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A Firmer Hate Speech Law: Better Late than Regret

There is no doubt that hate speech in Indonesia has spread massively. The Indonesia penetration of internet users seems positively correlated with the large number of hate speech dissemination.

In Indonesia, the dissemination of hate speech could be perceived especially during the general election, both in national and regional level. We may still remember how the hate speeches were spreading massively along the campaign rally of 2014 presidential election and the last Jakarta gubernatorial election.

The recent disclosure of “Saracen” network also showed us, how hate speech, that include fake news, has been monetized. It become a real commodity in the era of internet, as it is also supported because there is a demand and supply. Saracen itself, has 800.000 accounts to manage and spread hate speech for getting paid up to Rp 75 million to Rp 100 million (read: Ideologi Fulus di Balik SARA Center).

The question is, what the state should do? What kind of regulation needed, at least, to push down the negative impacts of hate speech?  Whether or not hate speech should be regulated? This has become a never-ending debate between those who are in favor of anti-hate speech regulation and those who are against.

For comparison, in the 1971 United States (US) First Amendment, it is strictly stated that, “Congress shall make no law … abridging the freedom of speech.” The article generates further debatable question on whether or not regulating hate speech could be defined as a part of abridging the freedom of expression. Furthermore, can all negative impacts that occurred as the consequences of hate speech spreading still be accepted by the first amendment intention?

In 2007, Anthony Lewis, in his book, Freedom for the Thought That We Hate: A Biography of the First Amendment, stated that there is no basis at all to make regulation against hate speech. Lewis stands on the first amendment and believes that hate speech is impossible and inappropriate to be regulated by the written law. Lewis agrees that hate speech, even creates negative impacts, is a part of freedom of expression. Regulating hate speech will infringe the one’s freedom of expression.

It is however worth noted, that Lewis also stated that hate speech should also be given attention to. Lewis said that “one of the arguments for allowing hateful speech is that it makes the rest of us aware of terrible beliefs and strengthens our resolve to combat them” (2007: 162). For Lewis, we could make no law to counter hate speech, instead by massive campaign of “kind speech”?

In 2008, Jeremy Waldron, who’re loudly in favor of regulation against hate speech, answered Lewis’ argument in The New York Review of Books. Waldron explained that Lewis argument will just prevent person to not being impacted by hate speech. But Lewis has not given any answer for those who were becoming the victims. The main issue of the need of the regulation is not only about prevention but eradication.

In 2012, Waldron published book titled The Harm in Hate Speech, where he stated that hate speech could not be seen from the frame of one’s freedom of expression only, but also from the potential negative impacts to create harm to the victims’ dignity.

Waldron agrees that any kind of insult or defamation could not directly be defined as a form of hate speech. This is the reason why hate speech should be defined and regulated clearly. According to Waldron, one action can only be called as hate speech, if it harms one’s dignity: the one’s social standing and the fundamentals of basic reputation that entitle them to be treated as equals in the ordinary operations of society (2012: 5).

Then, how should we place this philosophical debate into Indonesia context? Indonesia however, clearly stated that the implementation of human right should be balanced by respecting others (article 28 J (1) and (2) 1945 Constitution). Meaning everyone could not exercise their own rights arbitrary by violating others.

The problem is, has Indonesia hate speech law firmly enough to define what acts that could possibly and potentially infringe others’ human right? Article 28 (2) of ITE law, which is known as Indonesia’s (digital) hate speech is to penalize every acts of dissemination of information that could create hatred related to SARA. But this article has become the problem itself due to its lack of defining the hate speech and the impacts.

This unclear meaning has been misused to ensnare minority groups. The law enforcement of hate speech cases were often mixing with the insult and defamation cases, which is totally different.

It should be recognized that, aticle 28 (2) ITE Law still unable to target hate speech criminals who were inciting to violence. In Cikeusik case, group of people were spreading hate speech which incited people to do violence to Ahmadiyah society were given narrower charge than the Ahmadis itself as a victim.

According to the Indonesia Police’s data, in 2016, there are more than 600 reports regarding hate speech. In 2016, the police can only handle 199 cases. To some extent, it means that our hate speech law, by its many weaknesses, is really difficult to be enforced. The main thing should be considered is because the article has no firm contents, especially on the proof material.

The government and DPR should open the possibility to the revision of this article, specifically on the definition and proof material. The revised article should state that every hate speech that followed by violence is a form of criminal acts. It should be proven that every hate speech has also been followed by incitement to violence. One’s “hurt feeling” could not enough to be a basis to charge someone has done hate speech.

The definition of hate speech must be clear and narrow: one can be charged of doing hate speech, if his/her act has incited to violence and the violence has occurred, in the other side, this is a condition, as Waldron said when hate speech has harmed one’s dignity. That incitement to violence would be the evidentiary tool to enforce the law. It will also balance between human right protection and freedom of expression. Every group like Saracen will also easly be charged.

Technically, this will make the law enforcer can charge everyone who uses their rights to violate others, easier. Moreover, when our hate speech law firmer, we can keep our society free from any threats of violence based on SARA.

Related articles:

Ulama Sejati dan Ulama Penebar Kebencian

Meretas Post-Truth

Demokrasi, Hoax, dan Media Sosial

Vox Hoax Vox Dei

UU ITE: Antara Ancaman dan Kebebasan Berpendapat

Lulusan Seminari Wacana Bhakti, Jakarta, dan Fakultas Hukum Unika Parahyangan, Bandung.

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