Criminalization of Hate Speech in Indonesian Positive Law: A Proportionality Analysis of Restrictions on Freedom of Expression

Abstract

The rapid development of information and communication technology has expanded freedom of expression while simultaneously increasing the dissemination of hate speech through digital media. This phenomenon has prompted the state to criminalize hate speech in order to protect public order, human dignity, and the rights of vulnerable groups. However, the regulation of hate speech in Indonesian positive law continues to raise concerns regarding legal certainty and the risk of excessive restrictions on freedom of expression. This study aims to analyze the regulation of hate speech criminalization in Indonesian positive law, examine the legitimacy of its restrictions within the constitutional framework, and assess its conformity with the principle of proportionality. This research employs normative legal research using statutory and conceptual approaches. Legal materials were analyzed qualitatively through the theories of the Rule of Law, freedom of expression, and proportionality. The findings indicate that the criminalization of hate speech possesses a legitimate constitutional basis under Article 28J paragraph (2) of the 1945 Constitution. Nevertheless, several provisions within the Electronic Information and Transactions Law and the Criminal Code contain vague formulations that may undermine legal certainty. Based on the proportionality test, Article 300 of the Criminal Code is considered more proportionate than Article 28 paragraph (2) and Article 29 of the Electronic Information and Transactions Law because it provides clearer limitations and greater protection for legitimate expressions.