Konsep Partisipasi Masyarakat dalam Membentuk Demokrasi dan Hukum yang Responsif. Masyarakat Indonesia, Vol. 42 (1), Juni 2016, p. 20 and also read Cora Elly Noviati. Demokrasi dan Sistem Pemerintahan. Jurnal Konstitusi, Vol. 10, No. 2, Juni 2013, p. 335.

[7] Wimmy Haliim. Demokrasi Deliberatif Indonesia: Konsep Partisipasi Masyarakat dalam Membentuk Demokrasi dan Hukum yang Responsif. Masyarakat Indonesia, Vol. 42 (1), Juni 2016, p. 21.

[8] Mohammad Asy’ari Muthhar. Membaca Demokrasi Deliberatif Jurgen Habermas dalam Dinamika Politik Indonesia. Jurnal Ilmu Ushuluddin, Vol. 2 No. 2 Desember 2016, p. 62.

[9] Mohammad Asy’ari Muthhar. Membaca Demokrasi Deliberatif Jurgen Habermas dalam Dinamika Politik Indonesia. Jurnal Ilmu Ushuluddin, Vol. 2 No. 2 Desember 2016, p. 62.