Page 1 of 16
Advances in Social Sciences Research Journal – Vol. 10, No. 6
Publication Date: June 25, 2023
DOI:10.14738/assrj.106.14859.
Susanti, D. I. (2023). Contextualizing Mill’s Idea on Freedom of Expression in The Indonesian Law on Prohibition of Hate Speech.
Advances in Social Sciences Research Journal, 10(6). 433-448.
Services for Science and Education – United Kingdom
Contextualizing Mill’s Idea on Freedom of Expression in The
Indonesian Law on Prohibition of Hate Speech
Diah Imaningrum Susanti
Law Department, Faculty of Law,
Universitas Katolik Widya Karya
ABSTRACT
This paper examines John Stuart Mill’s thoughts on freedom of expression as a part
of human rights, especially to the extent it is limited by the prohibition of hate
speech. Although this right is justified for philosophical, political, and individual
reasons, it will be contextualized from Indonesia’s regulations perspectives.
Tracing the background to the emergence of freedom of expression and the
emergence of hate speech from developed countries such as Europe and America,
the background for regulating hate speech is different from that of Indonesia,where
hate speech is still regulated and prohibited in various regulations and subject to
criminal sanctions. Freedom of expression initiated by John Stuart Mill is not
absolute freedom as opinions lose their immunity when the opinions expressed
become positive incentives for harmful actions.
Keywords: John Stuart Mill, Freedom of Expression, Hate Speech, Indonesian Law.
INTRODUCTION
Human life is inseparable from communication and it often expresses itself through language.
From this point of view, reason and expression are synonymous, for both are the products of
Greek thought that have coined the idea of "logos", a term meaning mind and language.
Language always presupposes something other than language, where language shows and
directs our attention.
1 Speaking, saying, or communicating is a human right. Through speech
and action, modern democracies embody all kinds of values, even values that may conflict. The
use of language, from this perspective, is not just a reflection of reality, but actively constructs
how people perceive and understand events, even causing the danger of violent escalation is
larger.2 So, delivering a speech, even though it contains hatred and intolerance, is considered
the exercise of freedom of speech or freedom of expression, which is a manifestation of human
rights3
1 Marcel Danesi, Messages, Signs, and Meanings; A Basic Textbook in Semiotics and Communication Theory, ed.
Marcel Danesi, 3rd ed. (Toronto: Canadian Scholars’ Press Inc, 2004),
https://doi.org/10.1017/CBO9781107415324.004.
2 Antoine Buyse, “Words of Violence : ‘ Fear Speech ,’ or How Violent Conflict Escalation Relates to the Freedom of
Expression,” Human Rights Quarterly 36, no. 4 (2018): 779–97.
3 C Edwin Baker, “Hate Speech,” in The Content and Context of Hate Speech: Rethinking Regulation and Responses, ed.
Michael Herz and Peter Molner (Columbia: Cambridge University Press, 2017), 57–80.
Page 2 of 16
434
Advances in Social Sciences Research Journal (ASSRJ) Vol. 10, Issue 6, June-2023
Services for Science and Education – United Kingdom
Dealing with the freedom of speech in online media, the presence of online media inevitably
accelerates the spread of fake news/hoaxes 4 and hate speech. Hate speech is a nickname for
utterances aimed at insulting and stigmatizing other people based on race, gender, sexual
orientation, or other forms of any group membership. In online media, haters can communicate
and publish illegal content anonymously or pseudonymously, and this allows the wide
dissemination of illegal hate speech. 5 In Indonesia, hate speech seems to symbolize the
evolution of freedom of expression considering that so many hate speeches are carried out
openly.
6
The thought on freedom of speech is a highly contestable area. Although many explanations of
the underlying virtues have been proposed, the main justifications are those that focus on
individual autonomy, political participation, the validation of different ways of life, and the free
competition of ideas. 7 The prohibition of hate speech has been criticized by jurists and
practitioners for stifling freedom of speech, undermining individual autonomy, paralyzing the
path to finding truth and knowledge, limiting self-fulfillment, being antithetical to free
participation in openly forming opinions, threatening state legitimacy, and being ineffective,
and is a difficult law with no legal certainty.8 However, its proponents argue that hate speech
laws can, among other things, help to prevent harm to people's health (psychological and
physical), guarantee autonomy, reduce discomfort, equalize people, bulwark against
oppression, strengthen human dignity, protect and provide public guarantees of public dignity,
ensuring the recognition of cultural identity, facilitating intercultural dialogue, and providing
real access to take a part in public opinion of a democratic society.
The various harms and dangers can be caused by hate speech to the speech target. History has
taught us lessons about how hate speech needs to be seriously considered, especially hate
speech stemming from prejudice against certain groups or races. 9 That’s why the rules
regarding hate speech have become the object of study from various perspectives and debates.
The problem is, to what extent the existence of hate speech can be allowed without interference
based on freedom of expression? Or to what extent is freedom of expression limited by a legal
prohibition on hate speech?
4Cindy Bella Devina et al., “Hukum Kriminalisasi Penyebaran Berita Hoax Atas Covid 19 Dan Penolakan Omnibus Law
[The Law of Criminalizing the Spread of Hoax News on Covid 19 and the Rejection of the Omnibus Law],” Jurnal Surya
Kencana Satu: Dinamika Masalah Hukum Dan Keadilan 12, no. 1 (2021): 31–46.
5
Ioannis Iglezakis, “The Legal Regulation of Hate Speech on the Internet and Its Conflict with Freedom of Expression,”
no. 2008 (2013): 233–39.
6
Ferry Irawan Febriansyah and Halda Septiana Purwinarto, “Pertanggungjawaban Pidana Bagi Pelaku Ujaran
Kebencian Di Media Sosial [Criminal Liability for Hate Speech Perpetrators on Social Media] ,” Jurnal Penelitian Hukum
De Jure 20, no. 2 (2020): 177, https://doi.org/10.30641/dejure.2020.v20.177-188.
7Philippe Yves Kuhn, “Reforming the Approach to Racial and Religious Hate Speech Under Article 10 of the European
Convention on Human Rights,” Human Rights Law Review 19, no. February (2019): 119–47,
https://doi.org/10.1093/hrlr/ngz001.
8 Harry Melkonian, Freedom of Speech and Society: A Social Approach to Freedom of Expression (New York: Cambria
Press, 2012).
9 Richard Moon, “When Religious Groups Are the Target of Hate Speech: Islamophobia and the Muslim Tide,” in
Putting Faith in Hate: When Religion Is the Source or Target of Hate Speech (New York: Cambridge University Press,
2018), 61–89.
Page 3 of 16
435
Susanti, D. I. (2023). Contextualizing Mill’s Idea on Freedom of Expression in The Indonesian Law on Prohibition of Hate Speech. Advances in Social
Sciences Research Journal, 10(6). 433-448.
URL: http://dx.doi.org/10.14738/assrj.106.14859
From the background that has been described, this article will discuss the problem with
perspective that originates from Mill’s idea, to what extent the existence of hate speech can be
allowed without interference based on freedom of expression? Or to what extent is freedom of
expression limited by a legal prohibition on hate speech?
RESEARCH METHOD
The material object of this study is the prohibition of hate speech concerning
to freedom of expression. The formal object of study is the philosophical ideas from a thinking
pioneer on freedom of expression as a human right, John Stuart Mill.
10 While the research
method used content analysis, a research tool used to determine meaning given by qualitative
data (text, descriptive text and prescriptive texts).
ANALYSIS AND DISCUSSIONS
Why is freedom of expression a form of human right? John Stuart Mill put forward several
reasons, namely those that are philosophical, political, and individual.
11
Freedom of Expression as Human Rights Manifestation
As a form of human rights, freedom of expression should be understood as a "right". It was
Hohfeld, the philosopher who first created a framework for the concept of rights, namely rights
as opposed to claims rights, privileges, immunity, and power. Hohfeld's concept emphasizes
that rights are not only interpreted as the opposite of obligations – which requires the state as
a party that has obligations – but must be interpreted as privileges, powers, and immunities
possessed by the holders of rights.
12 As the holder of the right to freedom of expression, an
individual naturally has privileges, powers, and immunity to freedom of expression. This has
implications for the enactment of the basic principle of the state's obligation to protect the right
to freedom of expression, by preventing, protecting, punishing, and compensating for such
violations through effective policies, legislation, regulations, and court decisions.
13
However, what kind of freedom of expression is appropriate in the context of Indonesia's legal
state, and what series of activities will be protected by this human right? Following Hohfeld's
framework above, as a moral right, "right" in the sense of "against obligation contains
obligations from other parties, namely obligations that are negative or positive. Negative in
nature means the obligation to prevent actions that hinder the protection of that moral right.
This obligation essentially implies that the government does not punish the exercise of freedom
of expression. Positive in nature means obligations that require people to perform or provide
goods or services for the implementation of these moral rights.
10 George Bromwich, David and Kateb, ed., On Liberty John Stuart Mill, Rethinking the Western Tradition (New Haven
and London: Yale University Press, 2003), https://doi.org/10.12987/9780300210699-024.
11John Stuart Mill, On Liberty (New Zealand: Floating Press, 1909). See also: Harry Melkonian, Freedom of Speech and
Society: A Social Approach to Freedom of Expression (Cambria Press, New York, 2012), p. 101.
12Raymond Wacks, Philosophy of Law, A Very Short Introduction (Oxford: Oxfrod University Press, 2006), p. 53-55.
13United Nations Human Rights, Office of Hight Commissioner, Guiding Principles on Business and Human Rights,
Implementing the United Nations, Protect, Respect, and Remedy” Framework, (United Nations 2011).