Managing hate speech or muzzling freedom of expression?

Author

Irfan Abubakar is the director of the Centre for the Study of Religion and Culture at Syarif Hidayatullah State Islamic University (UIN) in Jakarta.

Definitions of hate speech must strike a balance between protecting freedom of expression and restricting forms of speech that seek to incite discrimination, hostility or violence. Photo by Flickr user sbamueller.

 

 

The release last month of a police circular on management of hate speech (ujaran kebencian) has fired up Indonesian civil society, with many fearing a return to New Order-style restrictions on freedom of expression. Democracy activists have viewed the expansive scope of the circular as a sign of the Joko Widodo administration’s paranoia about criticism, and just another example of the reform backsliding that has occurred under his tenure. These concerns are premature. If implemented as intended, the circular in fact offers considerable potential for prevention of religious conflict.

 

The situation has not been helped by police who attempted to connect the circular on hate speech to the case of an internet user who claimed Jokowi had staged a widely published photo with the Suku Anak Dalam indigenous community in Jambi. The media has also fuelled misunderstanding, for example, by reporting that an internet user from Ponorogo, East Java, was being investigated for hate speech for posting a meme mocking a policeman receiving a bribe.

 

Types of “hate speech” covered by Circular SE/06/X/2015 include slander or libel (penghinaan), defamation (pencemaran nama baik), blasphemy (penistaan), antisocial behaviour (perbuatan yang tidak menyenangkan), provocation (provokasi), incitement (to violence) (penghasutan) and dissemination of “false news” (penyebaran berita bohong). With such a bloated interpretation of hate speech it is understandable that the circular has prompted confusion and concern.

 

Definitions of hate speech must strike a balance between, on the one hand, protecting freedom of expression and, on the other, restricting forms of speech that seek to incite discrimination, hostility or violence. Only provocation and incitement fit accepted academic and legal understandings of hate speech; defamation, antisocial behaviour and dissemination of false news do not.

 

But the circular goes on to restrict hate speech to speech or writing (including speech or writing in the categories above) expressed in public with the “intention of inciting and provoking hatred toward individuals and/or groups in the community on account of their ethnicity, religion, religious sect, faith or belief, race, class, skin colour, gender, disability, or sexual orientation”. It is important to understand that although the definition of hate speech is broad, so long as slander, libel, defamation, or disseminating false news are not intended to incite or provoke hatred, they will not technically constitute hate speech.

 

A circular is not legislation under Indonesian law, it is closer in nature to an internal rule intended to guide the implementation of existing legislation. Article 156 of the Criminal Code (KUHP) includes a broad definition of hate speech. Relevant but not exhaustive provisions are also found in Law No. 12 of 2005 on the Ratification of the International Covenant on Civil and Political Rights, and Law No. 40 of 2008 on the Elimination of Racial and Ethnic Discrimination, among others. There is, however, no specific-purpose legislation regulating hate speech.

 

The circular on hate speech was originally intended to respond to a need within the National Police for stronger operational guidelines on management of hate speech in the field. Although the circular might appear to have come out of nowhere, its formulation was facilitated by the National Police Commission (Kompolnas) from early 2014. This process involved consultations with hundreds of senior police in regions that have struggled with the management of hate speech, such as West Java, East Java and South Sulawesi.

 

Police have been hesitant to supress speech or text that incites hatred or violence toward minorities, viewing the behaviour as a component of the freedom of expression guaranteed under the 1945 Indonesian Constitution and human rights legislation. Police report that they fear being accused of violating human rights if they do so (although fear of retaliation from violent groups likely plays a role too). The goal of the circular was therefore to strengthen understanding of hate speech across the police force and provide officers with better techniques for responding to it before violence results.

 

Media reporting on the issue has promoted the false impression that the circular was intended to muzzle the public. As a result, this does seem to be an early side effect of the policy. A recent survey revealed a significant drop in offensive tweets mentioning Jokowi since the circular was issued, despite the fact that insulting the president or his policies cannot be categorised as hate speech, because hate speech does not include political criticism, only hatred on the basis of ethnicity, religion, faith, race, skin colour, gender, disability or sexuality. The public response is understandable, however, given the police force’s historic overuse of the defamation article in the 2008 Information and Electronic Transactions Law. They may be justified in fearing that some police will ignore definitional niceties in the circular.

 

But has the circular had a similar effect on the intolerant groups that have actively promoted hate speech against minority communities? Not long after the circular was released, a prominent member of the Islamic Defenders Front (FPI) said that the organisation realised it was one of the intended targets of the circular, but that it was not afraid and would continue to defend its convictions.

 

The release of the circular set off a vigorous debate among human rights activists. Soon after it was published, a representative from the National Commission on Human Rights (Komnas HAM) denounced the policy. Media activists also criticised the circular as an attack on freedom of speech and expression. Supporters of religious freedom, however, have largely welcomed the circular, describing it as an important breakthrough in the prevention of violence and discrimination against minorities. The tension between these two points of view is, in fact, a classic feature of discussions on hate speech across the globe.

 

The circular is important momentum for improved state protection of minority religious groups whose rights have too often been violated. But how far the circular is able to contribute to improved management of religious conflict depends on the commitment of police to actually implement the circular in the way its drafters intended.

 

The first few weeks since the circular’s release have shown that there is clearly still a need to promote a common understanding of hate speech among police. It is promising, therefore, that Police Chief Badrodin Haiti has invited civil society activists to develop a more comprehensive explanation of hate speech and provide concrete examples of the types of behaviour considered hate speech. This will be sent out as an addendum to the circular in an attempt to clear up misconceptions.

 

At the same time, police now have the tough job of responding to scepticism and misunderstanding in the community because of the widespread equation of hate speech with all forms of public criticism. It must be stressed that the circular was not intended to silence freedom of expression or smother democratic reforms. Rather, it is a much-needed reminder to police to act on hate speech before it becomes hate crime.