Balancing Freedom of Expression and Criminal Law in the Digital Age: A Comparative Constitutional Analysis of Indonesia and The Gambia

Introduction

The quick development of digital communication technologies has greatly disrupted the balance between expressively free rights as defined by constitutional norms and state powers to enact criminal law. The issue at hand is not one of simple public policy but a profound constitutional dilemma as regards the legitimate limits of criminalization in modern democracies where digital technology has enabled citizens in one way and presented new avenues for misconduct on the other hand. The key theoretical question underlying this review is: What are the necessary conditions under which the imposition of criminal sanctions upon digital expression can be justified in terms of constitutional necessity and proportionality, and how do distinct constitutional traditions manage the fundamental dilemma inherent in democratic self-governance and law enforcement?

Indonesia and The Gambia are two particularly interesting theoretical case studies since they reveal alternative approaches which post-authoritarian constitutions may follow in balancing democratic freedoms and criminal regulation in the digital environment[1]. Though both countries have made great strides towards democracy, their constitutional structures, judicial approach and legal policies differ fundamentally to reveal a series of fundamental theoretical issues.

According to the literature, Indonesia has developed a comprehensive criminal regulatory scheme regulating online speech, mostly through the Electronic Information and Transactions Law (ITE Law) and the recently promulgated Penal Code 2023, that has received constant academic critique for its potentially oppressive impact on democratic communication[2][3]. The Gambia, emerging from years of repressive regimes’ control over expression, follows an entirely different path in which constitutional reform and judicial activism have been used to overturn the legacy of restrictive criminal regulation of speech[4]. Such comparative perspective allows theorizing about how the constitutions balance competing values where criminal law interferes with fundamental rights in digital public sphere.

The review will be carried out through the lens of four thematic syntheses based not on jurisdictional analysis but on the core theoretical problems: (1) constitutional design of expressive freedom and its limits; (2) dialectics of criminalization and freedom in digital environment; (3) proportionality as a disputed constitutional concept; and (4) judicial balancing of constitutional disputes. The review concludes with synthesis of theoretical disagreements and future research agenda of unresolved constitutional problems.

Constitutional Foundations: The Structure of Limited Freedom

The Dilemma of Constitutionally Limited Rights

An inherent contradiction lies at the heart of both constitutional traditions: freedom of expression is not only declared as an essential freedom but limited explicitly. Far from being a paradox, this phenomenon is a feature of constitutional construction referred to as “the internal limitations doctrine,” according to which each right contains the seeds of its own limitation[5]. Individual fundamental rights are protected through legal tests such as proportionality analysis, in which fundamental rights are balanced against the interests of the state, and it is established that there is no such thing as an absolute right that exists separately from the constitutional community.

In Indonesia, the structure of constitutional protections involves a layer of limitation. The articles 28E(3) and 28F of the constitution of 1945 state that there is a freedom of expression and communication, whereas the article 28J permits the limitation of such freedom on account of morality, religious beliefs, security, and public order in a democratic society[6]. In simple terms, the concept of “qualified rights” applies here in the sense that legislation may interfere in such rights if they fulfil the constitutional need of democracy[7].

The Gambian constitutional system under Section 25(1)(a) of the 1997 constitution similarly provides for freedom of expression, speech, and the press while allowing restrictions “reasonably required in the interest of defence, public safety, public order, public morality, or protecting the rights of others[8].” This phraseology suggests that the use of the word “reasonably required” denotes a higher standard than that of reasonableness, implying that the Gambian constitution requires something closer to necessity than preference by the government.

Divergent Constitutional Foundations

The two constitutional systems differ greatly on the underlying premise of how individual expression and community order should relate to one another. The Indonesian constitutional system is based on Pancasila democracy which sees freedom as part of a communitarian philosophy in which individual rights are in constant dialogue with the collective values of unity, harmony, and social solidarity[9]. It is shown from research show that Indonesia follows the notion of “speech freedom as liberty with limits” that is, the speech content cannot clash with the unity and integrity values enshrined within the constitution[10].

It is shown from research findings that Indonesia subscribes to the “freedom of speech as liberty with restrictions” concept, in which the content of the speech does not contravene the values of unity and integrity.

This communitarian conception contrasts with the individualistic liberal model underlying the constitutional guarantees of Gambia, which have their roots in common law traditions as well as international human rights treaties on individual freedom vis-à-vis state power. The importance of this difference in terms of theoretical underpinning cannot be underestimated, as it defines not only the criteria of what constitutes protected vs criminal expression, but also the entire way the constitutional analysis takes place and the very nature of justifications for making such an expression criminal.

Studies comparing Indonesia with liberal democracies show that there is a unique approach to the concept of freedom of expression in Indonesia due to its history, politics, culture, and society, which makes it somewhat different from the western understanding that allows negative or even untrue opinions to be voiced in public as long as they “do not threaten individual, public order, or even national security” [11]. It is crucial to understand that this difference goes much further than just the preference of certain policy, it is a fundamental theoretical distinction in the understanding of the role of harmful expression in constitutional law.

III. The Criminalization-Freedom Dialectic in the Digital Space

Digitalization as a Constitutional Driver

While digitalization has produced novel spaces for expression, it has also fundamentally transformed the essence of expressive activities, posing constitutional issues which previous approaches were unable to deal with. It has been shown that the evolution of information and communication technology has led people to reconsider both the issue of disinformation and freedom of expression, thus posing qualitatively novel questions for constitutional governance[12]. “Social media have evolved into a virtual public sphere, which is able to affect the reputation of both individuals and institutions at unlimited speed and scope, and requires a flexible regulation”[13].

It produces a phenomenon that can be called a constitutional asymmetry problem since digitalization makes it difficult to strike a balance between the enhancement of democratic values of expression and its damaging impact to prevent criminalization from suppressing legitimate democratic actions. “Digital age has brought about a fundamental change in the communication processes of the Indonesian society in social media, at the same time raising complicated problems in criminal law”[14].

The criminal regulatory framework of Indonesia: The ITE Law and others

With the emergence of the digital threats to Indonesia, a sophisticated criminal regulatory scheme has been developed, and this regulation is primarily focused around the ITE Law (Law No. 11 of 2008, as amended by Law No. 19 of 2016 and Law No.1 of 2024). The academic literature sees in the existence of this legislation a contradiction between its function of protecting and the way it restricts democratic speech. There is evidence that “the effectiveness of the law is hampered by ambiguous wording, lack of resources, and insufficient cooperation with social networks”[15], while at the same time it becomes an instrument of regulating the right to free speech and causing rights abuses.

Such evidence is plentiful. According to Amnesty International, in 2020 there were 132 violations of the right to freedom of expression committed by the means of the ITE Law involving a total of 156 people, among them 18 activists and four journalists, and 56 such violations in 2021 involving 62 victims[16]. This example shows that criminal provisions aimed at prohibiting dangerous activities online are always used against those individuals, journalists, activists, civil society actors, who are primarily protected by constitutional guarantees of freedom of expression.

The scope of criminal offenses in Indonesia is regulated by several laws. First, the ITE Law makes it a crime to publish online defamation, dissemination of misleading information, hate speech, and threatening messages[17]. Second, the Criminal Code (KUHP), fully amended in 2023 by Law No. 1, regulates defamation, insults toward public servants, incitement, and contempt of court[18]. This system of crimes leads to what scholars call the problem of “overcriminalization,” when several overlapping norms create ambiguity and selective enforcement.

Scholars have found the 2023 Criminal Code relevant for discussion in connection with its impact on democratic expressions. In critical examination, it is argued that despite the statement in the preamble of the 2023 Criminal Code that it is aimed at “democratise, decolonise and consolidate Indonesian criminal law, this article demonstrates that it has achieved the opposite” by “seriously hampering free speech, including legitimate criticism of government officeholders and institutions”[19]. The provisions on the contempt of court contained in the Article 280 of the new Criminal Code exemplify this conflict vividly. Being introduced to “maintain order and respect the authority of the courts,” the provisions also “raise concerns regarding its impact on freedom of expression and potential abuses that could limit constructive criticism of the judicial system”[20].

The Constitutional Court Decision No. 105/PUU-XXII/2024 made on April 29, 2025, stands out as a significant intervention in constitutional adjudication “and has shifted the legal paradigm of defamation by restricting the object of the offense solely to individual persons”[21]. The decision exemplifies the impact of the constitutional adjudication on overcriminalization by narrowing the scope of the defamation provisions and thereby excluding institutional defamation from criminal prosecution.

The Gambia’s Criminal Law Framework

The Gambian case is unique from a theoretical standpoint, being characterised by gradual elimination of legacy criminal prohibitions on free expression rather than development of new regulatory framework. Most criminal provisions against freedom of expression in The Gambia are enshrined in the criminal law of the country, where “sedition law [criminalises] a wide variety of speech seen as potentially threatening to the state”[22]. The democratization after 2017 has led to the creation of conditions for legislative reforms aimed at aligning domestic criminal law with constitutional principles and international human rights standards.

The comparison of rights guaranteed by the constitutions of the two countries demonstrates that “The Gambia eventually suffered consequences for expressing their right to free expression” under the authoritarian rule, which provides a historical background for the use of criminal laws as instruments of political oppression rather than justified prevention of harm[23]. Such a history has formed a constitutional culture that is increasingly suspicious of criminal provisions against expression, especially when such measures may repeat authoritarian patterns of dissent suppression.

Further research into the relationship between state security and human rights in both states helps to explain how each of the constitutional systems deals with the issue of balancing security and freedom of expression[24]. The theoretical relevance is found in the differences of institutional learning, whereby Indonesia continues to strengthen its criminal regulations, even after its democratic transition, compared to The Gambia’s trend towards de-criminalizing political expression, showing that a constitutional commitment to democratic ideals does not necessarily yield similar results.

Specific Types of Criminalized Expression

Several different types of situations in which there is an intersection of criminal laws and digital expression have been identified:

Disinformation and fake news. The criminalization of disinformation is perhaps the most controversial theoretical field. In Indonesia, Articles 14 and 15 of Law No. 1/1946 criminalize disinformation in the public space, with the same provisions being transferred into the new Penal Code[25][26]. Constitutional concern arises because “in a democratic society, the criminalisation of spreading disinformation is considered a breach of freedom of speech”[27], but in the Indonesian legal context, such prohibitions may be justified “on the basis of protection of a legal interest from harmful behaviour”[28]. The scholarly discussion brings to light a controversy around preventing harm and maintaining democracy through open public discourse, regardless of its accuracy.

Defamation. Criminal defamation cases are among the most common examples of intersection between criminal law and freedom of expression in Indonesia. The development of defamation regulation shows a pattern of gradual narrowing due to constitutional court decisions. This process has been particularly intensified by the emergence of the digital era since social media increases reputational damage and at the same time makes criminal prosecutions for defamation of the citizenry more common[29][30].

Hate Speech. Hate Speech regulation assumes an analytically different status since the regulation targets speech due to the discriminatory nature of the message rather than false content and defamation. Scientific studies show that “unlimited freedom of opinion may lead to criminal hate speech actions”[31], which makes it possible to provide constitutional justification for regulating hate speech, but at the same time, it raises the issue of boundaries of political speech that stops being legitimate when it comes to hate crimes. The problem of boundaries becomes more complex when we talk about the Internet because scientific research into the legal boundaries of the freedom of expression and hate speech in digital activism shows that “ITE Law is sometimes used as a means of silencing political expression, the tendency of reports against activists is becoming more frequent within the last four years”[32].

Contempt of court and insult to authority. Criminalizing expression criticizing state institutions and officials presents the problem of constitutional conflict particularly sharply because it involves expression that is, in fact, political criticism that democratic constitutions are meant to protect[33].

Proportionality as a Disputed Constitutional Doctrine

The Doctrine and Its Constituents

Proportionality serves as the principal constitutional doctrine used by courts to ascertain if the criminal restrictions on expression meet the constitutional standards. Proportionality consists of four components: the legitimate purpose, suitability, necessity, and proportionality stricto sensu (balancing). The value of this model is that it allows courts to assess the appropriate level of state intrusion into the exercise of fundamental rights.

As per the international human rights law, especially the ICCPR, the criminal restrictions on expression must be “prescribed by law” and “necessary” for protection of certain interests – the standard which implies more than simple government’s favor of the restriction. The emergencies also should comply with the criteria of “legality, necessity, proportionality, and non-discrimination”[34]. The clause of constitutional limitations in Indonesia (Article 28J) and in The Gambia (Section 25(4)) both contain the reasoning based on the principle of proportionality, albeit in very different ways.

Studies about the manner through which Indonesia deals with freedom of speech in the constitutional law framework have shown that “limitations on freedom of speech in Indonesia are regulated according to international legal standards that guarantee freedom of expression but also allow such freedom of speech to be curtailed ‘for the good of public interest, morality and national security'”[35]. Such a statement illustrates clearly the theoretical vagueness involved in proportionality doctrine, whereby the principle itself is officially acknowledged but allows a wide margin of discretion for the State regarding terms such as “public interest” and “national security.”

Contrasting Applications

The divergence between the theoretical basis of the two nations can be easily observed through the way proportionality tests are carried out. For instance, in Indonesia, proportionality test is mainly used for judicial reviews done by the Constitutional Court whenever laws are challenged. In addition, the drafting of laws is done in such a way that there are extensive criminal provisions that allow for proportionality tests after the legislation of laws. Research about the Gambian criminal law context finds several criminal law statutes which “impose undue restrictions on individual freedom” but fail to specify adequately “when expression may be restricted”[36]. It is reasonable to assume the same problems of legislative specification will arise in the study of other criminal law contexts.

The comparison of the Gambian criminal law context with other constitutional systems is revealing. Research on the comparison of freedom of expression in Indonesia and Canada proves that even though “the freedom of expression, in two different countries such as Indonesia and Canada,” it “can play a more effective role in a society with a multicultural character that complies with the rule of law”[37]. This implies that proportionality analysis can be adapted to a different constitutional system while retaining the constraint against disproportionate criminal intervention.

In the same way, comparison with the U.S. reveals philosophical differences in the proportionality analysis. Research on freedom of expression in Indonesia and the U.S. proves the divergent attitude to the relationship of rights and limitations, where Indonesia enforces the communitarian constraints unacceptable for the First Amendment doctrine[38].

Rubber Article Problem

An especially distinctive feature of the Indonesian literature on the subject is the concept of “rubber articles,” or criminal provisions which are so broadly written that they can be applied to almost any form of expression that is considered unacceptable by the authorities. Studies indicate that the digital space of expression “frequently faces repressive regulations, especially due to the existence of rubber articles under the ITE law”[39]. The problem is the failure of the principle of legality, the principle which requires criminal provisions to be clear enough to allow people to determine which behaviour is criminalized.

The problem of rubber articles reveals an inherent theoretical dilemma between the formal adoption of the proportionality approach and its actual application. When the criminal provisions are written so broadly that they apply to both offensive expression and legitimate critique, the proportionality test at the enforcement level becomes a replacement for proper specification of the criminal provisions, which means shifting the fundamental rights question from the constitutional level to the prosecutorial and policing one.

The Role of the Judiciary: Constitutional Custodianship and Its Limits

Judicial Activism and Judicial Restraint

The scholarly literature demonstrates a stark difference in the judicial stance adopted by the courts within each country. In Indonesia, the Constitutional Court, for example, has engaged in an approach of what could be called restrained activism, where they uphold the general constitutionality of legislation on criminal speech laws but constrain its applicability through interpretive techniques. This can be seen, for example, in a recent decision of the Constitutional Court in which it restricted the definition of defamation to only refer to individuals[40].

In Gambia, however, the courts have displayed a trend of transformative adjudication, where they are willing to strike down criminal provisions insofar as they unduly restrict constitutionally protected forms of expression.

B. Limitations on Judicial Protection

A recurrent problem with judicial protection is that constitutional adjudication is a retroactive process involving the individual consideration of threats to a particular provision of the constitution. It has been found through research that any reform needs systemic actions such as “developing a clear code of conduct, providing periodic training to law enforcement and court officials, developing a clear complaint mechanism, and undertaking systematic assessments” of the impact of criminal provisions on expression[41]. The acknowledgment that judicial protection is not enough to protect against chilling effect is an essential theoretical finding about structural barriers in rights adjudication of overcriminalization.

Indonesian case shows that even in cases when there was judicial review of laws, “the persistence of prosecutions based on speech-related offenses indicates that constitutional protection alone may not be sufficient to guard against inconsistent application of broadly drafted criminal provisions”[42]. Enforcement biases are noted in literature as a consistent structural barrier “to free speech” regardless of the existence of constitutional safeguards and judicial review.

The Digital Activism Dilemma

A specific instance of judicial conflict arises from the realm of digital activism where the act of expression is both political participation and a possible offense. It has been established that digital technology “has fostered the development of digital activism as a new method for citizens to express opinions and advocate socio-political rights”[43]. But this very expression is criminalized by using widely written digital communications law. Conflict between social media as the medium of democratic expression and as the platform of criminal expression highlights the inefficiencies of pre-existing digital constitutional framework for the mediation of conflicts of expression.

Social Media Paradox – where the platforms provide “a purer form of expression” but simultaneously provide litigations by applying criminal law – raises essential issues of conflict with freedom of expression which judicial frameworks cannot solve satisfactorily.[44]

Synthesis: Sources of Theoretical Disagreement

Cross-cutting mechanism comparison

The comparative analysis shows that the theoretical disagreements between Indonesia and The Gambia are based on four analytically distinct sources:

First, the starting constitutional philosophies differ in their assumptions about expression as something either inherently social (in case of Indonesia) and rooted in Pancasila-based communitarian approach or as an individual right against government, inspired by liberal internationalist norms shaping the constitutional framework of The Gambia.

Second, historical institutionalism gives rise to path dependent effects: the process of democratic transition of Indonesia paradoxically increased the criminalization of expression through the enactment of ITE Law and the revision of Criminal Code, while in The Gambia democratic transition created a tendency towards decriminalization of expression.

Third, the postures of the respective judiciaries also differ and depend on constitutional culture: Indonesian judiciary is reluctant when it comes to legislative policy choices but constrains their application, while Gambian courts readily invalidate provisions as being constitutionally excessive.

Fourth, the differentiating stage of digital governance development indicates that Indonesia has gained much experience with digital speech regulation’s pathologies, including enforcement discrimination, chilling effect, and rubber articles, while the digital governance system of The Gambia is still developing, offering both advantages and threats of replicating the same patterns of overcriminalization.

Conceptual Framework Underlying

Comparative research reveals the need to embrace an integrated conceptual framework since constitutional protection of digital expression involves three different analytical levels:

Effective constitutional protection is dependent on congruence among all three aspects. If the constitution allows extensive limitations, and there are no requirements for specifying restrictions in legislative language, and judicial review is only retroactive, then this results in systematic under-protection of expression regardless of the existence of constitutional provisions, which is exactly what the Indonesian scholarship points out.

VII. Future Research Agenda

This review of the literature points out several issues for future research, in particular the following questions:

First, chilling effect needs more theorizing than what the literature now offers. Even though the literature confirms that the level of expression falls in response to criminal prosecution, the exact mechanisms of operation, be it deterrence, internalization, or signalling, need more theoretical development. Comparing how chilling effects manifest in communitarian and individualistic constitutional cultures could be informative.

Secondly, the need for theoretical development of the adaptation of proportionality doctrine to digital environment is evident. Traditionally, proportionality doctrine has considered expressive actions to be relatively bound and with identifiable harm while digital expression complicates the situation by making harm diffuse, accumulative, and algorithmically magnified. Whether traditional three-step or four-step structure of proportionality doctrine can incorporate the specificities of digital expression harm remains an open theoretical issue.

Thirdly, the paradox of post-authoritarian overcriminalization of expression in Indonesia – when democratization process led to an increase of criminal regulation of expression rather than its reduction calls for theoretical explanation. The possible explanations can be related to such mechanisms as institutional path dependency (colonial-era criminal law as the template for digital regulation), political interest convergence (gains from broad regulations for both democratic and authoritarian parties) and constitutional design (limitation clauses as the authorization for extensive regulation).

Finally, the theoretical comparison of institutional design of regulation of digital expression through criminal law, administrative regulations and private governance remains an open issue. The Indonesian example illustrates that criminal law is too blunt an instrument for regulation of digital expression harms, but alternative governance arrangements bring their own problems.

Fifthly, the changing nature of the intersection between artificial intelligence-generated expression and criminal liability for such expression raises new constitutional questions that the legal regimes of both Indonesia and The Gambia fail to answer.

VIII. Conclusion

This comparative constitutional analysis reveals that the constitutional problem created by the clash of freedom of expression and criminal law in the era of information technology is not only a question of policy but a genuine constitutional dilemma involving competing theories of democratic government, individual rights, community values, and state power. Constitutional dedication to free speech is inadequate to ensure that overcriminalization does not occur systematically in the absence of other institutional checks: legislative specificity, proportionality review, and structural protection from enforcement bias.

The analysis illustrates that the increasingly expansive nature of criminal law towards digital expression generates its own particular constitutional pathologies: rubber articles, chilling effect, selective enforcement, none of which can be addressed through the mechanisms of rights adjudication alone but need an integrated constitutional approach combining ex ante legislative restriction, intermediary judicial review, and continuing institutional oversight. What becomes clear from the comparative discussion is that even constitutional regimes that formally commit to the principle of expressive freedom generate different outcomes based on the differences in their constitutional ideology, history of institutions, judiciary’s attitude, and political culture.

What the theoretical contribution of the above analysis is that the dialectics of freedom and criminalization in the digital age cannot be properly analysed by either rights-focused constitutional theory (that does not account for the proper state interest in preventing real harm) or regulation-focused constitutional theory (that ignores the constitutional priority of democratic expression). Instead, the constitutional balance must be struck based on certain constitutional criteria of precision, necessity, proportionality, and democratic accountability, all of which the frameworks currently in place in both Indonesia and The Gambia fail to satisfy.

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[1] Ousu Mendy, ‘A Comparative Analysis of Constitutional Rights in the Gambia and Indonesia’ (2023) 4 Constitutionale 85 <https://jurnal.fh.unila.ac.id/index.php/constitutionale/article/view/2951>.

[2] Vidya Prahassacitta and Harkristuti Harkrisnowo, ‘Criminal Disinformation in Relation to the Freedom of Expression in Indonesia: A Critical Study’ (2021) 27 Comparative Law Review 135 <https://apcz.umk.pl/CLR/article/view/34538>.

[3] Simon Butt, ‘Indonesia’s New Criminal Code: Indigenising and Democratising Indonesian Criminal Law?’ (2023) 32 Griffith Law Review 190 <https://www.tandfonline.com/doi/full/10.1080/10383441.2023.2243772>.

[4] Michael Banzhaf, In Transition, vols 2019-Febru (2019).

[5] Primasari Primasari, ‘NEXUS CONSTITUTIONALISM The Constitutionalization of Water–Energy–Food Interdependence as a Theory of the State and a Legal Framework for Modern Constitutio’ (2026) <https://www.ssrn.com/abstract=6694718>.

[6] Susianto, Yusuf Eko Nahuddin and Riski Febria Nurita, ‘Freedom of Speech in the Context of Constitutional Law: Maintaining the Balance Between Freedom and Public Order’ (2025) 2 International Journal of Sustainable Law 7 <https://ejournal.cwcu.ac.id/index.php/IJSL/article/view/66>.

[7] ibid.

[8] Banzhaf (n 4).

[9] Berliant Pratiwi and Izzy Al Kautsar, ‘Kajian Konsep Modalities of Constraint Terhadap Pencegahan Konten Hate Speech Sebagai Cybercrime Di Indonesia’ (2022) 7 Jurnal Panorama Hukum 147 <https://ejournal.unikama.ac.id/index.php/jph/article/view/7635>.

[10] ibid.

[11] Vidya Prahassacitta and Harkristuti Harkrisnowo, ‘THE CRIMINALIZATION OF FAKE NEWS: CRITIQUE ON INDONESIA’S NEW PENAL CODE’ (2024) 35 Criminal Law Forum 83 <https://link.springer.com/10.1007/s10609-024-09478-y>.

[12] Prahassacitta and Harkrisnowo (n 2).

[13] Sri Herlina, ‘Criminal Defamation Through Social Media and Its Legal Implications in Indonesia’ (2025) 5 International Journal of Law, Environment, and Natural Resources 110 <https://injurlens.bdproject.co.id/index.php/injurlens/article/view/142>.

[14] ibid.

[15] Emmi Rahmiwita Nasution, ‘Legal Approaches to Combatting Information Warfare in the Age of Social Media and Misinformation in Indonesia’ (2025) 3 The Easta Journal Law and Human Rights 215 <https://esj.eastasouth-institute.com/index.php/eslhr/article/view/638>.

[16] Muhammad Alfian Rizki Ananda and Labib Muttaqin, ‘23 Years of Reformation, Freedom Is Still a Utopia’ (2022) 1 Interdisciplinary Social Studies 843 <https://iss.internationaljournallabs.com/index.php/iss/article/view/168>.

[17] Zariah Nur and Mahzaniar Mahzaniar, ‘IMPLEMENTATION OF THE ELECTRONIC TRANSACTION LAW (UU ITE) REVIEWED BASED ON THE BOOK OF CRIMINAL LAW (KUHP) ON FREEDOM OF COMMUNITY EXPRESSION IN SOCIAL MEDIA’ (2022) 13 Fox Justi : Jurnal Ilmu Hukum 57 <https://ejournal.seaninstitute.or.id/index.php/Justi/article/view/437>.

[18] Butt (n 3).

[19] ibid.

[20] ‘Article on Contempt of Court Process in the New Criminal Code: Between Respect and Concerns of Judges’ Unlimited Authority’ [2024] Pakistan Journal of Criminology 747 <https://www.pjcriminology.com/publications/article-on-contempt-of-court-process-in-the-new-criminal-code-between-respect-and-concerns-of-judges-unlimited-authority/>.

[21] Herlina (n 13).

[22] Banzhaf (n 4).

[23] Mendy (n 1).

[24] Kanchul Louis Mendy and Maskun, ‘Balancing State Security and Human Rights: A Comparative Study of Indonesia and The Gambia’ (2025) 7 Alauddin Law Development Journal 193 <https://journal.uin-alauddin.ac.id/index.php/aldev/article/view/61561>.

[25] Prahassacitta and Harkrisnowo (n 2).

[26] Prahassacitta and Harkrisnowo (n 11).

[27] Prahassacitta and Harkrisnowo (n 2).

[28] Prahassacitta and Harkrisnowo (n 11).

[29] Emaliawati Emaliawati, ‘Defamation in the Digital Age: An Analysis of the Application of Restorative Justice under Indonesian Criminal Law’ (2024) 2 Intellectual Law Review (ILRE) 32 <https://jurnal.ysci.or.id/ILRE/article/view/62>.

[30] Herlina (n 13).

[31] Tua Napitulu Warasman Marbun and Hartanto, ‘Criminal Responsibility of Criminal Acts of Hate Speech Through Social Media’ (2024) 5 JILPR Journal Indonesia Law and Policy Review 409 <https://ejournal.aissrd.org/index.php/jirpl/article/view/230>.

[32] Daimah, ‘The Cyber Footprint of Digital Activism: The Legal Boundary between Freedom of Expression and Hate Speech in Indonesia’ (2025) 2 Indonesian Cyber Law Review 32 <http://iclr.polteksci.ac.id/index.php/wp-admin/user/index.php/sci/article/view/13>.

[33] ‘Article on Contempt of Court Process in the New Criminal Code: Between Respect and Concerns of Judges’ Unlimited Authority’ (n 20).

[34] Aharon Barak, Proportionality (Cambridge University Press 2012) <https://www.cambridge.org/core/product/identifier/9781139035293/type/book>.

[35] Susianto, Nahuddin and Nurita (n 6).

[36] ‘University of The Gambia Law Review Volume 1 | Issue 1’ (2018) 1 1.

[37] Herlambang Perdana Wiratraman and Sébastien Lafrance, ‘Protecting Freedom of Expression in Multicultural Societies: Comparing Constitutionalism in Indonesia and Canada’ (2021) 36 Yuridika 75 <https://e-journal.unair.ac.id/YDK/article/view/24032>.

[38] Muhammad Roqib and others, ‘HAK ATAS KEBEBASAN BEREKSPRESI DAN BERPENDAPAT DI INDONESIA DENGAN DI AMERIKA SERIKAT’ (2020) 20 Perspektif Hukum 43 <http://perspektif-hukum.hangtuah.ac.id/index.php/perspektif/article/view/238>.

[39] Daimah (n 32).

[40] Herlina (n 13).

[41] ‘Article on Contempt of Court Process in the New Criminal Code: Between Respect and Concerns of Judges’ Unlimited Authority’ (n 20).

[42] Dave Advitama and others, ‘Criminal Law and Freedom of Opinion in the Era of Digital Democracy (Case Study in Indonesia)’ (2025) 5 Eduvest – Journal of Universal Studies 5108 <https://eduvest.greenvest.co.id/index.php/edv/article/view/51145>.

[43] Daimah (n 32).

[44] Peter Coe, ‘The Social Media Paradox: An Intersection with Freedom of Expression and the Criminal Law’ (2015) 24 Information & Communications Technology Law 16 <http://www.tandfonline.com/doi/full/10.1080/13600834.2015.1004242>.