Legal Regulation of Hate Speech Offences with a Restorative Justice Approach

DOI

10.2991/978-2-38476-180-7_98How to use a DOI?

Keywords

Legal Regulation; Hate Speech; Restorative Justice

Abstract

The primary objective of this study is to examine the legal framework governing hate speech, with particular emphasis on its conformity to the existing legal definition. Hate speech include verbal utterances, actions, written materials, or public displays that are considered impermissible due to their capacity to incite social disharmony, physical aggressiveness, and prejudiced convictions among both the individuals engaging in and being subjected to such behaviour. The implementation of hate speech legislation is inherently intertwined with both the legal framework and the prevailing legal norms within a given society. The primary aim of this study is to construct legislative frameworks pertaining to hate speech offences and delineate various law enforcement processes. The present study is categorised as qualitative normative research, more especially situated within the doctrinal framework. This study employs many methodological approaches, including conceptual analysis, historical investigation, legal examination, comparative analysis, and case study analysis. The results of the research show that Article 28 paragraph two states that “anyone who intentionally and without right incites, invites, or influences others to distribute and/or transmit information aimed at stirring up hatred or hostility towards individuals and/or certain groups based on ethnicity, religion, nationality, race, or gender through Electronic Information, Electronic Information, and/or Electronic Documents shall be punished.” Based on this formulation, the prohibited act differs from the essence of Article 28 paragraph two, where the prohibited act is actually “causing others to distribute and/or transmit information” as a consequential element (material offense). The expansion of the meaning of intergroup in the Constitutional Court Decision Number 76/PUU-XV/2017 concerning the substantive review of Article 28 paragraph two and Article 45 paragraph two is considered contradictory to the 1945 Constitution. The term intergroup not only includes ethnicity, religion, and race but also encompasses other entities not represented by ethnicity, religion, and race, which are then categorized as intergroups. Through systematic interpretation, the term “group” in Article 156 of the Criminal Code can be used to determine the criteria for the concept of “intergroup” in Article 28 paragraph two. However, the qualification of what entities fall into the category of groups or intergroups is not further explained. Based on this formulation, it can be said that this article covers acts outside the electronic realm since the prohibited act is “causing others to distribute and/or transmit information,” whereas it should be contextualized with the Information and Electronic Transactions Act (ITE) where the prohibited act should be “speech” or “proselytization” through electronic means. Furthermore, clarification is needed regarding “community groups,” where community groups refer to other inherent and unchangeable identities, not intended to insult individuals, legal entities, state institutions, public authorities, or positions.

Copyright

© 2023 The Author(s)

Open Access

Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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TY  - CONF
AU  - Kurniawan Kurniawan
AU  - Judhariksawan Judhariksawan
AU  - Slamet Sampurno
AU  - Maskun Maskun
PY  - 2023
DA  - 2023/12/31
TI  - Legal Regulation of Hate Speech Offences with a Restorative Justice Approach
BT  - Proceedings of the International Conference on “Changing of Law: Business Law, Local Wisdom and Tourism Industry” (ICCLB 2023)
PB  - Atlantis Press
SP  - 946
EP  - 969
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-180-7_98
DO  - 10.2991/978-2-38476-180-7_98
ID  - Kurniawan2023
ER  -