The Misinterpretation of Criticism in Criminal Law: Assessing Judicial Capacity in Indonesia’s Digital Era

This study examines how ambiguous legal provisions in Indonesia’s Electronic Information and Transactions Law and Criminal Code lead to overcriminalization of criticism, creating a chilling effect on free expression. It calls for legal reform, judicial capacity building, and digital literacy to balance expression with public order.

I. Rosyadi; Safaruddin Harefa· International Journal of Law Dynamics Review· 2026· DOI 10.62039/ijldr.v4i1.119

The core problem

The rapid expansion of social media in Indonesia has transformed public participation but also introduced risks such as defamation, hate speech, and disinformation. This study investigates the boundaries of freedom of expression in Indonesia’s digital space, particularly in the post-truth era. It addresses the legal ambiguity surrounding digital expression and its impact on democratic discourse. The research is situated within the tension between constitutional guarantees of free speech and the state’s interest in maintaining public order and social responsibility. Key questions include: How do Indonesian laws regulate digital expression? To what extent do these laws align with international human rights standards? And how does judicial interpretation affect the protection of freedom of expression?

The study employs a normative juridical approach, analyzing primary legal sources such as the Law on Electronic Information and Transactions (UU ITE) and the Indonesian Criminal Code (KUHP), alongside constitutional provisions and international human rights instruments. Secondary sources include academic literature, judicial decisions, and reports on digital literacy and law enforcement practices. The analysis focuses on the formulation and application of defamation and hate speech provisions, assessing their consistency with principles of legal certainty and proportionality. The study also examines recent legislative changes, particularly the new KUHP, to identify shifts in legal doctrine.

Introduction

The rapid expansion of social media in Indonesia has transformed public participation but also introduced risks such as defamation, hate speech, and disinformation. This study investigates the boundaries of freedom of expression in Indonesia’s digital space, particularly in the post-truth era. It addresses the legal ambiguity surrounding digital expression and its impact on democratic discourse. The research is situated within the tension between constitutional guarantees of free speech and the state’s interest in maintaining public order and social responsibility. Key questions include: How do Indonesian laws regulate digital expression? To what extent do these laws align with international human rights standards? And how does judicial interpretation affect the protection of freedom of expression?

The findings underscore the need to distinguish between legitimate criticism and unlawful expression. The current legal framework often fails to make this distinction, resulting in the misuse of criminal law as a tool to suppress dissent. The study argues for limiting criminal law to a last resort (ultimum remedium) and emphasizes the importance of judicial capacity building to ensure consistent and rights-respecting interpretations. A comprehensive approach is required, combining legal reform, judicial training, and public education on digital literacy. The shift towards a material offense approach in the new KUHP offers a promising direction, but its effectiveness depends on clear guidelines and robust judicial oversight. Ultimately, protecting freedom of expression while maintaining public order requires a delicate balance that respects human rights and democratic principles.

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