Indonesia’s ITE, pornography, criminal defamation and hate laws

This article covers the context around Indonesia’s ITE law, after its most recent updated (law 1 of 2024). The ITE (Informasi dan Transaksi Elektronik) law is often described as an internet censorship law, however this is not fully accurate.

What is the ITE law?

ITE means ‘electronic transactions and information’. Indonesian legislation tends to be thematic, covering a specific area of law (a legal code). In this case, therefore, UU ITE (law 11 of 2008) governs online transactions, evidence and behaviour:

• Electronic information (data)
• Electronic transactions (such as contracts made by computer)
• Electronic documents
• Electronic evidence
• IT crimes including computer misuse and online libel and hate speech
• etc.

The territorial scope of the ITE law, as per article 2 of the law is anyone anywhere in the world whose actions have a legal effect in Indonesia or whose actions damage Indonesia’s interests.

This article covers the content of the ITE law. In order to understand the criminal provisions of the ITE law, it is also necessary to understand related legislation, such as laws against gambling, pornography, libel, etc. Therefore, these are also discussed here.

Evidentiary/transactional aspects of the ITE law

According to article 5 of the law, electronic documents are legally binding, and can be used in evidence, including in cases where an agreement provides that they must not be used, except as provided otherwise in law.

According to article 8, the time of delivery of electronic documents/data is when it is sent, unless the parties agree otherwise. Meanwhile (unless agreed otherwise) the time of receipt is when it enters an electronic system under the control of the legally designated recipient.

Online businesses using IT to promote a product must provide complete contractual, producer and product information through that system. (Article 10)

A digital signature is binding (article 11), providing it is under the control of the signer, is tamper-evident, and it can be shown who the signer is, and that they approved the connected data to which the signature is linked.

Following provisions concern creating electronic transactions and the ownership of domain names.

Article 26 provides that data of an individual can only be used electronically with their permission, and that that person can demand the deletion of their irrelevant data from their system, and that a person can sue for any losses caused.

Actions which constitute ITE crimes

The required actions in relation to the required “electronic information or electronic document” to constitute the various ITE crimes was changed by law 1 of 2024.

In all the cases below, both under ITE, and other law, intent (‘dengan sengaja’) is required.

The actions are now:

• send — threats of violence (29))
• commit via an electronic system (article 27A) — defamation
• distribute/transmit — extortion (27B), lying to consumers (28(1)), stirring up hatred (28(2))
• spreads — incites unrest (28(3))
• broadcast/perform/distribute/transmit and/or make accessible — indecent content(27(1))
• distribute/transmit and/or make accessible — gambling (27(2))

Some of these verbs are defined in the legislation:

• broadcast includes acts of transmission, distribution and making accessible
• distribute means send and/or spread
• transmit means sending, intended for another party,
• make accessible means acts other than distribute or transmit to be known to others or the public

Examples given of ‘making accessible’ include replying to a comment on social media, retweeting, etc.

Gambling

Criminal code

Gambling is covered under the criminal code, as modified by law 7 of 1974 on gambling.

This provides at article 303 for up to 10 years in prison/25 billion rp fine for:

• offering or providing opportunities for
• gambling
• as a profession or by participating in a business for that purpose

And at article 303 bis (sentence up to 4 years/10 billion fine, increased to 6 years/150 billion fine for recidivism within the last two years):

• takes part in a gambling game

ITE gambling provisions

Article 27(2) applies to those who:

• without the right to do so
• distributes, transmits, or makes accessible electronic information/documents which contains
• gambling content.

The sentence is up to 10 years prison and/or a 10 billion fine.

‘Gambling content’ means:

• offering/providing the opportunity to gamble;
• providing an opportunity to the public to gamble;
• making a living from gambling; or
• participating in a gambling business

Pornography and indecent content

The pornography law

The Pornography law (law 44 of 2008) states that pornography is any media, conversation, gestures, through any communication media or public performance, which contains obscenity or sexual exploitation which violates society’s norms of decency.

It is prohibited to produce, distribute (etc.) pornography which explicitly contains (sentence minimum 6 months, maximum 12 years, and/or fine of 250 to 6000 million rupiah):

• sexual intercourse, including deviant forms of sexual intercourse
• sexual violence
• masturbation
• nudity or giving an impression of nudity
• genitals or
• child pornography

And it is prohibited to provide pornography services which present (sentence minimum 6 months, maximum 6 years and/or fine of 250–3000 million rp):

• explicit nudity or give the impression of nudity
• explicit genitalia
• exploit or exhibit sexual activity
• offer or advertise directly or indirectly sexual services

Downloading or borrowing pornography is punishable by up to 4 years prison and/or up to 2 billion rp fine. Ditto for watching, listening to, possessing, etc., pornography. Funding for pornography is sentenced by at least 2 to 15 years and or 1 to 7.5 billion rp fine. Anyone who offers themselves as a model or object of pornography is sentenced by up to 10 years and/or 5 billion rp fine. Anyone who makes someone else the model and/or object of pornography is sentenced by at least 1 year, and up to 12 years, and/or 500 to 6000 million rp fine. Anyone who takes part in pornographic performance or in public is sentenced up to 10 years and/or 5 billion fine.

If children are involved in these crimes, the sentence is increased by 1/3.

If children are persuaded/forced to use pornography the sentence is at least 6 months and up to 6 years, and/or 250–3000 million fine.

Indecency under the criminal code

Under article 281 of the criminal code, a sentence of up to 32 months/4.5 million fine applies for:

• openly
• committing an indecency

or

• in front of others against their will
• committing an indecency

Article 282 applies to the distribution, publication, import, etc., of indecent materials (up to 18 months/4.5 million, or if done as a profession up to 32 months/75 million), including those which you strongly suspect to be indecent (9 months/4.5 million).

Article 283 applies to supplying, showing indecent materials, or devices to prevent or terminate pregnancy to a child, and has a sentence of up to 9 months in prison. The sentence is 4 months if he has ‘strong reason to believe’ that this applies.

ITE pornography

Article 27(1) of UU ITE applies to anyone who:

• without the right
• broadcasts, shows, distributes, transmits, and/or makes accessible electronic information/documents
• which contains indecent content
• to be known publicly

This carries a sentence of up to 6 years prison and/or 1 billion fine, with a +1/3 enhancement if involving a child.

The meaning of ‘indecent’ is defined in the clarification of the ITE law:

• displaying nudity, genitals, or sexual activity, which is
• contrary to the contemporary values of the community at the time the act is carried out

“To be known publicly” means:

• is accessed, or is made accessible to
• a large group of people who do not know each other

Defamation, insult and false accusations

False criminal accusations or to the authorities

Article 317 of the criminal code covers defamatory accusation (article 268 of the current Dutch code) with sentence of up to 4 years, being:

• deliberately making
• a false
• written or to be written
• complaint or notification
• to authorities about
• a person

Article 318 covers falsely giving the impression that someone has committed a criminal act, with a sentence of up to 4 years. The elements are:

• deliberately creating
• a false suspicion that
• someone has committed a criminal act.

Insult under the criminal code

Article 315 of the criminal code covers penghinaan (simple insult), equivalent to eenvoudige belediging in the current Dutch code (article 266). The maximum sentence is four months and two weeks. The elements are:

• EITHER in oral or written form in front of the person or in public
• OR by communication sent to or received by that person

It is insult that falls short of defamation (see below).

Penghinaan includes things such as calling someone a bastard, dog, spitting on them, removing their peci, and so on.

Defamation under the criminal code

Article 310 of the criminal code criminalizes slander (pencemeraan nama baik) and libel (pencemeraan nama baik tertulis). The sentence is up to 9 months for slander, up to 16 months for libel, and/or up to 4.5 million rp fine. These offences are the Dutch offences smaad and smaadshcrift, still found in the Dutch criminal code at section 261.

The elements of criminal defamation are:

• harming a person’s honour or reputation
• by making an accusation
• with the intention that that accusation become known publicly
• either orally (310(1) — slander), or by broadcasting, displaying or posting in public (310(2) — libel)

It is a defence to a criminal defamation if:

• clearly
• done in the public interest or because of the need to defend oneself

Article 311 defines fitnah (Dutch laster, Dutch article 262), or aggravated defamation (sentence up to 4 years), with the requirement that :

• a judge has decided to examine the veracity of the claim because the accused is claiming they have a defence to defamation, or
• an official has been accused of performing an act in the course of their duties

and therefore:

• the accusation has been shown to be false and
• the accuser knew it to be false

Article 320 covers defamation (as per article 310) of a dead person, with sentence up to 4.5 months. Equivalent to Dutch code article 270. Article 321 applies to the distribution of defamation of the date (equivalent to Dutch code article 271), with sentence up to 1.5 months.

Defamation under article 27A of the ITE law

The ITE defamation provisions are (since 2024) in Article 27A. Previously they formed article 27(3). The elements of ITE defamation are now identical to criminal defamation (criminal code article 310, above), and the maximum sentence has been reduced to 2years and/or 0.4 billion fine, from previous 6 years/1 billion.

The 2024 law clarifies ITE defamation as “acts which degrade the good name or dignity of a person”.

Prior to 2024, the law stated:

• distribute, transmit or make accessible
• material
• which contains an attack on someone’s good name

The post-2024 law is more simple: it is ‘commit a defamation in electronic form’.

A difference can be seen in that for example if you were to comment on a libellous post on social media, then that would ‘make it accessible’, even if your comment says “this is not true”. Post-2024, simply sharing libellous content would not constitute a crime, although if your action in itself constitutes a libel it will remain so.

Previous interpretation guidelines defined the meaning of ‘public’ in ‘made public’ as a large group of people who mostly do not know each other. It includes public groups such as public social media accounts which are unmoderated and anyone can join, but excludes closed groups such as family groups, close friend groups, professional groups, office, campus and educational institution groups.

For members of the press performing their job, law 40/1999 on the Press applies, but when acting in a private capacity, 27A applies.

Eligibility to file a complaint

• Complaints of defamation, insult, false accusation, including ITE defamation can only be brought by the defamed/insulted party (delik aduan)
• Complaints against an official performing in the course of their duties can be brought by any party (penal code article 319 + 316), and the penal code sentence is increased by 1/3
• Complaints about defamation of the dead can be brought by the spouse, grandchildren, grandparents, parents, or children

It is sometimes argued that a victim of defamation/insult (including under ITE article 27A) can only be an individual, not a corporate body (e.g.,a PT). However, in the Supreme Court case of 183 K/Pid/2010, a woman was convicted of libelling a PT.

Lèse-majesté, etc.

Various provisions cover(ed!) these offences.

Articles 134, 136 bis, 137 criminalized insult against the President or Vice President, but was declared unconstitutional by Putusan MK 013–022/PUU-IV/2006, and is no longer in force.

Article 154/155 (up to seven years in prison/4.5 million rp) covered insulting the government, but was declared unconstitutional by Putusan MK 06/PUU-V/2007.

Article 154a (up to 4 years/45 million rp) applies to anyone who defiles the national flag or Garuda Pancasila.

Blasphemy and promotion of atheism

Article 156a of the criminal code imposes a criminal sentence of up to five years for:

• in public
• deliberately
• showing a feeling or making an act that

(a)

• has the essential nature of enmity, misuse or defiling a religion
• that is followed in Indonesia

OR

(b)

• has the intention of causing a person not to follow any religion at all.

Criminal racial and ethnic discrimination

SARA under the criminal code and ITE

Article 156 of the criminal code provides for up to 4 years/4.5 million rp fine for:

• in public
• stating a feeling of enmity, hatred, or defilement to
• one or several groups
• within Indonesian society

Groups are defined as:

• every part of Indonesian society distinguishable based on
• race, national origin, religion, place, ancestry, origin, nationality or legal standing under state administrative law

Article 157 applies to broadcasting or distributing such statements, with the penalty of up to 30 months/4.5 million rupiah.

Article 28(2) of ITE, which still carries a maximum 6 year/1 billion rupiah sentence was reformed in 2024:

• ‘without authority’
• ‘spreads’ was widened to ‘distributes and/or transmits’
• ‘information’ changed to ‘electronic information or electronic documents’
• “intended” -> changed in 2024 to “whose nature is to incite, invite or influence others”
• “to induce feelings of hatred or enmity”
• “towards individuals or groups in the community based on”
• “ethnicity, religion, race and other identifiable groups (suku, agama, ras dan antargolongan (SARA))” -> changed in 2024 to “race, nationality, ethnicity, skin color, religion, beliefs, gender, mental disability, or physical disability”.

This law has been clarified as meaning ‘make public’ e.g. in open social media groups. It does not include a simple statement of opinion or disagreement unless intent to cause hatred can also be proven.

Racial and ethnic discrimination

The law on the elimination of racial and ethnic discrimination (40/2008) defines two types of discriminative acts:

1. showing hatred (up to five years prison/500 million fine) towards a person based on race or ethnicity by:
   a) placing a writing or picture in any place to be seen by other people OR
   b) making a speech or other utterance in any place to be heard by other people OR
   c) wearing such words so that they can be seen by others

2. Up to one year in prison/100 million fine for:

• deliberately
• making a distinction, exception, restriction or selection based on
• race or ethnicity, that causes
• the revocation, reduction of acknowledgment of, acquisition of, or implementation of
• human rights and basic freedoms
• in the areas of civil, politics, economics or social

In addition, under article 17, any act of killing, violence, rape, obscene acts, theft with violence, or deprivation of liberty based on racial or ethnic discrimination is classed as aggravated, with 1/3 is added to the sentence for that act.

Extortion

ITE Article 27B is the digital version of criminal code offence article 368.

Criminal Code article 368 provides for a maximum sentence of 9 years, and requires:

• intent to enrich oneself or another
• in breach of law
• with violence or threats of violence
• to give away some goods/money, create or remove a debt belonging to
• that person or another

According to the interpretation guidelines threats can include things such as exposing private data, photos, etc., BUT the prosecution must prove an economic motive by the perpetrator, as per article 368.

27B is constituted by:

• without authority
• distributing/transmitting electronic information/document
• to force a person by means of a threat
• in order to unlawfully
• enrich themselves or another by
• to give away some goods/money, create or remove a debt belonging to
• that person or another

27B(1) covers a threat of violence, while 27B(2) covers a threat of exposing a secret or threat of defamation. The maximums sentence is six years/1 billion rupiah.

27B(1) is a delik aduan if committed within a family circle. 27B(2) is always a delik aduan.

ITE threats of violence

Article 29 (4y/0.75bill) criminalizes

• without authority sending electronic data/document which contains
• a threat of violence or intimidation
• directly to the victim

This has been clarified not to include threats to property. Intimidation can be to an individual, group, or family. The effect of the intimidation must be proven by means of change of behaviour, and witness to this. This offence can be prosecuted without a complaint from the victim.

Consumer Misinformation

Article 28(1) of ITE covers any person who

• distributes/transmits electronic information/document
• which contains false or misleading information
• which causes a material loss
• to consumers
• in an electronic transaction

The sentence is up to 6 years/ 1 billion rupiah.

This is not aimed at hoaxes or similar: it must result in a measurable financial consumer loss in electronic transaction, such as an online scam.

Causing unrest

Article 28(3) prohibits with a penalty of up to 6 years/1 billion rupiah:

• spreading electronic information/data
• which the spreaders knows to contain false information
• which causes riot (kerusuhan) in the physical domain (i.e., not causing upset only in cyberspace)

Note that articles 14 and 15 of the criminal code, which criminalized causing ‘trouble’ was struck down by the Constitutional Court decision Putusan MK №78/PUU-XXI/2023 as they were too vague.

There is another article 390, of the criminal code which provides a maximum 32 month prison sentence for broadcasting false news in order to unlawfully enrich himself/another by affecting the price of merchandise, funds or securities.

Hacking provisions of the ITE law

Under article 30–37, whomsover:

• deliberately and
• without authority or unlawfull

does

• 30(1) access a computer or electronic system that belongs to someone else by any method — 6 years/600 million rp
• 30(2) as 30(1) plus in order to acquire electronic data/documents — 7 years/700 million rp
• 30(3) as 30(1) plus they breach/break a security system in doing so — 8 years/800 million rp
• 31(1) carries out interception or wiretapping of electronic data/document in a computer or electronic system that belongs to someone else — 10 years/800 million
• 31(2) carries out interception or transmission of non-public electronic data/document from/to/within a computer/electronic system — 10 years/800 million
• 31(3) 31(1) and 31(2) can be done by law enforcement in accordance with the law
• 32(1) changes, adds, removes, reduces, breaks, deletes, moves, hides, electronic data/document belonging to someone else or belonging to the public — 8 years/2 billion
• 32(2) moves or transmits electronic data/document to another electronic system without authority— 9 years/3 billion
• 32(3) as 32(1) but with something was secret becoming accessible by the public with lack of data integrity — 10 years/5 billion
• 33 causes an electronic system to function improperly — 10 years/10 billion
• 35 manipulates, creates, changes, destroys, electronic data/documents in order that they be considered authentic data. (12 years/12 billion)

Other ITE offences

• 34(1) (10 yrs/10 billion) produces, sells, supplies for use, imports, distributes, makes available, or possesses:
  a) any hardware or software specifically developed for the crimes in ITE articles 27–33
  b) any password to enable the crimes in articles 27–33 to be committed
  34(2) specifically clarifies that no crime is committed if such hardware/software is supplied for lawful security/testing purposes
• 36 does any action in ITE 30–34 (changed from 27–34 by law 1 of 2024), causing a direct material (measurable in financial terms) loss to another individual or legal body (12 years/12 billion)
• 37 does any action in ITE 27–37 outside of Indonesia to a system in Indonesian jurisdiction

Conclusions

The ITE law specifically criminalizes in a digital context existing criminal behaviour, as well as gold-plating the offences:

• 27(1) indecent content. As demonstrated above pornography is already subject to stiff penalties, and the underlying prohibition on indecent materials was created by the Dutch. However the definition of what is indecent can include anything deemed to violate contemporary Indonesian morés. However ITE is nothing more than a lex specialis or specific law (for digital content), which certainly encourages prosecution of indecent content online (given that certain provisions in the criminal code are never punished) but does not make illegal that which was previously legal.
• 27(2) gambling. Already illegal in Indonesia under colonial law, but the ITE law again encourages the prosecution of content here, and perhaps there may be wider application than under an outdated colonial law, but surely no wider than under a hypothetical contemporary gambling law. The ITE law can be seen to cover social media stars shilling for online gambling.
• 27A defamation. Already illegal in Indonesia and the Netherlands
• 27B extortion. Simply the digital version of the underlying extortion offence (which carries a longer maximum sentence)
• 28(1) false information in the context of consumer contracts — this covers false advertising etc. online
• 28(2) hate speech — Post-2024, the scope of this is more limited in its scope. However, it still exceeds the underlying hatred law which only covers groups — this covers hatred towards individuals based on their membership of a group.
• 28(3) Convers incitement of riot
• 29 threats of violence
• 36 causing direct actual material losses to any legal or natural person on the basis of articles 30–34

Article 36 was named as problematic in that it enhances the penalty for ITE offences to absurd degrees. For example Nikita Mirzani is said to have defamed Dito Mahendra by accusing her of hitting somebody, in Nikita’s Instagram story. This could constitute a libel under article 310 of the colonial code (16 months in prison) and thus under ITE 27(3) (as it then was) 6years (now under 27A 2 years). However, by showing evidence that a woman had cancelled an order of some Hermés shoes costing 16.5 million from Dito Mahendra as a result of the alleged libel, Nikita was charged under article 36 with a maximum sentence of 12 years. The question of whether the alleged loss is real since the shoes could be sold to someone else, is not answered. However, post-2024 Article 36 only covers the hacking offences (articles 30–34), so this ability to trump up charges to absurd degrees has been eliminated.

In jurisdictions such as England & Wales, the libel would be purely a civil matter, and Dito Mahendra could file suit (expensively!) for damages, as indeed she can in Indonesia. However in Indonesia Nikita was arrested and detained (in October 2022) under the basis of a purportedly very serious criminal offence.

Another case involving criminal proceedings over Instastories was that of Medina Zein who was sentenced to 6 months in prison for ITE 27(3) for false accusations. There are many more cases where people have been sentenced for what in other countries might be civil defamation disputes, but in Indonesia involve criminal charges. As mentioned above, this is ultimately a legacy of the Dutch criminal code, which Indonesia has kept for over 150 years.

The criticism of the ITE law is that compared with the underlying SARA law it criminalizes ‘spreading’ (e.g., by retweeting or replying to offensive comment) of any content,

ITE cases other than defamation include that of Ahmad Dhani who was convicted of hate speech under 28(2). The case under the ITE law is easier to prove than under the criminal code, since it criminalizes hatred towards an individual where that hatred is based on SARA (i.e. differences based on group membership). In this case, hatred towards Ahok based on a SARA element is criminalized, whereas in most jurisdictions hate speech would need to be directed at stirring up hatred of a specific group, not an individual member.

A further criticism of the ITE law is that it can be applied partially — in theory the police should investigate all accusations of violations of ITE law, but whether they do is likely to depend on factors such as legal representation, wealth, and so on.

References

• ITE law 11/2008 as modified by law 19/2016 and 1/2024 (in Indonesian)
• Joint declaration of the head of police, ministry of communications, and prosecutors in interpretation of certain articles in the ITE law of 2021
• Circular of the police on handling cases of hatred of 2015 (which is somewhat outdated due to law 19/2016 and the joint declaration of 2021)
• The criminal code (which will be superseded by the new criminal code in January 2026)