Analysis of the Form of Loss (Damnum Incertum) in the Legal Provisions of Information and Electronic Transactions

Abstract

Purpose: This study examines the legal structure of damnum incertum (uncertain losses) in Article 27A of the Electronic Information and Transaction Law (Law No. 1 of 2024), focusing on its implications for legal certainty and digital freedom of expression. It also explores how ambiguity around the harm element fosters interpretive uncertainty and raises concerns over potential constitutional rights violations.

Theoretical Framework: This research is based on the doctrine of legal certainty and the principle of proportionality in the restriction of human rights.

Method: This research uses a normative legal method with statute and conceptual approaches, drawing on legislation, government documents, and scholarly sources. The abstract shows coherence, depth, and originality.

Results and Discussion: The findings show that the terms “accusing something” and “loss” in Article 27A of the ITE Law lack clear definitions, enabling broad law enforcement discretion and chilling digital expression. This vagueness undermines legal certainty and proportionality, as sanctions are imposed without objective standards of harm, making the restriction on expression disproportionate and potentially harmful to public discourse.

Research Implications: The study’s findings carry significant implications for legal frameworks and policymaking in digital communication. Revising Article 27A. either by clarifying its normative language or redrafting it substantively. is essential to align the provision with the rule of law, particularly in ensuring legal certainty and safeguarding human rights.

Originality: This research contributes to legal scholarship by introducing the issue of damnum incertum within the context of Indonesian digital law an area previously underexplored. It also offers a conceptual framework for evaluating the legitimacy and feasibility of restrictions on freedom of expression in the digital era.