THE CRIMINALIZATION OF FAKE NEWS: CRITIQUE ON INDONESIA’S NEW PENAL CODE

Abstract

This paper is aimed at finding the foundation of and the limits to the criminalization of fake news disturbing public order in Indonesia. In this paper, authors analyze several laws and court verdicts prohibiting the broadcast of fake news. Authors specifically highlight the latest development namely Penal Code 2023 having recently been passed. By using the framework of protection of a legal interest from harmful behaviour, the results of the analysis reveal that Indonesia’s historical, political, social, and cultural backgrounds justify the prohibition on the broadcast of fake news as a restriction to freedom of expression. This perspective is slightly different compared to the western ideals that prefer to allow negative (or untrue) opinions to be conveyed in the public sphere as long as they do not endanger individual, public order, or even national security. The fake news broadcast offense is a kind of indirect incitement on an autonomous individual to commit an act harming public order. This harm constitutes a remote harm. In order that the criminalization of fake news shall be in accordance with the freedom of expression, this criminalization should be made specifically and strictly. The criminalization shall only be made against a clear and present danger. Unfortunately, after analyzing the provisions of the Penal Code 2023, authors find out that the formulation of the fake news broadcast offense is not specific and not strict; therefore, this is against the freedom of expression. In the end, the applicable law should be improved.