Legal Text and Enforcement Gap: Defamation and Hate Speech in Indonesia's Digital Law

Abstract

The Indonesian ITE Law has faced widespread criticism for threatening freedom of expression, yet the core problem may reside less in its norms than in enforcement practices. This study addresses the gap between formal legal provisions and actual enforcement of defamation (Article 27A) and hate speech (Article 28, paragraph 2). Employing a socio-legal approach with a multiple-case study design, this research analyses Saiful Mahdi and Wahyu Dwi Nugroho through legal interpretation and enforcement analyses. Cross-case comparison reveals two key patterns of interpretive deviation. First, officials apply provisions arbitrarily by substituting objective legal elements, identifiable individual victim or identity-based incitement, with subjective equivalents, including institutional reputation or complainant's perceived offence. Second, a persistent gap between legislative intent and enforcement practices engenders legal uncertainty. Drawing on Derrida's deconstruction and Barthes' "Death of the Author," the study demonstrates that interpretive flexibility, while preventing legal vacuums, can also enable subjective interpretations that diverge from legislative intent. This research contributes to socio-legal literature by providing documentary evidence of how legal meaning is constructed through institutional interpretation and enforcement discretion in Indonesian cyber law. For policymakers, findings underscore the need for standardised interpretive guidelines and procedural safeguards, such as Anti-SLAPP protections. The analysis is limited to court decisions and excludes fieldwork; future research should examine enforcement perspectives through interviews.