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wenty-three years ago, at the dawn of the internet, noted law professor Eugene Volokh wrote in Yale Law Journal, presciently predicting that with advanced technology, the transaction cost for voicing one’s opinion will become so low that everybody — ”rich and poor, popular and not, banal and avant-garde — will be able to make their work available to all”.

Reading Volokh’s exact words today is chilling, because the prophecy has become reality. A 2017 survey by the Indonesian Internet Service Providers Association (APJII) shows that 82 percent of Indonesian internet users are low to low-middle income earners, echoing Volokh’s point about highly affordable costs.

Everyone connected to the internet can send out practically anything, from commercials to vacation photos to inspiring quotes to puppy videos to ideological propaganda.

But as cyberbullying has claimed one too many suicide victims, with social networks becoming fertile soil for radical ideologies to flourish, and fake news used to manipulate elections, the old question returns: How free should free speech be?

Cases from countries with different indexes of freedom of speech could provide insight on the implementation and consequences of each instance.

In 2015, the Pew Research Center assessed perceptions on free speech in 38 nations. Unsurprisingly, the most tolerant country for free speech was the United States. The First Amendment even effectively protects speech that offends people based on race, gender, sexual orientation or other identities. This constitutional right is what allowed the neo-Nazi, hate-parading rally in Charlottesville in 2017.

Close to the global median index in the same survey is Germany, a country that witnessed firsthand how free speech was successfully used to propagate the systematic killing of millions of Jews, Gypsies and homosexuals.

The criminalization of hate speech is written into the German penal code, which essentially covers incitement of hatred against a group based on nationality, race, religion or other identity characteristics. Therefore, displaying the swastika and “Heil Hitler” salutes are banned.

Recently, Germany passed a hate speech law that requires social media companies to remove posts containing hate speech within 24 hours after being notified. However, this law seems to be working too well, because it also caused Twitter to censor the account of a German satirical magazine that poked fun at a far-right group leader.

As for Indonesia, the free expression index falls below the global median, indicating a concerning level of speech restrictions. Regulations of speech are found in the Criminal Code in the 2008 law on discrimination and the 2008 law on electronic information and transactions. Their enforcement has been hugely problematic.

A fresh example is the jailing of former Jakarta governor Basuki “Ahok” Tjahaja Purnama on the grounds of blasphemy against Islam.

Unfortunately, the government seems to be muffling its ears from the incitement of hatred towards non-Muslims proclaimed unapologetically loudly through horn speakers in mosques across the country. From the US, we learn that unregulated free speech can result in the proliferation of extreme ideologies.

Germany, which mainly relies on algorithms to decide what constitutes hate speech, taught us that censoring one speech also means censoring all other speech.

In Indonesia, hate speech is determined by people in government, but they don’t seem to be working well either, because what seems to be defined as hate speech seems limited to that which offends the dominant
culture.

Words indeed have the power to injure people, especially in an era where the cost of speech has become so low that it introduces a new sense of urgency in calling for some form of regulation.

But how do we enforce such regulations so that credible speech stays free and hate speech is punished?

Enacting a change in policy does not guarantee changes in practice and value. For the regulation of speech to be more helpful than harmful, some other critical grounds must be laid along with such regulation.

First, government accountability must be ensured to prevent power abuse. Civil society must step in as a watchdog, to keep the government in check to avoid the silencing of political opposition or constructive critical voices.

Second, the private sector’s algorithmic capacity should be employed and coupled with human supervision to prevent credible speech from being censored by an unmonitored algorithm.

Along with developing programs that can censor hate speech, dot-com companies like Google, Facebook, Twitter and many others should also create programs that can differentiate actual news from fake news, to inform users about the trustworthiness of information found on the internet.

Third, digital literacy must be incorporated in formal education to teach standards of acceptable practices while using the internet, to help users spot harmful content and protect their digital safety. It is time for our education to catch up on this long overdue update.

As a critical pillar in democracy, protecting the freedom of speech should always be a priority. However, in an era where broadcasting speech is close to free, it is important that we also know how to discern credible voices from malicious ones.

Being prudent about the consequences of each regulation is key to determining the limits of both speech and regulations of speech.
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