A few words on hate speech, defamation

Miftah Fadhli, The JakartaPost, 20 November 2015

The recent circular from the National Police, listed as No. SE/6/X/2015 on hate speech, has been deemed erroneous in its regulatory design. The circular specifies that “slander” and “defamation” are categorized under crimes of hate speech.

Categorizing slander and defamation in the circular depicts the perplexed understanding of law enforcement officers on hate speech.

In fact, hate speech is already regulated in three provisions. First, hate speech and hatred in the context of religion is stipulated in articles 156, 156a and 157 of the Criminal Code (KUHP). Another is in Article 28, paragraph 2 and Article 45 paragraph 2 of Law No. 11/2008 on electronic information and transactions (UU ITE), which forbids any form of hate speech in terms of ethnicity, religion, race and inter group relations (SARA). The last provision is hate speech related to race and ethnicity as specified in articles 4 and 6 of Law No. 40/2008 on the abolishment of racial and ethnic discrimination (UU PDRE).

In short, the KUHP regulates offline hate speech, while UU ITE regulates online hate speech. Moreover, UU PDRE restricts its terminology on “public space”, which can further be interpreted as both offline and online.

In the context of acts of defamation and slander, they are stipulated in both the KUHP and
UU ITE. In the KUHP, defamation is regulated under Chapter XVI on slander, which comprises 22 articles. However, the most frequently used is Article 310 on degrading dignity and Article 311 on defamation. All the said articles regulate offline crime.

Meanwhile, online defamation is specified in Article 27, paragraph 3 of UU ITE, which criminalizes “anyone who deliberately distributes and/or transmits and/or makes accessible electronic information or documents that contain slanderous and defamatory language.”

According to the circular, hate speech comprises seven kinds of conduct, namely, slander, defamation, blasphemy, unpleasant acts, provocation, sedition and hoax spreading. Therefore, the police decided to integrate articles 310 and 311 of the Criminal Code on defamation. Yet, it does not include Article 27, paragraph 3 of UU ITE on the scope of hate speech if they meant to categorize defamation as hate speech. Instead, crimes regulated under Article 27, paragraph 3 of UU ITE are exactly the same as articles 310 and 311 of Criminal Code.

Hate speech is a phenomenon that should be tackled as soon as possible.

Seen from its normative aspect, the police have committed a double mistake. First, the circular exceeded police institutional authority by defining hate speech broader than that which is regulated in the Criminal Code, UU ITE and UU PDRE. The other flaw is that the circular attests the chaotic legal logic assuming that articles 310 and 311 of the KUHP are inclusive in that defamation is listed as hate speech, yet it still excludes Article 27 of UU ITE. With regard to the last error, the conceptual muddle over the inclusion of two articles of KUHP in the circular needs to be revealed.

Alexander Brown (2015) clustered hate speech into 10 kinds of conduct in which group defamation is inclusive. Hate speech is generally defined as a statement conveyed with vituperation and provocation to trigger violence due to the hatred to certain person or community group. In the US, expressing hatred is considered a crime once it is actualized into crime. Different from hate speech in general, hate crime is not simply delivered through speech but also action.

In general, defamation is closely related to the degrading of individual reputation by spreading opinion deemed as facts. In the context of hate speech, defamation is targeted at certain individuals or group of persons based on hatred toward a specific identity (such as religion, race, ethnicity, colors, sexual orientation, gender etc). Defamation in the context of hate speech does not simply degrade reputation (by spreading lies) but also negates the fundamental rights of others in the society, such as right to live and equality and freedom of expression. If hate speech is targeted at an individual, it also covers the hatred toward the identity of the group in which they are settled.

Jeremy Waldron in his book The Harm in Hate Speech revealed four elements of hate speech (2015: 57-59). First, there is a stereotypical accusation toward certain groups, as in the statement, “All Muslims are terrorists”. Second, it attaches a statement that falls on opinion rather than fact, which denigrates the identity of certain groups.

The third element disregards the normative basis of the equal standing of others in the society. Lastly, the embodiment of slogans intended to agitate the existence of certain groups, such as, “Shiites should get out of here” or, “Chinese don’t belong in Indonesia”.

In European countries such as Germany and Denmark, there is a distinction between defamation as general crime and hate speech. In Germany, defamation as general crime is regulated in articles 185-200 of German Penal Code comprising slander, character defamation and spreading lies. Meanwhile, hate speech is stipulated in section 130 of German Penal Code. Similarly, hate speech is also regulated in Article 266b of the Danish Penal Code, section 251 of Norwegian Penal Code and Article 29 of Law on Press Freedom of France. Indeed, both defamation as a general crime and hate speech are treated differently in each of those countries.

Hate speech is a phenomenon that should be tackled as soon as possible. Such practices do not fill the public with a spirit of unity in diversity. It tries to deny diversity by disregarding the freedom of expression of other groups. Therefore, the regulatory design must concern the context, content, purpose and range of speech in addition to the relationship between the speakers, the target and the impact it may have. Hate speech can never be simplified to only defamation or slander.

Articles 310 and 311 of the Criminal Code have distinctive principles from other articles on hate speech. First of all is that the formulation does not embed a stereotypical statement. The other ones include no defamation toward certain groups and no statement based on hatred toward the identity of certain groups. Moreover, the act of defaming included in the two articles is not meant to repudiate the existence of certain groups.

After all, the aforementioned provisions on hate speech have already covered all the four said characteristics so that articles 310 and 311 are not necessarily included.

Equalizing articles 310 and 311 of the KUHP on defamation with hate speech is a fatal error. Law enforcement will list the category of crimes as principally different from each other, even though they are treated equally.

Instead, the principles of proportionality and necessity should govern justice in law enforcement.

The writer is human rights researcher at the Institute for Policy Research and Advocacy (ELSAM). The views expressed are his own.