Criminal Penalties in Cyberspace: Between the Development of Digital Democracy and Authoritarianism

Abstract

This study examines the implementation of Articles 27, 28, and 45 of the Information and Electronic Transactions Law (UU ITE) in the context of freedom of expression and digital democracy in Indonesia, both before and after the 2016 and 2024 amendments. Utilizing a normative approach that integrates conceptual, comparative, and futuristic methods, the research aims to analyze how these regulatory changes affect political participation in cyberspace and foster a climate of surveillance that may hinder digital democracy. This study also employs positivist legal theory, justice theory, and human rights principles to understand the socio-political and legal implications of these provisions. The findings reveal that Article 27 on defamation, Article 28 on the dissemination of false information and hate speech, and Article 45 on criminal sanctions significantly impact freedom of expression. The implementation of these provisions is often ambiguous and subjective, leading to potential misuse for suppressing criticism of the government and public officials. Although the 2024 amendments introduced changes, such as the removal of Article 27 paragraph (3) and the addition of Articles 27A and 27B, challenges persist due to vague legal language and severe penalties. This ambiguity creates a "chilling effect," deterring individuals from expressing criticism or engaging in open political discourse in the digital sphere. Furthermore, the study explores the implications of these regulations for the future of digital democracy in Indonesia, particularly in the context of information control. The findings highlight that the UU ITE facilitates non-transparent surveillance, which restricts freedom of expression and political participation. To foster a healthier digital ecosystem, the study recommends more inclusive reforms of the UU ITE, involving various stakeholders, enhancing digital literacy, and promoting collaboration between the government, digital platforms, and society. This research contributes novel insights into the interaction between cyber regulations, freedom of expression, and digital democracy in Indonesia by offering policy perspectives that support fairer and more democratic cyber governance.