Top Court Rules Out Government Under Defamation Article of ITE Law

April 29, 2025 | 10:55 pm

TEMPO.CO, Jakarta -- The Constitutional Court (MK) has ruled that the defamation under the Electronic Information and Transactions Law (ITE Law) does not apply to the government, civil groups, or corporations. 

During the case hearing Number 105/PUU-XXII/2024, MK stated that the phrase "others" in Article 27A juncto Article 45 paragraph (4) of Law Number 1 of 2024 refers to individuals.

MK mentioned that in order to ensure legal certainty as stipulated in Article 28D paragraph (1) of the 1945 Constitution, Article 27A of the ITE Law must be declared conditionally unconstitutional. "As long as it is not interpreted except for government institutions, a specific group of people, institutions, corporations, professions, or positions," said Constitutional Judge Arief Hidayat on Tuesday, April 29, 2025.

A request for a material review of Article 27A of the ITE Law was filed by Daniel Frits Maurits Tangkilisan, a resident of Karimunjawa. He challenged several phrases in several articles of ITE Law due to unclear intention and potential subjection to misuse. Article 27A juncto Article 45 paragraph (4) regulates the prohibition of defamation through electronic systems. Meanwhile, Article 28 paragraph (2) juncto Article 45A paragraph (2) regulates the spread of hatred.

In its decision, MK partially granted the request on Article 27A juncto Article 45 paragraph (4) of the ITE Law. MK stated that these norms were conditionally unconstitutional in order not to violate the principles of legal certainty and protection of freedom of expression as guaranteed by the constitution.

MK also determined that such cases of defamation are considered delik aduan, or direct complaints, and therefore can only be processed if individuals who feel wronged file a complaint. Legal entities, such as corporations, have no legal standing to file defamation complaints in digital spaces. 

The Constitutional Court also limits the interpretation of “a matter” as “acts that degrade the honor or  prestige of someone.”  MK deemed it necessary to have limitations in order to avoid overlaps between defamation and ordinary insults. 

As for Article 28 paragraph (2) juncto Article 45A paragraph (2), MK considered the phrase "without rights" still necessary to protect certain professional groups, such as journalists and researchers. This element should not be interpreted as a limitation on who can speak, but as a legal requirement in the context of unlawful acts.

The court set limitations on articles regulating hate speech to avoid enforcing it on legitimate concerns. According to the Constitutional Court, electronic information can only be criminalized if it substantially contains incitement based on specific identities, is done intentionally and openly, and poses a real risk of discrimination or violence.

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