PROCEEDING

INTERNATIONAL CONFERENCE

International Conference on Electronic-

Commerce Law
“E-Commerce Law in Asia: Opportunities
and Challenges”

Jointly organized by the Faculty of Law Brawijaya

University Indonesia, School of Law University of
Newcastle Australia, and Faculty of Law University
Kebangsaan Malaysia
Malang, 18th – 19th November 2014

Speakers:
Prof. Sandeep Gopalan
Assoc. Professor Nazura Abdul Manap, PhD
Dr. Patricia Audrey
Dr. Sukarmi
Dr. Edmon Makarim
PROCEEDING, International Conference on-Electronic-Commerce Law
“E-Commerce Law in Asia Opportunities and Challenges”
Penyunting: Milda Istiqomah

ISBN:978-602-3090-76-1

Penerbit:
CV. Indo Legal Service
Jl. Simpang Piranha Atas Nomor 71, Malang

Hak cipta dilindungi Undang-Undang

 TABLE OF CONTENT

ALIGNMENT OF MALAYSIA AND ASEAN AGREEMENTS ON ICT LAWS: A

REVIEW
Nazura Abdul Manap, Ph.D. Faculty of Law, the National University of Malaysia, 1-8

ONLINE DISPUTE RESOLUTION: A NEW VISTA BETWEEN HOPE AND

CHALLENGES IN INDONESIA I.T LAW ENFORCEMENT
Dr. Patricia Audrey R, Faculty of Law, Brawijaya University, 9-16

E-COMMERCE IN INDONESIA: OPPORTUNITIES AND CHALLENGES

Dr. Sukarmi SH.MHum, Vice Chairman of Commission for the Supervision of
Business Competition, 17-22

DETERMINING THE LAW APPLICABLE TO THE DISPUTE RESOLUTION OF

THE INTERNATIONAL E-COMMERCE
Dr. Taufiqurrahman, S.H., M.Hum, University of Wijaya Putra, 24-42

TECHNOLOGICAL PROTECTION MEASURES (TPM) AS A PROTECTION OF

COPYRIGHTED WORKS IN E-COMMERCE TRANSACTION: RECENT
LEGAL DEVELOPMENTS IN INDONESIA
M. Zairul Alam, SH, MH, Faculty of Law, Brawijaya University, 43-49

DEFAMATION PERSON THROUGH VIRTUAL WORLD, AFTER THE

CONSTITUTIONAL COURT DECISION IN TEST CASE Number 13-022 /
PUU - IV / 2006
Dr. Sanidjar Pebrihariati R, S.H., M.H, Bung Hatta University, 50-61

NATIONAL AND INTERNATIONAL LAW ENFORCEMENT AGAINST MONEY

LAUNDERING IN CYBERSPACE
Jeanne Darc Noviayanti Manik, Faculty of Law, Brawijaya University, 63-69

PORNOGRAPHY AND REGULATION MODEL: INDONESIA, MALAYSIA AND

CANADA PERSPECTIVE
Faizin Sulistio, Faculty of Law, Brawijaya University, 70-79

THE LEGAL LITERACY ON THE PREVENTION OF CYBER ATTACKS IN

INTERDISCIPLINARY APPROACH
Emmilia Rusdiana, University State of Surabaya, 80-87

EVIDENCE OF CRIMINAL FRAUD OVER THE INTERNET

Henny Saida Flora, SH. M.Hum.,M.Kn, Law Faculty, University Of Katholic Santo
Thomas, 89-99

POLICY AS A NON PENAL CYBER CRIME PREVENTION

Anastasia Reni Widyastuti, Faculty of Law, University Catolic of Santo Thomas
North Sumatera, 100-112
ONLINE SEX TRAFFICKING OF WOMEN AND CHILDREN IN INDONESIA:
LEGAL PERSPECTIVES AND CHALLENGES
Milda Istiqomah and Kristiyanto, Faculty of Law, Brawijaya University, 113-121

CONSUMER PROTECTION LAWS IN E-COMMERCE TRANSACTION TO FACE

2015 ASEAN ECONOMIC COMMUNITY
Hudriyah Mundzir and Sri Hudiarini, State Polytechnics of Malang, 123-130

LEGAL PROTECTION OF REGISTERED TRADEMARKS OWNER AS INTERNET

DOMAIN NAMES ON E-COMMERCE IN INDONESIA
Yuliati., SH.LL.M, Faculty of Law, Brawijaya University, 131-139

E-COMMERCE IN FIQH MUAMALAH PERSPECTIVE

Nur Chanifah,S.Pd.I, M.Pd.I and In’amul Wafi, Faculty of Law, Brawijaya
University, 141-147

CORPORATE CRIMINAL RESPONSIBILITY IN INDOENSIAN ACT NO.11 YEAR

2008: FORMULATION ISSUE
Alfons Zakaria, Faculty of Law, Brawijaya University, 148-167

LIABILITY OF DATA BREACH PERPETRATOR IN INDONESIA

Rosalinda Elsina Latumahina S.H, M.Kn, Faculty of Law, Universitas Pelita Harapan
Surabaya, 168-182

JURISDICTION AND APPLICABLE LAW FOR INTERNATIONAL ELECTRONIC

COMMERCE
Djumikasih, Faculty of Law, Brawijaya University, 184-188

INDONESIAN LAW ON CONSUMER PROTECTION IN E-COMMERCE

Ikaningtyas, SH.LLM, Faculty of Law, Brawijaya University, 189-204

THE REGULATION ON CYBER STALKING BASED ON ACT NUMBER 11 OF

2008
Irfan Maulana Muharikin, Sherly Nanda Ade Yoan Sagita, Fachrun Nurrisya A,
Faculty of Law, Brawijaya University, 206-210
 1

ALIGNMENT OF MALAYSIA AND ASEAN AGREEMENTS ON ICT LAWS:

A REVIEW

Nazura Abdul Manap, Ph.D.1

ABSTRACT
The mega Multimedia Super Corridor (MSC) project launched in 1996 is a strong
endorsement of the Malaysian government‟s commitment towards developing the ICT
industry in Malaysia. To attract world-class technology companies and prepare the local ICT
industry, the government has offered MSC Malaysia Status to companies developing or using
multimedia technologies in producing and enhancing their products and services and
locating in any of the 26 Cybercities and Cyber centres in Malaysia. MSC status confers
incentives, rights and privileges under the MSC Malaysia Bill of Guarantees. This ICT
initiative also underlies Malaysia‟s commitment to lead the region in protecting intellectual
property and adherence to cyber laws. As a member of E-ASEAN this assurance aligns with
the e-ASEAN initiative “…to adopt electronic commerce regulatory and legislative
frameworks that create trust and confidence for consumers and facilitate the transformation
of businesses towards the development of e-ASEAN”. This paper identifies and analyses the
extent of the Malaysian government‟s compliance with e-ASEAN principles particularly in
the legal and regulatory aspects.

PREAMBLE
The information communication revolution has had a significant impact on the world
today. Computers and the Internet have become powerful tools permeating almost every area
of modern living including making decisions on our behalf. The tremendous spread of these
facilities has influenced not only social well being but has major ramifications on the overall
development of nations. As in other countries, the use of ICT in Malaysia has contributed
much to its development. However, like any other technology the many positive aspects of
ICT also have their attendant downside risks. While acknowledging the strategic importance
of ICT as a driver to support and contribute directly to the growth of the Malaysian economy,
the government is aware that appropriate legal mechanisms are needed to monitor and
manage this technology. Thus, the Malaysian Multimedia Super Corridor project not only
provides incentives for ICT development but also includes in its framework the necessary
legislative and enforcement provisions.

DEVELOPMENT OF ICT IN MALAYSIA

Background
In the early years following independence in 1957, Malaysia focused its efforts on
strengthening its agriculture-based economy through the development of its basic
infrastructure particularly in rural areas. After the riots of 1969, the New Economy Policy
was formulated with its twin-pronged objective of eradicating poverty and restructuring
Malaysia society to eliminate the identification of race with economic functions (Kuppusamy,
2007). During the 1980s, basic ICT infrastructure was developed in the form of basic
telephony services to rural and urban area with the aim of increasing access to mobile and
fixed-line services (Kuppusamy, Raman, & Lee, 2009).

1
Associate Professor Faculty of Law The National University of Malaysia (UKM). E-mail:
nazura@ukm.edu.my
 2

In 1991, Vision 2020 was formulated aimed at bringing Malaysia at par with
developed countries by the year 2020. This Vision was a turning point to transform Malaysia
into a knowledge driven society in which ICT is to play a major role.
The 8th Malaysia Plan (2001-2005) includes the introduction of a K-Economy and the
potential growth of digital infrastructure. The succeeding 9th Malaysia Plan (2006-2010)
incorporated the enhancement of ICT as one of its agenda involving the building of vital ICT
infrastructures in the public and private domains. The increased use of ICT infrastructure led
to the need for national information security initiatives as reflected in the establishment of an
emergency response centre to oversee the regulatory, technical, and security aspects of the
internet (Jehangir, 2011). With this framework in place, Malaysia is well-prepared to
introduce ICT into its everyday life through initiatives such as E Commerce, E Education,
and E Health or Telemedicine.
These strategic plans have produced increasing accessibility to the Internet and its
related services including wired and wireless technologies for enhancing broadband services
throughout the country. Competition in the telecommunication services is encouraged by
allowing the entry of new players resulting in the proliferation of various products and
services in the market and in more-affordable Internet services. ICT connectivity was
enhanced in 2000 when 33 pilot community-based Internet Centres were established
nationwide of which 12 were in rural areas. This was followed by an additional 31
Internet/Information Centres developed throughout the country between 2001-2003 and 13
national pilot projects of the NITC Strategic Task Force conducted through a Public-Private
Partnership model (Kuppusamy, Raman, & Lee, 2009).
ICT development in the country was boosted with the implementation of the US$20
billion mega Multimedia Super Corridor project in Malaysia.

Multimedia Super Corridor Malaysia

On 12 February 1996, the Multimedia Super Corridor was launched with the aim of
accelerating the objectives of Vision 2020. This MSC Malaysia project is an important
program aimed at achieving the creation of knowledge based society. Amongst the initiatives
of this program is the formation of the MSC flagship which serves as a hub for players and
users in the multimedia industry.
This mega project is fully supported by the Malaysian government and is a gateway to
the ICT industry in Malaysia with the objective of attracting world class technology
companies while preparing the local industry for the ICT age. The companies that develop or
use multimedia technologies to produce and enhance their products and services may be
granted MSC Malaysia status and be located in any of the 26 Cybercities and Cybercentres in
Malaysia. MSC status comes with incentives, rights and privileges accorded under the MSC
Malaysia Bill of Guarantees and underscores the assurance by Malaysia to be a regional
leader in promoting intellectual property protection and adherence to cyber laws.
MSC Malaysia operates within an area of approximately 15 km (9.3 mi) by 50 km (31
mi) or about 750 km2 (290 sq miles) beginning from the Petronas Twin Towers in the city of
Kuala Lumpur to the Kuala Lumpur International Airport in Sepang and includes the towns
of Putrajaya and Cyberjaya. The town of Port Klang was added to MSC Malaysia on 7
December 2006.
To oversee the coordinated and managed development of MSC Malaysia, the
Multimedia Development Corporation (MDeC, formerly MDC) was established (Kuppusamy,
Raman, & Lee, 2009).
 3

ASEAN ICT INITIATIVE: e-ASEAN

ASEAN was created in 1967 to promote regional cooperation among its member
countries with the objective of (a) accelerating economic growth, social progress and cultural
development, and (b) promoting regional peace and stability in the region. It currently has 10
member countries, namely Brunei Darussalam, Cambodia, Indonesia, the Lao People‘s
Democratic Republic, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Viet
Nam. Recognizing the potential of ICTs, ASEAN member countries endorsed the e-ASEAN
initiative in 1999 based on the ASEAN Vision 2020 defined two years earlier. Amongst
others the Vision seeks to create a stable, prosperous and highly competitive ASEAN
economic region that facilitates the free flow of goods, services, investments and capital, as
well as the promotion of equitable economic development and reducing poverty and
socioeconomic disparities by the year 2020.

The Elements of e-ASEAN

ASEAN views ICT as one of the key economic factors having a significant impact on
enhancing competitiveness in other industry sectors. Accordingly, e-ASEAN was established
in the Annual Summit Meeting of ASEAN leaders in Manila on 28 November 1999 and
signed during the ASEAN Informal Summit in Singapore in November 2000 (Anil, 2001).
The primary objective of e-ASEAN is to develop a ―broad-based and comprehensive
action plan, including physical, legal, logistical, social and economic infrastructure needed to
promote an ‗ASEAN e-space‘ as part of an ASEAN positioning and branding strategy‖
(Quimbo, 2012).

e-ASEAN Legal Framework

The ASEAN Information Infrastructure (AII) under the aegis of the e-ASEAN
Framework Agreement of November 2000 focuses on the hardware and software systems
needed to access, process, and share information and promote the growth of electronic
commerce in the region. Towards this end, ASEAN countries are required to adopt electronic
commerce regulatory and legislative frameworks that will promote trust and confidence for
technology users. Under the Agreement, member states are required to:
a. Expeditiously put in place national laws and policies relating to electronic commerce
transactions based on international norms;
b. Facilitate the establishment of mutual recognition of digital signature frameworks;
c. Facilitate secure regional electronic transactions, payments and settlements, through
mechanisms such as electronic payment gateways;
d. Adopt measures to protect intellectual property rights arising from e-commerce. Member
states should consider adoption of the World Intellectual Property Organization (WIPO)
treaties, namely: ―WIPO Copyright Treaty 1996‖ and ―WIPO Performances and
Phonograms Treaty 1996‖;
e. Take measures to promote personal data protection and consumer privacy; and
f. Encourage the use of alternative dispute resolution (ADR) mechanisms for online
transactions.
The implementation of the e-ASEAN Framework Agreement is to be achieved via a
series of measures outlined in the Roadmap for Integration of the e-ASEAN Sector (the e-
ASEAN Roadmap). The two key targets in the Roadmap are:
1. Measure 78: Enact domestic legislation to provide legal recognition of electronic
transactions (i.e., cyberlaws) based on common reference frameworks.
2. Review of e-commerce legislation harmonization in ASEAN resulting in 8 out of 10
countries having e-commerce legislation by the end of the project in 2009.
 4

However, at the end of the project, Cambodia and the Lao People‘s Democratic Republic had
still not passed electronic transaction legislation.

THE MALAYSIAN PERSPECTIVE

Law and Regulatory Framework
Laws relating to ICT have been in place in Malaysia even prior to the formulation of
the e-ASEAN initiative. The launching of MSC Malaysia in 1996 saw the introduction of
four cyber laws namely the Computer Crime Act 1997, the Digital Signature Act 1997, the
Telemedicine Act 1997, and the Copyright Act 1987 (Amendment Act in 1997).
The purpose of these Acts is to foster the development of ICT systems and to address issues
of threats and abuses arising from their employment. ICT related laws were strengthened with
the inclusion of four other legislations namely the Communication and Multimedia Act 1998,
the Electronic Commerce Act 2006, the Electronic Government Activities Act 2007, and the
recent Personal Data Protection Act 2010.
Along with specific legislation for ICT-related issues, existing laws can also be used
provided that the matters involved fall within the legal elements provided in the traditional
statutes. For example the application of the Computer Crimes Act 1997 and the Electronic
Commerce Act 2006 are supported by the respective parent Penal Code and the Contract Act
1950.

Conformity of e-ASEAN Obligation by Malaysian Legal Framework: An Analysis

The rapid developments in ICT have posed huge challenges to legislators in
instituting effective legal mechanisms aimed at protecting users of the technology. Despite
that the Malaysian government has been proactive in ensuring that the necessary legislations
are in place for that purpose. It can be said that with its wide range of cyber laws, Malaysia as
a member state of ASEAN, and in particular a signatory of e-ASEAN, has fulfilled the
obligations required under the e-ASEAN Framework Agreement.
ICT opens up new and sophisticated opportunities for criminal acts and the potential
to commit conventional crimes in non-traditional ways, cyber crime being the foremost and
most obvious among them. The enactment of the CCA 1997 is seen as a means to combat
such cyber crimes where any unauthorised access/modification to any programme or data in a
computer is deemed an offence subject to penalties.
The anonymity provided by cyber space makes it necessary for additional and more
robust security protections to be put in place. In line with this, the Digital Signature Act 1997
was enacted to provide the security and confidence that would encourage the public to
perform electronic transactions domestically and internationally. Under the Act, the digital
signature provides a verification system to authenticate the identity of the author and verify
the transmitted message.
Being one of the seven flagships in the MSC Malaysia, telemedicine or tele-health
activities require attention to ensure proper protection. For this purpose, the Telemedicine Act
1997 was enacted to provide the regulatory framework governing the practice of telemedicine
and to recognise the use of multimedia in the medical field.
The digital element of ICT allows easy unauthorised copying and pasting primarily on
the internet. The Copyright Act 1987 was amended in 1996 and 1997 to address this issue by
extending copyright protection to internet transactions. The amendments took into account
developments in information technology particularly those related to copyrights covered by
the World Intellectual Property Ownership (WIPO) Copyright Treaty 1996. The scope of
copyright protection has been broadened to include the provision of exclusive rights of
control to authors. New copyright infringements and offences have been identified and
regulated under this Act (Nazura et al, 2013).
 5

The convergence of the three major technologies of telecommunications,

broadcasting, and information resulted in the enactment of the Communication and
Multimedia Act 1998. This act covers communications over the electronic media and does
not affect the application of existing laws on national security, illegal content, defamation and
copyright. It regulates various activities covering network facilities and service providers,
application service providers, and content application services providers. This act empowers
the minister to grant licences for particular types of activities deemed fit and the flexibility to
address the changing requirements as the industry evolves.
The easy access to Internet services in Malaysia has encouraged the extensive use of
electronic commerce transactions by both large companies and small scale enterprises. Legal
disputes arising out of such contractual transactions may be handled through the Electronic
Commerce Act 2006 for resolution. This act provides for legal recognition of electronic
messages in commercial transactions, the use of the electronic messages to fulfil legal
requirements and to enable facilitate commercial transactions through the use of electronic
means, and other related matters.
Electronic communication within the public sector as well as between the government
and citizens requires a comprehensive legal framework to ensure efficient and secure
electronic government services. For this purpose the Electronic Government Activities Act
(EGAA) 2007 which came into effect on 1 January 2008 can be applied to agencies handling
electronic dealings. It does not grant any additional legal rights or change any substantive
laws.
The above account demonstrates that Malaysia has met the provisions agreed upon in
the e-ASEAN Agreement. However, such legislation, no matter how comprehensive, requires
appropriate and serious commitment in their implementation especially with regard to
enforcement.

PROTECTING ELECTRONIC COMMERCE ACTIVITIES IN MALAYSIA

Based on a combination of the Electronic Commerce Act 2006 and the Electronic
Government Activities Act 2007, Malaysia has introduced a raft of comprehensive e-
commerce laws. With the enactment of the Personal Data Protection Act in 2010, Malaysia
also became the first ASEAN member country to pass privacy legislation. In addition, the
government believes that updating of some provisions of its e-commerce legislation may be
necessary owing to the constantly evolving technological changes and the emergence of
social networking and mobile applications.
Malaysia had a very high number of mobile subscriptions at 127 per 100 inhabitants in 2011
and is also equipped with a moderate level of fixed broadband connectivity. Overall Internet
use in Malaysia stood at 61 per cent of the population in 2011, one of the highest in the
region.

Electronic Transactions Laws

The Electronic Commerce Act 2006 and the Electronic Government Activities Act
2007 are the key regulations governing e-commerce in the private and public sectors
respectively. The former closely mirrors the precepts of the United Nations Electronic
Communications Convention.
Malaysia also has the Digital Signature Act 1997 specifically enacted for legislation for that
purpose and its legal framework was subsequently strengthened to encourage future use via
amendments in 2001. In addition, the Electronic Commerce Act 2006 contains broad
technology-neutral provisions on electronic signatures.
 6

Consumer Protection
The Consumer Protection Act 1999 is a general piece of consumer legislation in
Malaysia that protects consumers against a range of unfair practices and enforces minimum
product standards. Amendments were introduced in 2007 and 2010 to widen its scope to
cover electronic commerce transactions, and to introduce, among others, a new provision on
general safety requirement for services and to provide protection to consumers from unfair
terms in a standard form contract respectively.
Malaysia also introduced the Consumer Protection (Electronic Trade Transactions)
Regulations 2012, enforced in 2013. These Regulations impose certain obligations on online
traders and online marketplace operators and seek to promote consumer confidence in
shopping and trading as a means to further spur the growth of e-commerce in the country.
There are also some limited consumer provisions incorporated in part 8 of the
Communications and Multimedia Act 1998 which deal with the relationship between
consumers and licensees and applies regardless of whether the transaction is electronic or not.
Subsection 188(1) requires all licensed service providers to deal reasonably with consumers
and adequately address consumer complaints. Part 8 of the act also includes a voluntary
consumer protection code covering the provision of information to consumers and the
handling of personal information and complaints.

Privacy and Data Protection

The Personal Data Protection Act 2010 governs the private sector and does not include
government agencies. It closely mirrors the principles in the European Union directive
although some variations appear to adopt parts of the APEC Privacy Framework. However,
the Act does not contain any European Union style registration requirements.
To facilitate the implementation of Malaysia‘s Personal Data Protection Act which
came into force on 1 January 2013, the Personal Data Protection Department was established.

Online Content Regulation

The Communications and Multimedia Act 1998 established the Malaysian
Communications and Multimedia Commission (MCMC) which is empowered to regulate
ICT industries. Broad authority has been provided by the act to the commission to regulate
online speech in which ―no content applications service provider, or other person using a
content applications service, shall provide content which is indecent, obscene, false,
menacing, or offensive in character with intent to annoy, abuse, threaten or harass any
person‖. Publishers of media content who violate this provision are subject to criminal
penalties.
The act also included the establishment of the Communications and Multimedia
Content Forum of Malaysia which formulates and implements the Content Code which is a
set of voluntary guidelines for content providers on the handling of content considered
offensive or indecent.
In general, the Malaysian government has pledged not to censor the Internet and there
are no indications of technological filtering of the medium in the country. However, existing
government controls over the traditional media sometimes extend into the Internet resulting
in self-censorship and the occasional investigation of bloggers and online commentators.

Cybercrime and Cyber security

Various sections of the Computer Crimes Act 1997 prohibit the following categories
of activities related to unauthorized entry into computer systems:
Section 3: acts committed with intent to secure unauthorized access to programs or
data stored in any computer;
 7

1. Section 4: acts committed with intent to secure unauthorized access to programs or

data stored in any computer to commit an offence involving fraud or dishonesty;

Section 5: acts committed with the knowledge that they will cause unauthorized
modification of the contents of any computer;
2. Section 6: wrongful communication of any password, code or means of access to a
computer to any person not authorized to receive the same.

These provisions are more related to computer crimes than cybercrimes. However, the
provisions as found in e-commerce laws and copyright laws and updated and amended in
2012 complement Malaysia‘s cybercrime legislation and make them more aligned with
international standards.

Online Dispute Resolution and Domain-name Regulation

Three sections have been incorporated into Malaysia‘s Communication and
Multimedia Act 1998 to address issues related the regulation of domain names.
Section 179 specifies that the MCMC is responsible for the planning, control and
administration of electronic addresses or domain names while Section 180 empowers the
MCMC with developing a numbering and electronic addressing plan that includes the
formulation of rules for assigning and transferring such addresses.
The functions contained in sections 179–181 appear to be delegated to MYNIC, the
registrar of Malaysia‘s country code top-level domain (ccTLD). In addition to being the
registrar, MYNIC is the registry and administrator of the .my domain.

CONCLUSION
The ASEAN initiative to apply uniform standards for ICT implementation throughout
ASEAN region is a useful endeavour as it will provide member countries the opportunity to
benefit from the current ICT regime without neglecting the need to regulate the use of
technologies. Although some countries such as Malaysia have adopted relevant laws to
ensure the secure and effective use of ICT, the effectiveness of enforcement will remain an
issue to be overcome with no or limited cooperation from member states. In a borderless
electronic world, ASEAN member states cannot confine themselves within the region; thus it
is important to seek outside assistance and learn lessons from both within and outside the
region.
*** Thank you to Haliza A.Shukor my Ph.D student for assisting me in coming up with this writing.

REFERENCES

Nazura Abdul Manap Et al, ―The Influence Of E-Asean In The Development Of Ict Law In
Malaysia‖, Internal Journal of Soft Computing, 8(5), 377-380, 2013.
Samtani Anil, ‗Electronic Commerce in Asia: The Legal, Regulatory and Policy Issues‘, Int J
Law Info Tech (2001) 9 (2): 93.
Rodolfo Noel S. Quimbo ,‗The E-ASEAN legal framework and its Challenges‘, Harmonized
development of legal and regulatory systems for e-commerce in Asia and the
Pacific:Current challenges and capacity-building needs. p.81-83.
Mudiarasan Kuppusamy, Murali Raman, Geoffrey Lee, Whose ICT Investment Matters To
Economic Growth: Private Or Public? The Malaysian Perspective, EJISDC (2009) 37,
7, 1-19, p.5.
 8

Mudiarasan Kuppusamy and Bala Shanmugam, Information Communication Technology and

Economic Growth in Malaysia, Review of Islamic Economics, Vol 11, No. 2. 2007,
p.89-90.
Muhammad Jehangir, P.D.D Dominic, Naseebullah, Alamgir Khan, Towards Digital
Economy: The Development of ICT and E-Commerce in Malaysia, Modern Applied
Science Vol. 5, No. 2; April 2011, p.171 . www.ccsenet.org/mas
Review of e-commerce legislation harmonization in ASEAN, United Nations Conference on
Trade and Development (UNCTAD), 2013.
 9

ONLINE DISPUTE RESOLUTION: A NEW VISTA BETWEEN HOPE AND

CHALLENGES IN INDONESIA I.T LAW ENFORCEMENT

Dr. Patricia Audrey R1

ABSTRACT
The existence of globalization has bring vast development in the face of many aspect
in people life, as it happen in the practice of trade within the development of information
technology has introduce the coming of electronic commerce. The practicality that electronic
commerce offers to human being, yet in many cases it also bring such an issue of practice
related with the electronic commerce dispute settlement. Indonesia has showed its effort with
the establishment of Law 30/1999 on Arbitration and Alternative Dispute Resolution and Law
11/2008 on Information and Electronic Transaction, yet ironically these regulations has not
show an effective way in its way to solve electronic commerce dispute. The lack of dispute
resolution that offer also show incoherence with the distinct nature of electronic commerce
itself, that required practical, yet accurate practice in solving legal problem that may face by
trade parties;
Therefore, this paper attempt to analyze (1) the nature of article 18 law number 11 of
2008 on Information and Electronic Transaction related to its functionality with ODR
practice;(2) the existence of online dispute settlement and its prospect in Indonesia‟s legal
system.
Result of this paper show that the existence of article 18 law 11/2008 on information
and electronic transaction has made its effort in regulates dispute settlement methods in
electronic commerce, through choice of law option, use of conventional alternative dispute
resolution and principle of international private law. Yet this choice has not fulfilled the
essential meaning of legal protection and legal certainty as aims to reach in the practice of
electronic commerce. This paper also analyzes the presence of online dispute resolution as a
development of alternative dispute resolution that divides into online negotiation, online
mediation and online arbitration. As online dispute resolution offer new vista in the
development of Indonesia alternative dispute settlement, the way Indonesia attempt to
collaborate the practice of this online dispute resolution by applying cooperation between
good legal sector consist of good legal regulation, well society and social control and
adequate security system to enhance online dispute resolution practice and fulfill legal
certainty toward parties.

1. Introduction
The existence of globalization has bring vast development in the face of many aspect
in people life, as it happen in the practice of trade within the development of information
technology has introduce the coming of electronic commerce. 2.
Influence of society demand and fast paced development, has not make electronic
commerce a newbie, to serve buyer and seller in goods and services transaction dealing one
to another. By the conduct of electronic commerce, it serves buyer with space for a various
selection of available products in any as quality and quantity, he/she desired. Yet for seller,
the assistance of electronic commerce will be a meaningful action in gather customer comes

1
Faculty of Law University of Brawijaya Malang, Jawa Timur Indonesia, Email:
g25audrey@gmail.com
2
Tom Allen & Robin Widdison. “Can Computer Make a Contract ?”. 1996. Harvard Journal of Law
& Technology Winter., hlm. 1
 10

from around the world and offer various products, without any limitation of state border area
(borderless trade)3.
Naturally, the practice of electronic commerce is just the same with the conventional
trade apart from the use interconnected network/internet services as the main service to
operates the process. Agreement between party and necessity to fulfill one‘s obligation to
another is needed and vice versa. Yet, it possible to happen when sometimes a breach of
contract happen between parties and lead to the happening of dispute4.
Yet, electronic commerce assistance in provide new way of business practicality still
face its problem dealing with dispute settlement method, since the natural practice of
electronic commerce in borderless area in conduct business, make it has difficulty dealing
with validity of dispute settlement award since its place conduct happens in cyberspace area.
Therefore, the conduct of electronic commerce dispute settlement has two main points that
are: to settle dispute between parties and to build parties confidence to interact in electronic
contract issue.5.
Dealing with this issue, international law established regulations in regulate the
practice and role of dispute settlement body, especially those who take part in the form of
alternative dispute resolution as an option for dispute settlement legal enforcement, apart
from the practice of litigation body like court that blamed in provide lack of efficiency of cost
and practicality of time, as alternative dispute settlement has provide. Regulations that has
provided are 1958 Convention on the Recognition and Enforcement of Foreign Arbitral
Awards or New York Convention, UNCITRAL Model Law on International Commercial
Arbitration 1985 that has been amended in 2006 to provide recognition upon electronic data
transaction upon the use of international commercial arbitration6.
Indonesia as a part of international society member, not also missed its role to
participate in efforts to regulate the practice of electronic commerce dispute settlement, since
the development of technology also removes barrier to the practice of trade itself. In
regulating alternative dispute settlement, Law number 30 year 1999 on Arbitration and
Alternative Dispute Resolution have been established to regulates the standard to conduct
dispute settlement between parties. Follow in 2008, Law number 11 year 2008 on
Information and Electronic Transaction established to regulates and removes barrier in
conduct electronic contract, yet with its all part of role including provide option method for
parties to settle dispute between them7.
Ironically, latest happening in Indonesia related with electronic commerce dispute has
not show great effort from the regulation above to settle the dispute successfully, since many
legal practice happen in Indonesia related with electronic commerce dispute only settle with
the conventional criminal law yet supported with the lack of function in Indonesia‘s present
alternative dispute resolution regulation.
This paper attempt to analyze (analyze (1) the nature of article 18 law number 11 of
2008 on Information and Electronic Transaction related to its functionality with ODR
practice;(2) the existence of online dispute settlement and its prospect in Indonesia‘s legal
system.

3
E. Gultom. 2002. Konsumen dalam Transaksi Perdagangan melalui Transaksi E-Commerce, dalam
M.K. Kantaatmaja, Cyberlaw: Suatu Pengantar. ELIPS. Bandung. hlm 54
4
Iman Sjahputra.2010. Perlindungan Konsumen dalam Transaksi Elektronik. Alumni. Bandung. hlm
93
5
E Katsh ‗Online dispute resolution: some implications for the emergence of law in cyberspace‘, Lex
Electronica Vol 10, No 3, 2006, available at http://www.lexelectronica.org/ articles/ v10-3/katsh.htm
6
Abdul Halim Barkatarullah. 2010. Sengketa Transaksi E-Commerce Internasional. Nusa Media.
Bandung. hlm 28
7
Frans Hendra Winata, 2011, Hukum Penyelesaian Sengketa Arbitrase Nasional Indonesia &
Internasional, Sinar Grafika, Jakarta, hlm 45
 11

2. Results and Discussion

2.1. Legal Protection and its Application on Article 18 Law Number 11 Year 2008 on
Information and Electronic Transaction
The existence of globalization and its development has bring such a vast development
in many aspect in human life, yet it also transform the nature of human to communicate one
to another in conduct trade, as it is assisted information technology in trade known as
electronic commerce. Indonesia as a part of international society also realize to take part in
supporting national sustainable development by providing sufficient support of infrastructure,
yet in this research through the existence to regulates the practice of electronic commerce as a
part of electronic transaction8. The existence of electronic commerce has known as a new
type of legal action, as such it convert the practice of face to face trading to faceless trading,
yet this time of legal action still requires legal consequence, so that it will fulfill balance of
rights and obligations toward parties and legal certainty to conduct such action9.
The existence of free consent principle has been regard as one of the essential
principle for the validity formation for contract, yet in the stipulation of this principle has
been regard as basic rights of every party for the fulfillment of its right follow by the conduct
of their obligation toward other10. Along with free consent principle, in analyzing the practice
of legal certainty, we cannot apart from the essential value of rights that has regard as a part
of human rights itself in line with freedom of humanity that has accepted and appreciate as a
social value needed in endows humanity reality 11 . In analyzing the guarantee of rights
fulfillment in the context of dispute resolution in electronic commerce practice, it is no far
from the essential meaning in rights of freedom as a part of basic rights in human rights.
Law has its role in regulates and guarantee legal protection along with state role as an
institution that has full authority in execute legal protection for everyone especially in its
territorial. In the context in this research, the role of national legislation and government
active effort become the essential value to guarantee the consistence of legal protection in
conduct electronic commerce12.
The background in the establishment of Law number 11 year 2008 in Information and
Electronic Transaction aims to facilitate information technology facility in its own
responsible action, without set aside national unity principle and fulfill legal certainty and
well society order 13 . The existence of Law number 11 year 2008 in Information and
Electronic Transaction aims to provide comprehensive use of legal regulation that regulates
electronic information, electronic document, digital signature, electronic certificate, privacy,
dispute settlement 14 . Regulation of dispute settlement that become the main point in this
research has been consider as an important issue, since it may possible that dispute may
happen in the process of electronic commerce take place. Dispute settlement has been

8
Bambang Sutiyoso, 2006, Penyelesaian Sengketa Bisnis, Citra Media, Yogyakarta
9
Ricardo Simanjuntak. Asas-Asas Utama Hukum Transaksi dalam Transaksi Dagang Internasional:
Sebuah Tinjauan Hukum. Jurnal Hukum Bisnis, Agustus 2009
10
I Gede Arya B. Wiranata, Hak Asasi (Anak) Dalam Realitas Qua Vadis ?, dalam Muladi (Editor),
Hak Asasi Manusia – Hakekat, Konsep dan Implikasinya dalam Perspektif Hukum dan Masyarakat, (Bandung:
Refika Aditama, 2007), hlm. 227 – 228.
11
Suhardi dalam Mukthie Fadjar, Tipe Negara Hukum, (Malang: Bayumedia Publishing, 2005), hlm.
44.
12
Risalah Rapat Panitia Khusus DPR RI dalam tahun sidang 2006-2007 dalam rapat kerja dengan
Menkominfo dan Menteri Hukum dan HAM pada tanggal 17 Mei 2006, sebagaimana dikemukakan oleh
Menteri Komunikasi dan Informatika
13
Risalah Rapat Panitia Khusus DPR RI dalam tahun sidang 2006-2007 dalam rapat kerja dengan
Menkominfo pada tanggal 30 November 2006, sebagaimana dikemukakan oleh Cyprianus Aoer
14
Risalah Rapat Panitia Khusus DPR RI dalam tahun sidang 2006-2007 dalam rapat kerja dengan
Menkominfo dan Menteri Hukum dan HAM pada tanggal 17 Mei 2006, sebagaimana dikemukakan oleh
Menteri Komunikasi dan Informatika
 12

consider as government responsibility, as a part of state responsibility to provide legal

protection and justice fulfillment toward parties in electronic commerce practice. The
fulfillment of state responsibility endows in legal regulation established by government, as a
part of legal rights provides by law specifically to legal subject, therefore its regulation must
clearly expressed in law15. What has become Law number 11 year 2008 in Information and
Electronic Transaction effort is fulfill justice as a part of modern humanity demand. Legal
thinking that explain about the correlation between law and justice value express in John
Rawl opinion, in well society order that has essential role in fulfilling justice society. Equality
and balance between constitution and law been cosider as the basis of individual rights and
obligation in social interaction.
Justice value that has develop by John Rawl is well known as justice as fairness that
demand on the procedure that able to well guarantee a distribution. Justice as fairness also
means a vice versa benefit, meaning that what become benefit to one party should not bring
loss to another16. In its comprehensive understanding, John Rawls see justice principle as a
cooperative guidelines as a result from consensus comes from equal and rational party 17 .
What become the aims of justice in the context of electronic commerce dispute settlement,
regard justice not just facilitate by legal regulation, yet the nature of parties in electronic
commerce has its own essential role, therefore a comutative justice has an coordinative
between parties in the meaning of harmony and equality.
Law number 11 year 2008 on Information and Electronic Transaction established to
regulates and removes barrier in conduct electronic contract, yet with its all part of role
including provide option method for parties to settle dispute between them. What Law
number 11 year 2008 on Information and Electronic Transaction regulates, aims to provide
legal protection to the practice of electronic commerce and guarantee legal certainty to the
related parties. The method of dispute settlement provides in article 18 as mentioned:
(1) electronic transaction that are stated in electronic contracts shall bind the parties
(2) parties shall have the power to choose applicable law to the entered electronic
transaction
(3) If parties do not make choice of law in international electronic transaction, applicable
law shall be under the principles of private international law
(4) Parties shall have power to determine court‟s forum, arbitration or any other
alternative dispute resolution that has jurisdiction over the related dispute
(5) if parties do not make choice of forum as intended by section (4), the jurisdiction of the
court, arbitration or other alternative dispute resolution institution with jurisdiction to
handle disputes, that may arise from such transaction shall be determined under the
principles of the private international law

Based on above article, Law number 11 year 2008 on information and electronic
transaction mentioned there are three option that may consider to settle electronic contract
dispute that are : choice of law, use of current alternative dispute resolution, and use of
international private law principle. Yet, the option to choose this three option as methods to
consider to settle electronic contract dispute, cannot separate from the essential meaning of
legal protection and legal certainty, since the practice of these three option must be able to
fulfill the requirements to settle electronic contract dispute.
15
I Gede Arya B. Wiranata, dalam dalam Muladi (Editor), Op.cit., hlm. 229.
16
John Rawls, The Theory of Justice, (Cambridge, Massachusetts: Havard University Press, 1971),
hlm. 89.
17
Endang Prasetyawati, Endang Prasetyawati, 2010, Konstruksi Hukum Pembiayaan Konsumen Yang
Berkeadilan, Ringkasan Disertasi, Program Doktor Ilmu Hukum Pascasarjana Universitas Brawijaya.hlm. 88.
 13

Fulfillment of legal protection that aims to legal certainty in its practice cannot
separated from moral‘s role, since it also underline good faith principle and pacta sunt
servanda principle in commonly contract law system.18
What means by fulfillment of legal protection in this research is the application that
offered by law to dispute settlement, and how all the methods offer makes possible apply
sufficient legal protection and legal certainty for all related parties. Sufficient practice of legal
protection shall provide both preventive protection and represive protection. Preventive
protection apply, in the application of legal regulation related with electronic commerce
dispute settlement. Represive protection apply, in the application of sufficient dispute
settlement method to provide practical electronic contract dispute settlement19.
Three methods offer in article 18 Law number 11 year 2008, that are choice of law,
use of conventional alternative dispute settlement and use of international private law
principle, related with the existence and its effort to fulfill legal certainty can describe as
following explanation.
The use of choice of law in a contract to provide parties to choose their own law
applies among them to govern the essential law applies on the contract. Choice of law has
been consider determining appliance law and eliminates uncertainty for the sources of law in
the contract20. However, in the event of electronic commerce transaction, the choice of law
option is not a best choice to apply, since the nature of electronic commerce transaction make
it impossible for choice of law option, especially for business to customer transaction. The
existence of standard contract in many forms, that customer must fill and leave no spaces to
deal with term and condition before purchase goods and services. Yet, type of term and
agreement in electronic commerce contract, such as click wrap agreement, shrink wrap
agreement and browse wrap agreement makes it own barrier to provide freedom of contract
principle among parties and leave the traces of ―take it or leave‖ the agreement, without
giving any chance for choice of law option take place to settle dispute among parties21.
The use of conventional dispute resolution such as negotiation, mediation and
arbitration are possible to use in dispute settlement. Though in its practice, nature of
electronic commerce will bring some barriers especially related with jurisdiction issue and
validity of electronic data recognition.
The use of international private law principle is also such an issue to consider, since
the doctrine in proper law of contract is used. The doctrine in proper law of contract consider
as applicable law to govern matters arising from contract. In the event of conventional private
law matters22, the appliance use of common proper law of doctrine may be used, such as (1)
lex loci solutionis principle that explain a place where contract conduct its result is the valid
place to regard as its forum; (2) Lex loci contractus principle that explain where contract
made its first encounter agreement, is the valid place to regard as its forum23.
Based on above statement, it is show that three option as offer in article 18 Law
number 11 year 2008 on information and electronic transaction has not bring their coherrence
in settle electronic commerce dispute, therefore a model of electronic commerce dispute

18
Satjipto Rahardjo, Membedah Hukum Progresif, Kompas Media Nusantara, Maret, 2007, hlm 228
19
Philipus M. Hadjon, Perlindungan Hukum bagi Rakyat Indonesia, Bina Ilmu, (Surabaya: Bina Ilmu,
1987), hlm. 2
20
D.L.Perrot. International Sales Agreement dalam Julian DM Lew and Clive Stanbrook(eds.)
international trade: law and practice, Bath: Euromoney Publ. 1983. hlm 10
21
Moch. Basarah. 2010. Prosedur Alternatif Penyelesaian Sengketa- Arbitrase Tradisional dan Modern
(Online). Genta Publishing. Bandung
22
Chesire, G.C, North, P.M. Fawcett, J.J., Private International Law, 13 th Ed. Hlm 533
23
Bayu Seto Hardjowahono, 2006, Dasar Dasar Hukum Perdata Internasional Buku kesatu, Citra
Aditya Bakti, Bandung, hlm 285
 14

settlement is needed, which is online dispute resolution to assist electronic commerce dispute
settlement and help to provide legal certainty towards contract parties.

2.2. Online Dispute Resolution and Its Role in Indonesia’s Dispute Settlement
Development
Online dispute resolution (ODR) is a branch of dispute resolution which uses
technology to facilitate the resolution of disputes between parties. Online dispute resolution
has essential role in support the development of electronic commerce, yet guarantee its legal
certainty toward parties. In its practice, online dispute resolution offer communication and
time efficiency demand by parties, with its flexibility and assistency facility offer by online
dispute resolution24.
It primarily involves negotiation, mediation or arbitration, or a combination of all
25
three . These type of methods aims to bridging confidence toward parties in communicate
and settle dispute that may happen one to another. In this respect it is often seen as being the
online equivalent of alternative dispute resolution (ADR). However, Online dispute
resolution in its form can classify into two types, that are (1)negotiation, divide into two type
that are automated negotiation, where negotiation process designed to determine economic
settlements for claims in which liability is not challenged. This type of automated negotiation
divide into double blind bidding, for single monetary issues between two parties and visual
blind bidding, for negotations with any number of parties and issues. Second type of
negotiation is assisted negotiation, that has a similar role as the mediator in a mediation. The
role of the technology may provide a certain process and/or to provide the parties with
specific (evaluative) advice26; (2) arbitration, is a type of dispute settlement where a neutral
third party (arbitrator) delivers a decision which is final, and binding on both parties. In an
arbitration procedure parties usually can choose the arbitrator and the basis on which the
arbitrator makes the decision, and once the procedure is initiated parties cannot abandon it27.
The practice of above online dispute resolution may bring a new vistas for Indonesia‘s
alternative dispute resolution development. Balance of social aspect, legal aspect and
technology aspect consider to be essential factors in the practice of online dispute resolution
in Indonesia. Social aspect related with the practice of online dispute resolution endows the
awareness of parties in conduct electronic transaction, yet it also relates with the value of
trust and transparency that must obtain by parties. Legal aspect may consider to be the more
essential aspect in successing the practice of online dispute resolution, as it may face the
scarcity of unclear regulation related with the practice of online dispute resolution. Good
organization of legal aparature and build sufficient regulation dealing with the practice of
electronic commerce will enhance the vast growth of methods dealing with dispute
settlement. Since Law number 30 year 1999 on alternative dispute resolution and arbitration
has been main regulation in Indonesia‘s dispute settlement system, the practice of online
dispute resolution will bring promising development in Indonesia‘s dispute settlement
system, yet related with its validity it did not violate Indonesia‘s dispute resolution legal
system. As it is support with UNCITRAL statement, regulates that data information though it
has its form in data message did not mean that it lack of its legal validity. In further research,
the use of extensive interpretation as one of judge rechtvinding, article 1320 Burgerlijk

24
Goodman, Joseph W. 2003. The Pros and Cons of Online Dispute Resolution: An Assessment of
Cyber Mediation Websites. Duke Law & Technology Rev 0004
25
UNCTAD, (2003), E-Commerce and Development Report 2003, p.177
26
Consumer International, (2000), Disputes in Cyberspace: Online Dispute Resolution for Consumers
in Cross-Border Disputes - An International Survey
27
Gabrielle Kaufmann-Kohler dan Thomas Schultz, 2004. Online Dispute Resolution: Challenges for
Contemporary Justice. The Nederlands: Kluwer Law International.hlm 775-776
 15

Wetboek that regulates on contract validity28 did not restrict the type of electronic document
in agreement, includes also extensive meaning of data and information, related with the
practice of alternative dispute resolution and arbitration make it a sensible sense for online
dispute resolution to take part in developing and supporting Indonesia‘s dispute settlement
development. The importance of legal aspect enforcement cannot apart from compensation
mechanism, where the role of compensation mechanism is a complement in enhance the work
of legal aparature and build legal regulation, as this compensation mechanism need to support
by the work of Committee of Consumer Dispute Settlement along with the existence of
security standard through trustmark procedure in electronic commerce transaction. The work
of Indonesia Committee of Consumer Dispute Settlement can reach its optimal work within
the support of regional organization such as ASEAN with the foundation of The ASEAN
Coordinating Committee on Consumer Protection (ACCCP), The Southeast Asian Consumer
Protection Agencies Network (SEA-CPAN) dan The Southeast Asian Consumer Council
(SEA-CC). The work of Committee of Consumer Dispute Settlement, as it is regulates in
article 19 Law number 8 year 1999 on Consumer Protection may include the control and
regulation upon worker liability related to damage and consumer loss related to the practice
of trade 29 . In further action, existence of supportive instrument such as security
standardization of electronic commerce practice. As this type of method use by Republic of
Singapore with the work of Case Trust as authorized agent to issue trust mark, to provide
legal protection toward electronic commerce consumer and as a mediator in a electronic
commerce dispute30.
In CaseTrust certification, compliance Internet Code of Practice compliance used as
the underlying judgment granting certification to businesses, with a high payoff of consumer
confidence. Certification filing process is conduct by collecting supporting documents and
payment of administrative expenses, including the completeness of the organizational
structure and business activities of the applicant, and resulted in the four groups of applicants
certified in four types which include: browsing, purchasing, sales and security. With the
compliance standards specified, seller has the capacity as trusted retailer31, within this trusted
status in the practice of electronic commerce transaction, it aims to fulfill policy formation
both in the nature of legal and institutional arrangements to introduce how the transaction
security certification.
The appliance of technology aspect shall complete the practice of social aspect and
legal aspect in conduct online dispute resolution, through the use of Hyper Text Transfer
Protocal and Secure Socket Layer as website security and apply encription system by the role
of digital signature. Hyper Text Transfer Protocol and Secure Socket Layer may use with
digital signature through the encryption system and combination of public key hold by client
and server and private key exclusively use by client. Yet the existence of digital signature in
Indonesia legal system already has its recognition as a valid evidence as it is regulate in
article 11 Law number 11 year 2008 on Information and Electronic Transaction.
The collaboration between social aspect, legal aspect and technology aspect means as
the prospect of success enhancement of online dispute resolution practice in Indonesia, as a
part of alternative dispute resolution method development. The practice of new method of
alternative dispute resolution, open new vistas in social and legal development in Indonesia

28
Article 1320 Burgerlijk Wetboek on the validity of contract describes 4 requirements to fulfill for a
contract to be bound, that are : consent between parties, parties in conformity with legal requirement, causa halal
and do not violate good order in society
29
Bc ketentuan Pasal 19 Undang Undang Nomor 8 Tahun 1999 tentang Perlindungan Konsumen
30
Iman Sjahputra. 2010. Perlindungan konsumen dalam transaksi elektronik. Alumni. Bandung.
Hlm 220-221
31
Assafa Endeshaw, op cit, hlm 287-288
 16

hopes to bring promising future in the practice of electronic commerce and its dispute
settlement may provide legal protection and enhance parties confidence in conduct electronic
commerce transaction.

3. Concluding Remark
Online dispute resolution as its form as new type of alternative dispute resolution has
offer promising future in resolve electronic commerce transaction dispute. Indonesia has
show its effort by it regulation in article 18 law number 11 year 2008 on Information and
Electronic Transaction by providing three optional methods through parties choice of law,
choice of forum and the appliance of international private law principle. Yet these three
optional methods has not been regard to provide sufficient legal protection toward parties,
therefore the existence of online dispute resolution as a new way is needed. An equal
combination between legal shelter in good legal regulation established by government,
society understanding in practicing electronic commerce transaction and information
technology role to provide good security system are needed in enhance online dispute
resolution that bring justice and legal certainty toward parties.
In further action, the existence of independent association to provide and bridging
electronic commerce issue is needed, where the independent association has its role to
provide trust mark to protect both parties in conduct electronic commerce transaction, and has
it role to become a center for electronic commerce dispute settlement. A modification toward
Law number 11 year 2008 on Information and Electronic Commerce also needed to regulates
about the extensive meaning of alternative dispute settlement methods and regulates the
existence of online dispute resolution in the current law that applies.
 17

E-COMMERCE IN INDONESIA: OPPORTUNITIES AND CHALLENGES

Dr. Sukarmi SH.MHum1

Background
Currently, a very swift change in the development of digital media, in this regard,
international network or commonly called internet is taking place. Such development will not
only influence the fundamental principles in the field of communication but also affect the
new digital economy, such as activity flow in money market and trade, emergence of forms
of new business and new methods of doing business, as well as creation of new opportunities
for consumers to obtain goods or services in a quicker and easier manner through electronic
commerce (e-commerce). This is quoting the Chairperson of Intel, Andy Groove, as saying:
‖In the next 5 years, there will be no internet company, all companies will be on the
internet‖.2
Advanced technology and information is important driving factors for business
transactions. John Nielson, one of the leaders in Microsoft, said that in 30 years period, 30%
of sale transactions to consumers will be done by e-commerce.
The term e-commerce is an important term in the development of global information
technology culture. E-commerce has been known and spread worldwide by influentially
bringing about changes at the end of the 20th century. In general, e-commerce means online
trade activity/transaction through electronic communication mechanism or digital media or
trade through the internet network/virtual enterprises in the field of information technology or
in Indonesia is more popularly known as telematics (telecommunications, media, and
information).
Some parties are of the view that e-commerce is believed to be capable of improving
public welfare since it can be used by medium- and small-scale enterprises in developing
business, creating job opportunities and new businesses. The creation of cooperation among
large-scale entrepreneurs, medium-scale entrepreneurs and small-scale entrepreneurs so as to
establish a network based on the combination of competence, trust, sharing knowledge, and
common purpose in addition to cost cutting down can be conducted in e-commerce.
It is predicted that the development of e-commerce in Indonesia, e-commerce
transaction itself will continually improve. It is estimated that the value of transactions in
Indonesia reached US$100 million in 2000 and it increased from that amount to US$200
million in 2001 and keeps increasing to date. This reality poses challenges for the law in
dealing with such development. The following statement made by Karim Benyekhlef is very
interesting: 3
―… Yet, one cannot claim to fully comprehend and understand this phenomenon if
one reduces it to only its technical component. Obviously, the latter might seem much
more spectacular than its legal counterpart. However regardless of how impressive
electronic highways may become, it remains undeniable that their integration and
acceptance in the social and economic fabric will be dependent notably on the legal
guarantees they can provide. In other words, the consumer will only be inclined to use
these new services if they can offer a degree of legal security comparable to that
provided in the framework of traditional operation…‖.

1
Vice Chairman of Commission for the Supervision of Business Competition (KPPU). E-mail:
sukarmi08@yahoo.com
2
Kompas Cyber Media (KCM), e-commerce Secured Online Payment, Pelebur Keraguan Konsumen
(Consumer Doubt Smelter), May 24, 2000.
3
Karim Benyekhlef in Sutan Remy Sjahdeini, E-Commerce Tinjauan dari Perspektif Huku (E-
Commerce Viewed from Legal Perspective)‖,Jurnal Hukum Bisnis (Business Law Journal), Volume 12, 2001.
 18

Basically, someone cannot be said to have fully understood phenomena about

cyberspace if their understanding is only limited to technical elements alone of the virtual
world, but not yet realized the legal issues of the virtual world.
Julian Ding defined E-Commerce as follows:4
―Electronic Commerce, or E-Commerce as it is also known, is a commercial
transaction between a vendor and purchaser or parties in similar contractual
relationships for the supply of goods, services or the acquisitions of ―right‖. This
commercial transaction is executed or entered into in an electronic medium (or digital
medium) where the physical presence of the parties is not required, and the medium
exist in a public network or system must be considered an open system (e.g. the
internet or the World Wide Web). The transactions are concluded regardless of
national boundaries or local requirements‖.
In the meantime Kamlesh K. Bajaj & Debjani Nag said that: 5
―E-Commerce refers to the paperless exchange of business information using
Electronic Data Interchange, electronic mail, Electronic bulletin boards, Electronic
Funds Transfers and other network-based technologies. It not only automates
processes and paper transactions, but also helps organizations move to a fully
electronic environments and change the way they operate‖.
Meanwhile Sutan Remi Sjahdeini defined E-commerce as activities relating to
consumers, manufacture, service provider, and middleman by using computer networks,
namely the internet. 6
So, based on the aforementioned definitions, there are at least 6 (six) components in e-
commerce, namely:
1. There is a trade contract;
2. Contract is executed by electronic (digital) media;
3. Physical presence of the parties is not needed;
4. Contract takes place in public network;
5. The system is open, namely through the internet or www,
6. Contract is borderless, goes beyond national jurisdiction.7
Based on the matters mentioned above, we may know that:
1. E-commerce actually has a legal basis of ordinary trade (conventional trade or
ordinary buy and sell or civil buy and sell).
2. E-commerce constitutes a conventional trade that is special in nature because the
role of the media and electronic devices is very dominant.
The description of e-commerce trend, as mentioned by Ravi Kalakota and Marica
Robinson explained in the following table:
Major Trend Driving e-Bussiness
Trend Category Trend
customer 1. Faster services
2. Self servive
3. More product choices
4. Integrated solutions
e-service 5. Integrated sales and service
6. Seamless support

4
Julian Din, E-Commerce: Law &Practice, Malaysia :Sweet & Maxwell, Asia, 1999, page 25.
5
Kamlesh K. Bajaj & Debjani Nag, E-Commerce; Cutting Edge of Business, McGraw-Hill,
International Edition, New Delhi, 2001, page 12.
6
Sutan Remi Sjahdeini,ibid..
7
Mariam Darus Badrulzaman, Kontrak Dagang Elektronik Tinjauan Dari Aspek Hukum Perdata,
dalam Kompilasi Hukum Perikatan (Electronic Commerce Contract Viewed from Civil Law Aspect, in
Compilation of Contract Law), page 286.
 19

7. Flexible fulfillment and convenient

service delivery
8. Increased process visibility
Organizational 9. Outsourcing
10. Contract manufacturing
11. Virtual distribution

Employee 12. Hiring the best and brightest

13. Keeping talented employees
Enterprise technology 14. Integrated enterprise applications
15. Multichannel integration
16. middleware
General technology 17. wireless web applications
18. handhled computing and information
appliances
19. infrastructure convergence
20. application service providers

Recently, there have been a lot of commercial websites and various portals emerging
in the internet in Indonesia that offer various goods and services to the public or consumers.
Indonesia with a population of more than 200 million has become a very interesting market
for producers to offer their goods and/or services. The legal umbrella existing in Indonesia
providing for electronic transaction (e-commerce) is regulated in Law No. 11 Year 2008
regarding Electronic Information and Transactions (EIT/ITE).
In the current information and digital era, only nations and states that control
information may win competition that continually develops and increasingly become tighter.
Therefore, it is true if people say that ―information is power‖. Whoever controls it will have
the opportunity to control the world. On the other hand, states and nations that do not control
it will depend on other nations and states.

Legal Challenges and Opportunities of E-Commerce for Indonesia

As touched on above that shopping through the Internet is very different from
shopping or doing transaction in the tangible world. It will bring about implication in the
form of legal issue. Some people are of the opinion that since the transaction takes place in
the virtual world, consequently, the law that applies in the tangible world shall not be
applicable. This opinion becomes strong because in fact there is no a single owner of the
Internet. In line with what has been expressed above, there has been some confusion about
whether the civil law and the criminal law that apply in the tangible world also apply in the
virtual world. Many internet users that are of the opinion that the Internet world does not
have law, consequently, the Government should not interfere with and go into the internet
world.
Such a condition on the one hand has a benefit for consumers since the needs of
consumers for goods and/or services desired can be fulfilled and freedom to choose various
types and qualities of goods and/or services pursuant to the desire and capability of
consumers has increasingly become more open widely. On the other hand, the condition and
phenomena above may result in unbalanced position between business actors and consumers
and consumers are in a weak position. Consumers become the object of business activities so
as to earn the most maximum profits by business actors by way of promotional tips, selling
methods, as well as the application of standard agreement that harms consumers.
In order to avoid and anticipate the above-mentioned matter, the role of the
government as a regulator is badly needed. Indonesia since 2008 has had Law No. 11 Year
 20

2008 regarding Electronic Information and Transactions as touched on above that can be used
as an umbrella in e-commerce business activities. The regulating of this Electronic
Information and Transactions Law refers to several international instruments, such as
UNCITRAL model Law on E-Commerce and UNCITRAL Model Law on e-signature. The
purpose of this part is to accommodate the needs of business actors in the Internet and the
public in general so as to obtain legal certainty in conducting electronic transactions.
Some specifically provided for materials that are concerned with e-commerce are
among other things:
1. Recognition of electronic information or documents as valid instrument of evidence
of law (Articles 5 and 6 of the Electronic Information and Transactions Law)
2. Electronic signature (articles 11 and 12 of the Electronic Information and
Transactions Law)
3. Administration of electronic certificate (certification authority) (articles 13 and 14 of
the Electronic Information and Transactions Law)
4. Administration of electronic system (articles 15 and 16 of the Electronic Information
and Transactions Law).
Seeing the reality, we honestly must admit that law cannot counterbalance the swift
development of technology and information. This has resulted in legal vacuum and will
furthermore give rise to the absence of legal certainty in some legal issues, whereas actually
the issue of legal certainty becomes very important for it will affect investment activities or
foreign investor investments to Indonesia.
The development of e-commerce is affected by several components, namely
infrastructure, web-server, security, e-store or virtual mall, shopping cart, payment gateway,
acquiring bank, delivery and settlement. The component of payment gateway, for example,
must fulfill equipments: simple, speed, cheap, stable and secure. Delivery also gives
equipment on time, secure and possible to be detected. Based on the data above, the issue of
security becomes basic need in e-commerce practices.
Some factors of decision of e-commerce are clear of business model, specific product,
interesting website design and price, simple to shopping, delivery on time, costumer services,
costumer satisfied, and references.
Before explaining further about the E-commerce challenges for national business law
in Indonesia, I want to explain about handicap of e-commerce development in Indonesia first.
Indonesian market or Indonesian consumers have different condition as compared to
American and European market. It has been caused by the crisis in any field, especially in
economic, social and political crises so that Indonesian market is unstable. Logically, such
condition affects the capability of the government in procuring and providing adequate
infrastructure (communication network) for the operation of e-commerce, for example,
computer devices, the internet, and telephone network. Based on the data of the Indonesian
Internet Community (KIT), the population of telephone is still low and computer (the use
thereof is just approximately 1% of the Indonesian population) has yet to be used as business
instrument as its optimum function; computer is merely used for personal purposes such as
writing mails, correspondence, and chatting).
Condition of relatively not yet become even education level, both in terms of quality
and quantity and has taken place for long in the Indonesian education system, has an
influence on the lack of readiness of human resources of the internet business providers and
actors. All the condition above has been further aggravated by the lack of facilities and
government support as reflected in legal products and law enforcement, as a result of which,
there is no legal certainty that is actually needed badly by e-commerce actors.
We should be on the alert for the various conditions above considering that the
number of Indonesian population and abundant natural resources of Indonesia (especially
 21

tourism sector and handicrafts industry) that show the huge potentials of e-commerce market
in Indonesia can become opportunities. On the one hand, e-commerce actually promises huge
benefits, but as usual a big change of technological advances is also followed by the
emergence of unwanted excesses or impacts. Consequently, the same applies to e-commerce,
at least, e-commerce excesses can be put forward as follows:
1. Is the existing regulation already adequate for electronic agreements?;
2. The issue of jurisdiction and legal issue that can be applied to the internet; and
3. The issue of law enforcement and confidentiality of such digital technology. 8
4. The issue of business competition;
5. The issue of authentication, and the like.
The three issues above need to be observed attentively. In addition to the above, the
development of e-commerce has significantly affected intellectual property rights. The
offering of goods such as books paid through credit card and subsequently the goods will be
delivered to the address of the buyer. Film or CD music purchased by way of downloading to
the computer owned by consumers, television and radio broadcasting as well as websites
becomes other complicated issue that must be faced. In order to address this issue, WIPO has
formulated a program to guarantee the security of transactions concerning intellectual
property rights.
The existing barriers must be addressed, one of which is by way of providing internet
terminal facilities (internet service provider or ISP), and development of infrastructure
(broadband optical fiber, VSAT, WAP, protocol) currently provided by Telkom and Indosat
through National Information Infrastructure (NII) or Nusantara 21 (N21) as well as
Telematika Indonesia (Indonesian Telematics).
Furthermore, it is necessary to specifically take preparatory measures for the
establishment of business process, namely: development of good corporate governance,
application of quality standards, and there has to be good commitment from e-commerce
actors, laws and regulations, payment security system (secured online payment system),
credit card (smart card) technology development so as to provide direct, quick, and secured e-
commerce payment system, regulating of tax for e-commerce transactions and uniform
commercial code.
In line with the matter mentioned above, Onno W. Purbo, says that there are four
components for the making of cyber law, especially e-commerce, namely: 1) law, 2) norms,
ethics or values agreed upon by cyber community/society or e-commerce players‘ forum so
as to guarantee the issue of security, 3) market condition, and 4) platform wherein community
relationship takes place. National information structure is also needed badly to support the
above-mentioned process. In addition to the above, human resources must be prepared to
adopt and adapt such new system by holding e-commerce training in various fields. Cyber
law must protect parties vulnerable to new model crime through e-commerce.

Closing
For short-term, e-commerce will very much assist Indonesia in restoring her economic
condition without having to spend a quite high cost. With only internet devices and
homepage as capital, a company can already do direct and quick transactions with suppliers
or consumers. Therefore, the regulating of cyber law is needed to put e-commerce behavior
and process in order such as the issue of digital signature and certificate authentication. All is
intended so that e-commerce can be trusted and becomes a secured way for the public to do
business. Electronic information and transactions law can be used as an instrument to provide

8
Wipo: E-Commerce, 2001, Three Legal Issues Of Broad Application Posed By Electronic Commerce,
page 1., op. cit.,
 22

protection and warranty of legal certainty for e-commerce players and consumers. If this
becomes a rule of thumb for all parties, then e-commerce will become an interesting and
secured challenge to be carried out in business.

REFERENCES

Julian Din, E-Commerce: Law &Practice, Malaysia :Sweet & Maxwell, Asia, 1999
Kamlesh K. Bajaj & Debjani Nag, E-Commerce; Cutting Edge of Business, McGraw-Hill,
International Edition, New Delhi, 2001, page 12.
Karim Benyekhlef in Sutan Remy Sjahdeini, E-Commerce Tinjauan dari Perspektif Huku (E-
Commerce Viewed from Legal Perspective)‖,Jurnal Hukum Bisnis (Business Law
Journal), Volume 12, 2001.
Kompas Cyber Media (KCM), e-commerce Secured Online Payment, Pelebur Keraguan
Konsumen (Consumer Doubt Smelter), May 24, 2000.
Mariam Darus Badrulzaman, Kontrak Dagang Elektronik Tinjauan Dari Aspek Hukum
Perdata, dalam Kompilasi Hukum Perikatan (Electronic Commerce Contract Viewed
from Civil Law Aspect, in Compilation of Contract Law), page 286.
Wipo: E-Commerce, 2001, Three Legal Issues Of Broad Application Posed By Electronic
Commerce, page 1., op. cit.,
 23

PLENARY SESSION

“Empowering the Theoretical and Legal Framework of E-Commerce Law in

Indonesia”

Presenters:

Taufiqurrahman
M. Zairul Alam
Sanidjar Pebrihariati R.
 24

DETERMINING THE LAW APPLICABLE TO THE DISPUTE RESOLUTION OF THE

INTERNATIONAL E-COMMERCE

Dr. Taufiqurrahman, S.H., M.Hum.1

ABSTRACT
Characteristics of the internet which is cheaper, faster and efficient, in fact, can
motivate the business actors to do a transaction of the international sale of goods
electronically (e-commerce). In line with establishing the ASEAN Economy Community 2015,
creating the disputes among domestic business actors with foreign business actors from
ASEAN countries can not be avoided. In the context of dispute resolution , the main problem
faced by a court to be solved – if the parties do not specify a choice of law clause in their
contract - is the determination of the laws of any country relevant to apply.
This study aimed to know the method that will be used by the judge or arbitrator to
determine the law applicable to the dispute resolution of the international e-commerce.
Theory used to analyze is the choice of law theories in International Private Law.
While research methods used is a normative juridical research, namely through the library
research to review the rules of positive law and legal principles. The approaches used are a
statute approach and a conceptual approach.
The results showed that law applicable clause as stipulated in Article 1 of the United
Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) relevant
to be applied to the dispute resolution of the international e-commerce. It is suggested that
the substance of the Article can be used as a reference in a harmonization of International
Commercial Law in ASEAN.

Keywords: Determining, Law Applicable, Dispute Resolution, E-Commerce

A. INTRODUCTION
The presence of public information is believed to be one of the important agenda of
the people in the third millennium. It is characterized, among others, the use of the Internet is
increasingly widespread in various activities of human life , not only in developed countries
but also in developing countries, including Indonesia. This phenomenon in turn has put the
"information" as an economic commodity that is very important and beneficial.
The existence of the Internet as one of the institutions in the mainstream of modern
business culture is further reinforced by the rise of commerce electronically (e-commerce) are
predicted as "the future business". Fever e-commerce is not only a hit for the business
community in developed countries like the United States and European countries only, but
has spread various developing countries. e-commerce that was originally engaged in the retail
trade as a Compact Disc ( CD ) or book via the World Wide Web ( www ), but it's been gone
far reaching activities in banking and banking services which include among others "account
inquiries", "loan transaction", and so on.
Internet is more selected in the trade transaction because of its easiness, namely:
1. Internet as a very large public network (huge / wide spread network), like that is
owned by a public electronic network, that is cheap, fast, and ease of access;
2. Using electronic data as a medium to deliver the message / data so it can be done
sending and receiving of information in an easy and concise, both in the form of
electronic data analog and digital.

1
University of Wijaya Putra, Email: taufiqurrahman@uwp.ac.id
 25

In a future perspective, the practice of e-commerce is increasing, both in quality and

quantity along with the globalization of the economy and its global trade / free market, both
produced by the member countries of the World Trade Organization (WTO), Association of
South East Asian Nations (ASEAN) and the Asia-Pacific Economic Cooperation (APEC).
As in conventional transactions that everything is carried out by using paper, the
possibility of disputes between parties to a transaction can not be avoided. The emergence of
a dispute between the parties in a transaction either "paper-based transaction" or " paperless-
based transaction" is normal and natural. This is because the parties are conducting e-
commerce transactions are also human being, which can not be separated from nature to
forget and to be selfish. Especially with the establishment of the ASEAN Economic
Community will be in 2015, the emergence of e-commerce disputes between the Indonesian
business actors with foreign business actors from ASEAN countries can not be avoided.
In handling of the dispute resolution of the international e- commerce, where the
elements associated with the case, namely parties, object and execution of the contract are not
in the same country, the first problem to be solved is with regard to choice of law, the law
which should be applied in dispute settlement of international e-commerce. The issue of
choice of law will always appear in the international e-commerce dispute if the contract does
not explicitly contain a choice of law clause .
Based on these objective conditions, the research problem can be formulated as
follows:
a. what is the significance of the choice of law by the parties in an international e-
commerce contract ?
b. what is the procedure of determining the law applicable in the absence of a choice of
law by the parties in international e-commerce contract ?
This study aimed to analyze the significance of the choice of law clause in an
international e-commerce contract, and also to describe the procedure of determining the law
applicable in the absence of a choice of law clause in an international e-commerce contract.
This type of research used to gather and analyze materials is a normative law
research. While the approaches used in this study are a statute approach, a conceptual
approach and a case approach.

B. THEORETICAL FRAMEWORK
The study of theories of choice of law in this study are started from a cursory review
of the choice of law by the parties, or also known as choice of law clauses in international
commercial contracts.2 As we know that the choice of law by the parties is a reflection of the
principle of party autonomy in International Private Law (IPL). Party autonomy is a principle
that reflects the will of the autonomy owned by the parties to determine the law applicable to
the international commercial contracts. In principle, the autonomy of the parties will be the
primary consideration in determining the law applicable. As the actualization of freedom
owned, the contracting parties can manifest in the form of freedom to determine the law
applicable to govern their contract.
This principle was first introduced by Dumoulin. 3 This principle emerged as a
response to dissatisfaction in the determination of the law applicable based on the objective

2
A description of the theories of choice of law as a knife used in the analysis of this paper is quoted
from the work of Taufiqurrahman entitled "Karakter Pilihan Hukum, Kajian tentang Lingkup Penerapan The
United Nations Convention on Contracts for the International Sale of Goods 1980 (Character Choice of Law,
Study on the Scope of Application of the United Nations Convention on Contracts for the International Sale of
Goods 1980)‖, PT. Bayumedia, Surabaya, 2010.
3
Sudargo Gautama. 1998. Hukum Perdata Internasional Indonesia (International Private Law), Jilid II
Bagian 4 Buku ke-5, Alumni, Bandung, p.24
 26

linkage points. He assumed that the points of objective linkage is too rigid and does not
provide room for the free will of the parties. Based on these facts, the adherents of subjective
selection switch on the will of the parties as the main linkage points in the determination of
the law applicable to the contract.
Based on a subjective choice of law which it is based on the autonomy of the parties,
the contracting parties have the freedom to choose the law that will be used to regulate their
legal relationships. The contracting parties have the freedom to choose the substantive law of
a particular national legal system to address the gap. Moreover, the principle of party
autonomy also provide the best care efforts to protect the parties' expectations and create a
form of legal certainty universally recognized in across national borders transactions. Francis
A. Gabor length stated as follows :4
“This common core is based on the universal recognition of party autonomy: that
contracting parties should enjoy the freedom to draft private contracts, selecting the
substantives law of a national legal system to fill in gaps. Party autonomy provides
the best safeguard for protecting the parties‟ expectations and creating a universally
recognized from of legal certainty in transactions cutting across national
boundaries”.
The principle of party autonomy is further developed by Friedrich Carl von Savigny.
He always argued about the "Sitz" in any legal relations that occurred. According to Savigny,
choice of law especially in the form of voluntary subjection to a law order happen because it
has been selected by the lex loci executions . Choice of law as is especially the case in
secret.5
Furthermore, this principle is further developed by Mancini. According to him, party
autonomy is one of the three pillars of the International Private Law (IPL)-whole human
building, in addition to the principle of nationality and public order.6 The freedom of the
parties to determine the law to their contractual relationships serve as the foundation of the
entire system of its IPL. The freedom of the parties to choose the law that they want is only
limited by the understanding of public order.
During its development, the doctrine of the law that gives freedom to choose the law
that will govern the contract made by the parties recognized in all legal systems. This is
confirmed by Petar Sarcevic which states : "It could be said that, in all legal systems, it is a
well-established principle that the parties are free , apart from on certain limitations, to
choose the which the law will govern Reviews their contract".7
The same view was also expressed by Lando in 1970 who wrote that "Instant
confirmation of party autonomy is so accepted by the countries of the world that it belongs to
the common core of the legal systems. Differences only exist concerning the limits of
freedom the parties". 8 Subjective theory in the determination of the law applicable to the
contract which is based on the principle of party autonomy is essentially the same

4
Francis A. Gabor. 1986. ―Emerging Unification of Confliict of Laws Rules Applicable to The
International Sale of Goods: UNCITRAL and The New Hague Conference on Private International Law‖,
Northwestern School of Law, Journal of International Law and Business, 7 NW.J.INT‘L & BUS 696, p.3
5
Sudargo Gautama, op.cit., p.25
6
Ibid.
7
Zeljko Matic, ―The Hague Convention on the Law Applicable to Contracts for the International Sale
of Goods – Rules on the law applicable‖, in Petar Sarcevic (ed.). 1990. International Contract and Conflicts of
Laws, Graham & Trotman / Martinus Nijhoff, London/Dordrecht/Boston, p.56
8
O. Lando. 1976. ‖Contract‖, International Encyclopedia of Comparative Law, Vol.III, Tubingen,
Mouton, The Hague, Paris, p.3 quoted from Petar Sarcevic, ―Choice-of-Issues Related to International Financial
Transactions with Special Emphasis on Party Autonomy and its Restrictions‖, in Petar Sarcevic dan P. Volken
(ed.). 1991. International Contract and Payments, Graham & Trotman / Martinus Nijhoff,
London/Dordrecht/Boston, p.112
 27

philosophical footing or at least goes together with the classical theory of contract law that
puts more emphasis on individual freedom of contract.9
The doctrine of choice of law in International Private Law (IPL), particularly with
respect to international transactions are oriented to provide legal certainty for the parties.
According to Stanley E. Cox , there are three models the choice of law to be accommodated
in the IPL, namely unilateral choice of law, multilateral choice of law; and substantive choice
of law.10
The unilateral choice of law emphasis on the sovereignty as the sole source of
legitimacy of any decision. According to this theory, the judicial forum to handle disputes
typically established itself as a domestic judicial, rather than an international court. The only
law that can be applied is the law of the forum.
In the view of unilateralist, the only law that can be applied is the law of the forum .
Therefore, the forum should not handle a case unless the relationships associated with the
litigation will make the application of the law of the forum can be maintained. Judges must
be held fully responsible for the content of the decision . He had to explain why or why
suspend the will of the legislature is responsible for setting the policy through judicial law-
making powers .
The unilateralist believe that forums can only improve their own policies when they
hear cases. Therefore, unilateralist wants the court takes jurisdiction over a case if the court
can apply the law of the forum with consciousness to the case. With regard to personal
jurisdiction , Stanley length stated as follows :11
… The unilateralist approach to choice of law, therefore, should insist on limiting
personal jurisdiction to only those forums that have an interest in applying their own
law to a substantial portion of the underlying conduct involved in any litigation. The
policies behind personal jurisdiction and choice of law, in short, coextend under the
unilateralist approach.
This means that a unilateralist should disapprove of personal jurisdiction obtained by
methods such as temporary presence in the form or transacting business in the forum
unrelated to the litigation.
Presence and convenience may be appropriate ways to limit venue, but as
justification for the forum‟s right to adjudicate, they establish no legitimacy for law-
wielding power. “Specific” jurisdiction is the only valid method of obtaining personal
jurisdiction over a defendant under a unilateral approach. Concormitantly, therefore,
the unilateralist rejects the notion that a disinterested third state can appropriately
exercise personal jurisdiction.
The multilateralism choice of law assume that the special law (IPL) can be developed
through the observation of all sovereignty-sovereignty are concerned and therefore treat all
equally sovereign. The role of the court or arbitral is the main multilateral peace maker or
refereeing.
Friedrich Carl von Savigny known as a father of multilateral explained that the
purpose of the analysis of multilateralism is "discovering for every legal relation (case) that
the legal territory to which, in its proper nature, it belongs or is subject (in the which it has its

9
In the Indonesian legal system, the principle of freedom of contract contained in Article 1338
Burgerlijk Wetboek (Code of Civil Law). This principle implies that the parties to a contract are free to
determine the form, manner and object of the contract entered into, on the basis of good faith in the
implementation. Contracts are made to be binding on the parties as the law.
10
Stanley E. Cox. 2001. ―Commentary: Substantive, Multilateral and Unilateral‖, 37 Willamette Law
Review 171, download dari LexisNexis ™ Academic – Document dated January 23, 2007. Compare with Gene
R. Shrive. 1996. ―Choice of Law and the Forgiving Constitution‖, 71 Ind. L.J. 271, p.271
11
Ibid., p.15
 28

seat)‖.12 Different with the unilateralist who stopping their activities at the time of the law
applicable of forum found out, multilateralist requires the development of dispute whether a
closer relationship to the other jurisdictions. a choice has to be actually made between two or
more competing jurisdictions . Therefore, a multilateral approach is often referred to as the
selecting jurisdiction.
The main objective of multilateralism approach is the uniformity of the results of the
choice of law and predictability of results. In this context, concerns the way in which the
uniformity and predictability that goal is reached, there are two (2 ) approaches were used,
namely an objective approach and the subjective approach . In the perspective of the choice
of law, theory that uses an objective approach is also referred to as the Objective Choice of
Law Theory, while the theory of subjective approach is also referred to as the Subjective
Choice of Law Theory .
The Substantive Law of options beyond sovereignty emphasizes the fact that the
pattern of conflict. Domestic law which are not suitable to represent the sovereignty dispute
is applied in the IPL disputes. There is no reason that the main content of the law applicable
to the IPL dispute reflects the contents of a particular / national law. IPL should be the law in
international character .
In the view of the adherents of the theory of choice of substantive law, the trial judge
placed himself not as a domestic court, but an international court or interstate tribunal. Courts
/ arbitral required to adjudicate disputes implement a legal device that is designed for the IPL
applied outside the domestic context. IPL device is getting legitimacy of efforts to harmonize
the expectations formed from the inter-state system .
According to adherents of this theory, the IPL is defined as "a unified system
established to resolve disputes arising from the fact that every municipal law may indicate
disagreements with other local legal system. This theory seems very idealistic as it strives to
realize the existence of rules that can be applied to all existing legal system .
In harmony with the conditions that gave rise to the theory of choice Substantive Law
, this theory aims to measure in substantive justice (substantive justice ) . Substantive justice
that has not been touched either in the Unilateral Choice of Law and The Multilateral Choice
of Law are greater accommodated within this Substantive Choice of Law. The parties from
the beginning has been able to figure out what would be the rights and obligations under the
position determined by the same substance that is applicable in all the countries in the world .
Proponents of this theory among Rabel, Zittelman and Jita highly influenced by
Friedrich Carl von Savigny‘s thought. They have a basic assumption that the need for the
principles of the IPL are already accepted as a habit in the international arena and is
considered to be universal .

C. ANALYSIS
1. The Significance of a Choice of Law Clause to the Dispute Resolution of
International e-Commerce
The contracting parties when process of negotiating and signing a contract hope that
the implementation of the contract will not arise a dispute between them. However, although
all attempts have been made so that what has been agreed can be implemented, it does not
mean that it has been closed to the possibility of emerging a dispute between the parties .

12
Hannah L. Buxbaum, 2000. ―Rethinking International Insolvency: The Neglected Role of Choice of
Law Rules and Theory‖, 36 Stan. J. Int‟l. 23, p.39, quoted from Friedrich Carl von Savigny. 1980. A Treatise on
the Conflict of Laws 133 (William Guthrie Trans, 2nd ed.). see also Friedrich K. Juenger. 1993. Choice of Law
and Multistate Justice 10-27
 29

Basically the parties are still human beings with all the advantages and disadvantages.
A variety of things that can allow the emergence of a dispute between them, which is due to
non-fulfillment of obligations by either party as set forth in the contract, the fulfillment of
obligations by one party but not as agreed in the contract and imperfect obligations
undertaken by one parties. In short, as carefully as any business transactions (including the
sale of international goods ) made, the possibility creating a disputes can not be avoided.
In connection with the settlement of international commercial disputes, both
conventionally and electronically, procedural issues must be resolved at first before touching
the substantive issues. One of the procedural issues that must be resolved first is the
determination of the law applicable.13
The issue of choice of law is important to be solved in advance by a judge or
arbitrator because it relates to the applicability of the substantive law should be applied in
resolving disputes. Without preceded by solving the problems of choice of law, it is
impossible for a judge or arbitrator who handles can make a decision on the dispute in the
international trade fair for the parties .
To determine the law that can be applied to the international commercial transactions,
either conventionally or electronically, the judge or arbitrator will examine whether there is a
choice of law clause in its contract. The approach used by the judge or arbitrator to determine
the law applicable is the subjective approach, namely taking into account the autonomous
will of the parties actualized in it‘s a clause of choice of law. Under this approach , the law
applicable to the contract is the law chosen by parties.
The choice of law by the parties can be described as the glasses. If it is used a green
monocle, then all objects will appear as green. Similarly, if the parties to a contract to choose
the law of international business a particular country, then the contract will be viewed in
terms of glasses and governed by law, the law of the chosen state .
Law chosen by the parties to be decisive in terms of assessing the validity of a
contract that is international. The selected law also specifies the terms and the timing of
default and what sanctions can be imposed on either party in the event proved to be in
default. In this context, quite naturally when the UK Lawyer continues to provide advice to
their clients for always include a choice of law clause in his contract and choose English law
as the "governing law" of contracts made with foreign partners.
Institution of choice of law is becoming increasingly important these days along with
the rapid commercial transactions between parties from different countries. Moreover, in
international commercial transaction electronically, the presence of foreign elements in the
transaction is not only based on the involvement of the parties to a transaction, but also other
related parties, namely the Internet Service Provider ( ISP ) who provide services as the
Internet.
Practical issues with regard to choice of law by parties is whether the contracting
parties actually have freedom freely without any restrictions at all in choosing a particular
legal system against the contract. Although the nature of the choice of law by parties as a
reflection of the principle of party autonomy, this does not mean giving freedom freely to the
parties to determine which law applies to the contract . This is tantamount to human rights
inherent in every person . In exercising rights owned, one is limited by the rights attached to
other people. That is, one can not properly exercise their rights without notice and even

13
Procedural 'issues that arise in international commercial disputes in addition to the choice of law is
the choice of jurisdiction and choice of forum. The choice of jurisdiction in a contract specify which state
jurisdiction has the authority to decide upon the above dispute, while the choice of forum determines what the
forums has the authority to investigate the dispute.
 30

detrimental to the interests / rights of others. This means that in performing the contract
choice of law is made, the parties must observe the restrictions .
However, in principle, most of the existing legal system recognizes the limitations in
determining the law applicable to the contract by the parties. Things that are generally
recognized as a barrier in the Choice of Law by the Parties which are: (1) the necessity of a
real relationship (real connection) between the law chosen by the contract ; (2) The choice of
law must contain a bona fide , that is based on good faith for the purpose of certainty ,
protection of fair and surer guarantee for the execution of the contract for the parties ; (3) is
not intended for smuggling law ; (4) does not conflict with the rules that are forced
(mandatory rules) , one of which is contrary to public order (public policy) .
Despite the lack of similarity in the provision limits to the parties to choose the law
applicable to the contract between the national legal systems of countries with one another,
but must not be a conflict between the law chosen by the rules of legal coercive forums that
deal with disputes the (lex forum) agreed upon by all the existing legal system . It is also
implicit in the British court decision in the case of Vita Food Products Inc. , v . Unus
Shipping Co. Ltd. (1939) A.C. 277 which states :14
"The fact that the parties have chosen a foreign law, whether or not accompanied by
the choice of a foreign tribunal, shall not, where all the other elements relevant to the
situation at the time of the choice are connected with one country only, prejudice the
application of rules of the law of that country which cannot be derogated from by
contract, hereinafter called "mandatory rules".

Some restrictions were developed in the IPL to establish the validity of a choice of
law by the parties are as follows :15
a. choice of law is limited mainly to be executed only in the legal agreement (contract).
In contract law itself, contract law is not entirely permissible, but there is a type of
contract that should not be entered into the choice of law, for example in the
employment contract ;
b. choice is restricted by law and must not conflict with the interests of the state , public
interest, public interest or public order. Public order is an emergency brake to stop the
implementation of foreign laws and also an emergency brake on the use of the
autonomy of the parties are too freely. Maintaining public order that the law chosen
by the parties is not contrary to human joints in law and society judge ;
c. choice of law may not lead to smuggling law. The choice of law must be made fairly
and in good faith, no special pick a particular legal system for the purpose of
smuggling other regulations. In other words, the legal system chosen is the legal
system that does have a certain relationship with the contract in question.

The parties in determining the law applicable to the contract can be done in a manner
expressly (express choice of law) or by implied choice of law. This view was expressed by
Zeljko Matic.16 Another opinion expressed by Petar Sarcevic distinguishing choice of law
within three (3 ) forms, namely : (1) the choice of law expressly; (2) the implied choice of
law; and (3) no choice law.17
A different opinion was also expressed by Sudargo Gautama stating that there are four
kinds of law choice in IPL, namely : (1) expressly or in so many words (uitdrukkelijk met

14
David McClean. 2000. Morris: The Conflict of Laws, Sweet & Maxwell Ltd. London, p.330
15
Sudargo Gautama. 1985. Pengantar Hukum Perdata Internasional Indonesia (Introduction to
International Private Law of Indonesia), Cet.V, Binacipta, Bandung, p.169. (herein after Sudargo Gautama I)
16
Zeljko Matic, op. cit., p.56.
17
Petar Sarcevic, op. cit., p.111
 31

zovele woorden); (2) secretly (stilzwijgend); (3) is considered (vermoedelijk ); and (4) a
hypothetical (hypothetische partiwijl).18
Mentioning no choice as a form of choice of law by the parties to the sales contract by
Petar Sarcevic above would be too much. This is based on an objective fact that the choice of
law (no choice) in the contract the parties have not opted to be enforced in a legal contract.
Those contracting intentionally or not does not intend to choose the law that will apply to the
contract. Similarly, the choice of law is considered (vermoedelijk) and hypothetical
(hypothetische partiwijl) propounded by Sudargo Gautama, the parties from the beginning is
not willing to choose the law that will govern the contract made. Not by the law chosen by
the parties, but by a judge or arbitrator.19
Unlike the no choice of law, choice of law expressly, choice of law secretly and
choice of law hypothetically contain the will of the parties to choose the law that will govern
the contract made. Therefore , the description of the shape or the way the choice of law by the
parties is more focused on the form of the choice of law expressly and and implied choice of
law.
The contracting parties in performing their choice of law explicitly faced with several
options, namely :20
( 1 ) the national law of the judge (lex fori) and foreign law;
( 2 ) the national law of the person concerned and the law of the state where the people
dwell;
( 3 ) between the national laws of those concerned and the law of the state where the goods
are located becomes object of legal relations;
( 4 ) between the national laws of those concerned and the law of the state where the
relevant legal act performed (lex loci actus);
( 5 ) the law of the country where a civil agreement born (lex fori contractus) and the law
of the country in which the execution of this agreement (lex loci solutionis).
Besides faced with several options as mentioned above , the parties should also
consider some factors that can not be ruled out . In this regard, Ravi C. Tennekoon states that
there are six factors that must be considered by the parties in determining the choice of law,
namely :21
(1) the freedom to choose the law that will be enforced ;
(2) certainty and expectations regarding the desired results based on legal documents in
question ;
(3) the sophistication of the legal system are selected ;
(4) language ;
(5) litigation forum ; and
(6) the introduction and understanding of the legal system chosen .

Unlike the strictly choice of law, in the choice of law in secret, the parties do not
explicitly specify a choice of law clause in their contract. Choice of law made by the use of
terms used in the contract. On this choice of law, judges are given the space to seek the will
of the parties that is implied in the contract.

18
Sudargo Gautama I, op.cit., p.173
19
Ibid.
20
Ibid.
21
Sutan Remy Sjahdeni. 1997. Kredit Sindikasi, Proses Pembentukan dan Aspek Hukum (Syndication
Credit, Establishing Process and Legal Aspect), Grafiti, Jakarta, p.110-111, quoted from Ravi C. Tennekoon.
1991. The Law and Regulation of International Finance, Butterwoths, London, p.17-24
 32

With regard to implied choice of law, there are different views. One of them who
deny the existence of an implied choice of law is PM North. He asks the question whether a
choice can be made by means other than strict contractual provisions :22
―How far is an ‗inferred‘ really to be regarded as a choice at all ? Should there
continue to be this division into express choice, inferred choice and no choice ? Is the second
not really the third, but one where identification of the most closely connected law may be
relatively easy‖.
In connection with the statement, Petar Sarcevic commented that purpose only
alternative to express the choice is no choice not only practiced in some countries, but also
the law. An example is Article 24 paragraph (1) the Turkish PIL Act (Act No. 2675 on the
International Private and Procedural Law of 22 May 1982, Official Gazette No.17701 ) states
that the law applicable is the law chosen is by the parties.23
Conversely those who accept the existence of inferred choice as a choice of law states
that the implied choice of law is a special category of choice of law (a special category of
choice of law). Furthermore, they state :
― In the United States, for example, inferrense is recognized and offerred special
treatment by the courts : ‗The presence of a choice-of-court clause … and the presence of
other factors in the contract may lead a court to conclude that the parties made an implied
choice of law‘‖.24
The existence of a choice of court clause in the contract that was made showed that
they secretly have determined its legal options. If the contract mentioned in the trial option is
Jakarta District Court, means secretly the parties have chosen the Indonesian law as the law
applicable (the law applicable) on the contract they made.
The existence of different views on the form of the implied choice of law t also
appeared in the Hague Conference on Private International Law, held in 1985. From the
diverse views, the Hague Conference on Private International Law finally adopted the fifth
view, namely, that the contract is made should be clearly indicated by the terms of the
contract and the relationship of the parties is viewed as a whole. Receipt of the fifth view
shows that the view that accepts the existence of "an implied choice" as a law choice to get
international recognition.
Choice of law by the parties of this fact has given assurance to them of the law that
will apply to disputes arising out of or in connection with the execution of the contract .
However, the certainty of the law is by no means all parties , or at least one of the parties can
predict the outcome (predictability) for the implementation of the contract .
This is understandable because of the substance of the law chosen by the parties based
on the principle of autonomy of the Parties are very well known by only one party, but the
other party is foreign. That could happen if the substantive law chosen is the law of one of the
contracting parties. Moreover, the parties are equally foreign to the law to be applied in
resolving disputes between them when in their contract to choose the law of another country .

2. Determining the law applicable in the Absence of a Choice of Law by the Parties
The method of determining the law applicable is based on the choice of law by the
judge or arbitrator if the parties can not determine the choice of law in contracts made, either
expressly or tacitly. It is in fact, a case of this kind has not been lifted to the surface in
cyberspace, in which the international commercial contracts electronically (e-commerce) not
to include a clause on its legal options. However, based on the objective fact that the

22
Ibid., h.112, dikutip dari P.M. North, supra n.3, p.156
23
Ibid.
24
Ibid., quoted from E.F. Scoles and P. Hay. 1982. Conflict of Laws, St. Paul, Minnesota, p.633
 33

international trade in conventional contracts during this still met the contract does not include
a choice of law clause, then it will someday be possible.
Considering this condition, attempts to do is to return to the sources of international
trade law and regulations. One of the sources of international trade law can be referenced
with regard to international trade transactions electronically is the UNCITRAL25 Model Law
on Electronic Commerce with Guide to Enactment 1996 (UNCITRAL E-Commerce). The
model law has been adopted by several states to make domestic law on electronic commerce.
Among these are Malaysia (Digital Signature Act 1997), Singapore (Electronic Transaction
Act) and other countries.
Ignaz Seidl-Hovenveldern qualify the works of international organizations, new lex
mercatoria, as the International Convention. This assessment is based on the authority and
legitimacy of these organs to remove it. 26 As an example of which is the UNCITRAL. This
institution, in accordance with the Resolution of the UN General Assembly 21202 (XX) dated
December 20, 1965, having the main task to increase the progressive harmonization and
unification of the Law of International Trade.
In the same position with the International Convention on the new lex mercatoria can
be a source of international trade law. This refers to Article 38 paragraph (1) The Statute of
the International Court of Justice, which states that there are several sources of formal law
that may be used in international dispute resolution, namely: (a) International convention; (b)
Agreement in simplified form; (c) Customary international law; (d) General principle of law;
dan (e) Subsidiary means for the determination of rules of law.27
With regard to the determination of the law applicable, the UNCITRAL E-Commerce
is just not set up at all. The model law is more focused on the recognition of the media used
in the transaction, the data message. In terms of "data message", the information created,
received, stored electronically, optical or similar means including, but not limited to EDI, e-
mail, telegram, telex and telecopy legally recognized as having validity. When they find a
device that is capable of transferring information, the model law is expected to respond to the
development of these technologies.
Although a model law does not formulate on determining of the law applicable to the
e-commerce contract, but it has laid the foundation in order modification with respect to time
and place of the occurrence of contract. The model law has set the time and place of delivery
and acceptance is communicated electronically as follows :28
(1) Unless otherwise agreed between the originator and the addressee, the dispatch of a
data message occurs when it enters an information system outside the control of the
originator or of the person who sent the data message on behalf of the originator;
(2) Unless otherwise agreed between the originator and the addressee, the time of receipt
of a data message is determined as follows:
(a) if the data message has designated an information system for the purpose of
receiving data message, receipt occurs:
(i) at the time when the data message enters the designated information system;
or

25
United Natiosn Commission on International Trade Law (UNCITRAL) is a specialized agency of the
United Nations (UN) established based on United Nations General Assembly Resolution 2205 (XXI) on
December 17, 1966
26
Huala Adolf, 1997. Hukum Ekonomi Internasional (International Law of Economy), Rajawali,
Jakarta, p.102 quoted from Cf.N.G. Onuf ―Further Thoughts on a New Source of International Law‖, quoted by
Ignaz Seidl-Hohenveldern, 1986. ―General Course on Public International Law‖, III Recueil des Cours 55
27
Ignaz Seidl-Hohenveldern, International Economic Law, 2nd revised edition, Martnus Nijhoff
Publishers, Netherlands, 1989, h.31-37
28
Article 15 of the UNCITRAL E-Commerce
 34

(ii) if the data message is sent to an information system of the addressee that is not
the designated information system, at the time when the data message is
retrieved by the addressee;
(b) if the addressee has not designated an information system, receipt occurs when the
data message enters an information system of the addressee.
The above provisions in principle asserts that the timing of the delivery of electronic
communications (data message) is when the data message enters an information system
outside the control of the originator.29 This means that the supply occur or become effective
at the time the data message enters an information system outside the control from the
addressee.30 While the determination of the time of receipt of an electronic communication is
hung on the availability of information systems owned by the addressee .
Referring to the definition of an information system as set forth in Article 2 letter (c)
Model Law , which is a " designated information system " is " a particular system that is used
to create, send, store or processing data message" .
If the addressee (in this case is the receiver of information transmitted) has designated
information system, it offers in the form of a data message sent by the originator (in this case
is the sender of information) are considered acceptable at the time the digital signature enters
the designated information system. Thus, although the addressee do not have read the receipt
that is sent by the originator, acceptance is considered to occur at the time the e-mail may
have entered the information system designated addressee.
Conversely, if the addressee does not have a designated information system, then the
e-mail sent by the originator is received at the time of digital signature entering the
information system of the addressee. Time of receipt of the data message sent by the
originator is at the time of the addressee have obtained and read the e-mail sent. This means
that for the addressee have not received or read the e-mail from the originator, the
acceptance of the e-mail has not happened yet.
Data message is considered delivered at the place where the originator has a business
position and is considered to be received at the place where the addressee has more than one
legal domicile, the domicile is the place that has the closest relationship to the transaction in
question, or where that is not having ties to the transaction in question, which is the seat of
the primary law. Conversely, if the originator or the addressee does not have a permanent
legal status, the reference used is the place where they used to be.
With no regulation of law choice in the model law is by no means a solution to the
case relating to the determination of the law applicable stalled altogether. In this case, the
alternative attempt is to refer international conventions that are more common. As noted
earlier, the UNCITRAL Model Law on Electronic Commerce is a model law that specifically
regulate trade using electronic means. This means that the model law is an international
convention that is specific . Therefore, special provisions are not set, then it is reasonable to
use the provisions of a general nature. In this context, the meaning of the general provisions
governing international trade is "The United Nations Convention on Contracts for the
International Sale of Goods 1980" (hereinafter referred to CISG).
CISG includes material aimed at the formation of international contracts negates the
purpose of the law of a particular country in international sales contracts and to facilitate the
parties in the event of conflicts of law system. CISG applies to contracts for the sale of goods

29
Article 2 (c) asserts that ―originator‖ of a data message means a person by when, or on whose behalf,
the data message purports to have been sent or generated prior to storage, if any, but it does not include a person
acting as an intermediary with respect to that data message.
30
Article 2 (d) of the UNCITRAL E-Commerce asserts that ―addressee‖ of a data message means a
person who is intended by the originator to receive the data message, but it does not include a person action as
an intermediary with respect to with data message.
 35

made between the parties having places of business are in different countries. This is
confirmed in Article 1 of CISG, namely :
(1) This Convention applies to contract of sale of goods between parties whose place of
bisness are in different states:
(a) when the States are Contracting States, or;
(b) when the rules of private international law lead to the application of the law of a
Contracting State.
(2) The fact that the parties have their places of business in different States is to be
disregarded whenever this fact does not appear either from the contract or from any
dealings between, or from information disclosed by, the parties at any time before or
at the conclusion of the contract.
(3) Neither the nationality of the parties nor the civil or commercial character of the
parties or of the contract is to be taken into consideration in determining the
application of this Convention.
Based on the foregoing, the entering into force of CISG is not a citizen of the parties
to a transaction or a civil or commercial nature of the parties, but a place of business of the
parties. The place of business must be located in different countries, in which these countries
are States Parties or, if the rules of private international law (IPL) lead to the enactment of the
law of a State Party.
Formulation as set forth in Article 1 paragraph (1) of the CISG indicates that it
imposes itself to govern the contract of sale of goods internationally. In the context of choice
of law, this provision contains two aspects are closely related to each other, the procedural
aspects of the choice of law and substantial aspect of law choice.31
Procedural aspects associated with the choice of law provision in the next paragraph
that the international character limit only relates to the place of business of the parties. While
the substantial aspects of the choice of law associated with the enforceability of these
instruments to the contract of sale of goods internationally to the parties who come from
countries participating in the Convention . In other words, this legal instrument can serve as a
substantial law governing international commercial contracts are made.
Basing the provisions of Article 1 paragraph (1) (a) above, the CISG automatically
applies to contracts of sale of goods made by and between parties whose places of business in
different States, when these countries are the contracting Parties to the CISG. Unlike the
procedure of law choice conducted conventionally, the choice of law which was introduced
by the CISG refers to the enactment of substantive rules contained in the CISG itself.

31
This provision is accommodated in Article 1 of Convention on the Law Applicable to Contract on
International Sale of Good concluded by Hague Conference on International Private Law on December 22, 1986
clearly states : ―This Convention determines the law applicable to contracts of sale of goods – (a) between
parties having their places of business in different States; (b) in all other cases involving a choice between the
laws of different States, unless such a choice arises solely from a stipulation by the parties as to the applicable
law, even if accompanied by a choice of court or arbitration.‖.
In addition, it is also contained in Article 1 of United Nations Convention on the Use of Electronic
Communications that stating : “―(1) This Convention applies to use of electronic communications in connection
with the formulation or performance of a contract between parties who places of business are in different States.
(2) The fact that the parties have their places in different States is to be regarded whenever this fact does not
appear either from the contract or from any dealings between the parties or for information disclosed by the
parties at any time before or at the conclusion of the contract‖. It means that conventions apply to all electronic
communications exchanged between parties whose places of business are in different States when at least one
party has its place of business in a Contracting State (Art.1). It may also apply by virtue of the parties' choice.
Contracts concluded for personal, family or household purposes, such as those relating to family law and the law
of succession, as well as certain financial transactions, negotiable instruments, and documents of title, are
excluded from the Convention's
 36

Substantive law chosen as the law governing the contract is not conducted by the
judge / arbitrator by or based on the rules of the IPL and is not conducted by the parties
through the choice of law clause, but it is established by the provisions of the convention
alone (choice of law by regulation). This suggests that the CISG introduces a new method of
choice of law, the rules of autonomy choice of law.
The autonomy choice of law is not very dependent on the activity of the judge /
arbitrator and the parties to impose a particular substantive law, but based on the formulation
of the convention directly enforce substantive rules of the CISG. Throughout the two main
requirements are formulated or specified by the convention met in a transaction made by the
parties, namely : (1) has a place of business in different countries; and (2) the different
countries in which the place of business of the parties are the contracting state, the transaction
is automatically subject to the substantive rules of the CISG without having to wait for a
choice of law by the judge / arbitrator or the parties. Even if the objective facts, especially in
the resolution of disputes over the international sale of goods where the role of the judge /
arbitrator remained dominant to enact substantive rules of the CISG to the dispute faced
before going on the subject of his case, It can not be said that the choice of law was done by
the judge / arbitrator. The choice of law is established by convention (choice of law by
regulation) as defined in Article 1 (1) (a) of CISG. The role of the judge / arbitrator only what
has been formulated by the Convention, which impose substantive rules of the CISG to
contracts of sale of goods made by and between parties whose places of business in different
States, that when States are the contracting states..
Basing on Article 1 paragraph (1) (a) of CISG, the judge or arbitrator may impose
CISG as the law applicable if the parties do not specify a legal option in the contract is made.
This can be done by a judge or arbitrator if one or both of the contracting parties are from
countries participating CISG. Even more that, if the law chosen by the parties to refer to the
contracting states of the CISG, CISG applies as the law chosen automatically.
When the state of one of the parties or both of the contracting parties is not as
participants in the CISG, then the judge or arbitrator using the rules of IPL to determine the
law applicable to the contract. The method of determining the law applicable is traditionally
done by basing on an objective approach and approach relationships/interests.
Basing on this approach, the determination is based on objective factors, among
others : a place made an agreement, the execution of the agreement, the citizenship of the
parties, domicile of the parties and the position of the forum as well as the relationships of
these factors. The judge or arbitrator that the law seeks to combine the linkage objective
points. Actually, the points of linkage of this objective will of the parties is also contained in
it, but will not directly affect the determination of the law applicable.
Some doctrine creating in approaches of objective, relation/interest and subjective in
development of choice of law are doctrine of ―lex loci contractus”, ―lex loci solutionis”,
“proper law of the contract", "center of gravity", ―vested rights‖, "the most characteristic
connection to the contract" and“the governmental interest analysis”.32 Determining the law

32
Analyzing detailed on choice of law doctrines can be read in Taufiqurrahman "Karakter Pilihan
Hukum, Kajian tentang Lingkup Penerapan The United Nations Convention on Contracts for the International
Sale of Goods 1980 (Character Choice of La , Study on the Scope of Application of the United Nations
Convention on Contracts for the International Sale of Goods 1980)‖, PT. Bayumedia, Surabaya, 2010. See
Sukarmi, 2005. ―Tanggung Jawab Pelaku Usaha atas Kerugian Konsumen yang Disebabkan oleh Perjanjian
Baku (Standard Contract dalam Transaksi Elektronik (The Business actors Liability to the Consumer's Injury
Caused by Standard Contract on Electronic Transaction)‖, Disertasi, Program Pascasarjana Universitas
Padjajaran, Bandung. See also ―Choice of Law‖ at <http://en.wikipedia.org/wiki/Choice_of_law>
 37

applicable based on such doctrines showed that inefficiency, uncertainty, unpredictability

and complexity are conditions that generally accompanies the choice of law using
conventional means.
Although the parties have determined choice of law in their contract, as long as the
law chosen is not reflect the international character, then in principle the law chosen not
provide optimal benefit for either part. Moreover, in determining the law applicable using an
objective approach and the relationship or interest, the above conditions increasingly faced by
the parties. The conditions are thus considered to be less in tune with the demands and needs
of the business.
The condition above reinforce the truth of the substantive choice of law analysis. As
the classification of the choice of law made by Stanley E. Cox, who split into three models
the choice of law, namely the unilateral choice of law, multilateral choice of law and
substantive choice of law, unilateral choice of law and multilateral choice of law highlight
aspects of sovereignty not touching side of justice. As adherents of the view choice of
substantive law, substantially, the ones selected to be applied in the settlement of
international disputes faced not reflect a sense of justice. Although the substance of the law
relating to international trade transactions, but the orientation of its formation solely to meet
national interests.
Choosing for the national law as the law applicable in international dispute resolution,
both on the basis of a choice of law clause and on the basis of application the IPL rules using
an objective approach and relationship / interests approach, principally the existence of the
law chosen is strange to one side or even both sides. The assurance given by a subjective
approach to the choice of law has not been touched in an optimal sense of justice between the
parties.
Similarly, for the judge / arbitrator, the certainty of the law chosen by the parties itself
don‘t provide easy of implementation. They have to learn at first because the substance of the
law chosen is foreign to them. The difficulties encountered by the judge / arbitrator is even
greater if the choice of law approach employed is an objective approach or approaches of
interest. That is, the parties do not specify a choice of law explicitly in their contract. The
judge or arbitrator have a difficulty in determining the substance of the law chosen. They do
not have the certainty of the law applicable and can not predict the rights and obligations that
should be borne because he did not know about the law at all.
As method of determining the law applicable in the conventional procedural, CISG
also accommodate the express choice of law, the silent choice of law and no choice of law.
Three choice of procedural law existing actually does not have a significant impact on the
existence of the CISG as the law applicable. Even the express choice of law recognized in the
CISG as contained in Article 6 of the CISG, but substances contained in the firm 's choice of
law differ from one another .
According to the rules of IPL, when the parties to a contract to choose the designated
state law (A) as the law applicable to contracts made, then the domestic law of State A is
exactly what will be used by the judge or arbitrator to decide upon on a dispute between the
parties. Unlike the CISG, although the parties have chosen the law of designated State as the
law applicable to the contract made, it does not mean that judge or arbitrator will
automatically enact a domestic law of the State to decide disputes that occur between them.
Moreover, the country where the legal system is designated as the law applicable have
ratified or acceded to CISG or the contracting states of CISG, the judge / arbitrator will
actually enforce the CISG. This is in accordance with the provisions contained in Article 1
paragraph (1) (b) jo. Article 7 of CISG.
 38

In addition, although CISG accommodates principle of party autonomy as contained

in the IPL rules, but between them contains a somewhat different meaning. Differences
substances contained in this principle due to the different approaches used.
In general, the approach used in the application of the principle of party autonomy is
based on the rules of the IPL is a "opting-in", while the approach to be accommodated in the
CISG is a "opting -out". If the approach of "opting-in " the party seeking to attach themselves
to the CISG should formulate his will expressly mentioned in the contract (clause choice of
law, in contrast with the approach of " opting -out " of the parties that are not expressly stated
not to be bound by the CISG are deemed to be willing to bind themselves to the CISG.
Therefore, by opting-in approach, judge or arbitrator bound by domestic law of State
A in his contract if the parties expressly choose the law of Country A as the law governing
their contract. Instead, based on the approach of opting-out, Judge or Arbiter automatically
enforces the CISG as the law applicable to the settlement of a dispute between the parties
unless they are expressly stated in the contract rejection or exclusion into force of the CISG .
Although the parties to the contract have chosen the national laws of Country A, does
not mean the domestic law of State A, which is valid for that State is the State Parties to the
Convention. According to Article 1 paragraph (1) (a) of CISG, the law applicable is the
CISG. Provisions as contained in Article 1 paragraph (1) (a) of CISG indirectly accommodate
the way the choice of law "no-choice‖. The parties whose different places of business of the
contracting states to CISG that did not formulate explicitly in the contract is deemed to have
opted CISG as the law governing the contract.
Similarly, the inferred choice recognized its existence based on the rules of the IPL
does not have a significant impact on the implementation of a particular country's legal
system with the introduction of the CISG. Under rules adopted by the IPL as the Hague
Conference in 1986 in Article 7 paragraph (1) of the Convention on the Law Applicable to
Contracts for the International Sale of Goods that contracts made must be clearly
demonstrated by the terms of the contract and the relationship of the parties seen as a whole.
For example , if the contract was made the parties select the jurisdiction (choice of
jurisdiction) Germany , then based on the rules of the IPL is considered the parties tacitly
choose German domestic law as the law applicable to the contracts they make. Therefore , the
judge or arbitrator will use the German domestic law to resolve disputes that occur between
them in connection with the execution of the contract. This does not apply to the CISG .
Although the contract contained a choice of law secretly with the choice of jurisdiction ,
namely Germany , does not mean German domestic law applicable . Considering Germany is
one of the countries that have ratified the Convention , it is very possible that the law
applicable is the CISG .

Tabel 1 : Classification of the Choice of Law based on Approach, Doctrine and Goal to
the Law Applicable
No. Classification Approach Doctrine Goal to the Law Applicable
of Law Choice
1 Unilateral Territorial / Local Law, Certainty of the validity of
Choice of Law Sovereignty Vested Rights, local/ forum law as a reflection
Comity of sovereignty
2 Multilateral Objective Lex Loci
Choice of Law Contractus,
Lex Loci Certainty enactment of certain
Solutionis, jurisdictions ,
Uniformity of the results of the
Relation / Proper Law, choice of law; and
 39

Interest The Most Predictability of results

Charracteristic
Connection,
The Most
Significance
Relation,
Governmental
Analysis

Subjective Party Autonomy

3 Substantive Uniformity The Best Substantive Justice of the law
Choice of Law in Substantive Law applicable
Substance
4 Autonomy Uniformity Modificated Party Certainty of the law applicable,
Choice of Law in Subtance Autonomy Predictability of results
and (by Opting-Out Simplicity of the time needed
Procedure approach) to choose the law
Effectiveness of the cost in
determining the law applicable

Furthermore, in the case of the absence of a choice of law (no choice) by the parties
that do not meet the qualifications as set forth in Article 1 paragraph (1) (a) jo. Article 10
CISG, which has a place of business (place of business) or dwelling habit ( habitual residence
) in the State party (contracting states), the appointment of the law made by the rules of the
IPL. Conversely, if both parties or one party has its place of business in Contracting States
then it automatically will apply the CISG (opting-out).
Appointment of the law based on the rules of the IPL is performed using the legal
qualifications of judge or arbiter (lex forum). When the IPL based on the rules of the law of
the forum pointed to the Contracting States, then automatically it can be applied CISG as the
law applicable to the dispute (Article 1 paragraph (1) (b) of CISG). Conversely, if, under the
rules of the IPL of the law refers to the law of the forum state is not Participants (non-
contracting states), then the law applicable is the domestic law of the designated country.
It is difference with the determination of the law applicable using conventional means,
determining the law applicable as accommodated in Article 1 paragraph (1) of CISG seems to
be to ensure certainty, predictability, simplicity and efficiency to the parties. Substances
contained CISG formulated by jurists from various countries is no longer reflect the
particular country's national interests , but rather reflect the interests of all countries. The
method to determine the law as accommodated in Article 1 paragraph (1) (b) of CISG
imposing its substance of CISG itself as the law applicable is very responsive to meet the
demands and needs of the business actors. Wherever the flow of goods movement is not
expected to pose a serious problem for the party. Legal barriers which is often experienced by
business actors in international commercial transaction due to the diversity of national laws
that apply at least be minimized .

D. CONCLUSION
Based on the above analysis, it can be concluded that choice of law by the parties in
international e-commerce contract has a significance both for the parties and the
judge/arbitrator, namely there will be a guarantee of the legal certainty of the law applicable
to the contract in dispute resolution. In addition, determining the law applicable as stipulated
 40

in Article 1 of CISG relevant to be applied to the dispute resolution of the international e-

commerce in case there is no clause of law choice in the contract.
It is recommended to the legislative that the substance as stipulated in Article 1 of
CISG can be used as a reference in a harmonization of International Commercial Law in
ASEAN, especially in determining the law applicable to the dispute resolution of
international e-commerce.

REFERENCES

Books
Taufiqurrahman, 2010. Karakter Pilihan Hukum, Kajian tentang Lingkup Penerapan United
Nations Convention on Contracts Sale of Goods (CISG) 1980 (Character of Law
Choice, Study on Application Scope of United Nations Convention on Contracts Sale
of Goods [CISG] 1980 ), PT. Bayumedia, ISBN 978-602-8255-48-0
Adolf, Huala, 1997. Hukum Ekonomi Internasional (International Law of Economy),
Rajawali, Jakarta Bryan A. Garner. (ed.). 1999. Black‟s Law Dictionary, Seventh
Edition, West Group, St. Paul, Minn.
Carlo H. Mastellone, "Choice of Law and Dispute Resolution Clauses", in Dennis Campbell.
1996. Structuring International Contracts., Kluwer Law International, London-The
Hague-Boston
Sudargo Gautama.. 2002. Hukum Perdata Internasional Indonesia (International Private
Law of Indonesia), Jilid III Bagian 2 Buku ke-8, Alumni, Bandung
_______1998. Hukum Perdata Internasional Indonesia (International Private Law), Jilid II
Bagian 4 Buku ke-5, Alumni, Bandung
_______, 1985. Pengantar Hukum Perdata Internasional Indonesia (Introduction to
International Private Law of Indonesia), Cet.V, Binacipta, Bandung
Hannah L. Buxbaum, 2000. ―Rethinking International Insolvency: The Neglected Role of
Choice of Law Rules and Theory‖, 36 Stan. J. Int‟l. 23
Ignaz Seidl-Hohenveldern, 1989. International Economic Law, 2 nd revised edition,
Martnus Nijhoff Publishers, Netherlands
Juenger, Friedrich K., 1993. Choice of Law and Multistate Justice 10-27
McClean, David, 2000. Morris: The Conflict of Laws, Sweet & Maxwell Ltd. London, p.330
O. Lando. 1976. ‖Contract‖, International Encyclopedia of Comparative Law, Vol.III,
Tubingen, Mouton, The Hague, Paris
Richard Gwyne etc. "Governing Law and Dispute Resolution" in Dennis Campbell (Ed.).
1996. Structuring International Contract, Kluwer Law International, London-The
Hague-Boston
Sjahdeni, Sutan Remy, 1997. Kredit Sindikasi, Proses Pembentukan dan Aspek Hukum
(Syndication Credit, Establishing Process and Legal Aspect), Grafiti, Jakarta, p.110-
111, quoted from Ravi C. Tennekoon. 1991. The Law and Regulation of International
Finance, Butterwoths, London, p.17-24
Sukarmi, 2005. ―Tanggung Jawab Pelaku Usaha atas Kerugian Konsumen yang Disebabkan
oleh Perjanjian Baku (Standard Contract dalam Transaksi Elektronik (The Business
actors Liability to the Consumer's Injury Caused by Standard Contract on Electronic
Transaction)‖, Disertasi, Program Pascasarjana Universitas Padjajaran, Bandung.
Zeljko Matic, ―The Hague Convention on the Law Applicable to Contracts for the
International Sale of Goods – Rules on the law applicable‖, in Petar Sarcevic (ed.).
1990. International Contract and Conflicts of Laws, Graham & Trotman / Martinus
Nijhoff, London/Dordrecht/Boston
 41

Articles :
Ar. Gor Seyda Dursun, 2012. ―A Critical Examination of the Role of the Party Autonomyin
International Commercial Arbitration and As Assessment of Its Role and Extent‖,
Yalova
Francis A. Gabor. 1986. ―Emerging Unification of Confliict of Laws Rules Applicable to The
International Sale of Goods: UNCITRAL and The New Hague Conference on Private
International Law‖, Northwestern School of Law, Journal of International Law and
Business, 7 NW.J.INT‘L & BUS 696
Faculty of Law University of Oslo, 2012. ―Party Autonomy, Choice of Law, Wrap Contract‖,
<http://www.duo.uio.nobitstreamhandle10852344308014.pdfsequence=1>
Gene R. Shrive, Gene R. 1996. ―Choice of Law and the Forgiving Constitution‖, 71 Ind. L.J.
271
Horatia Muir Watt, 2010. ―Party Autonomy, in International Contracts : from the Makings of
a
Jane Kaufman Winn & Jens Houbold, Electronic Promises : Contract Law Reform and E-
Commerce in a Comparative Perspective‖
<http://www.law.washington.eduDirectorydocsWinnElectronic_Promises_Revised.pd
f>
Mychael Pryles, Limits to Party Autonomy in Arbitral Procedure‖ <http://www.arbitration-
icca.orgmedia012223895489410limits_to_party_autonomy_in_international_commer
cial_arbitration.pdf>
Mythto the Requirements of Global Governance‖ . Science –po Law School
<http://www.columbia.educualliancePapersArticle_Horatia-Muir-Watt.pdf>
Mo Zhang, 2008. ―Party Autonomy and Beyond : An International Perspective of Contractual
Choice of Law‖, Tempel University Beasley School of Law, Legal Series Research
Paper Series, Research Paper No. 2008-44
<http://papers.ssrn.comsol3papers.cfmabstract_id=1084331>
Okuma Kazutake, 2005. ―Arbitration and Party Autonomy‖, The Seiman Law Review, Vol.
38, No.1 <http://www.seinan-gu.ac.jpjurahome04pdf38013801okuma.pdf>
Robert Johnson, Party Autonomy in Contract Specifying Foreign Law, 7 Wm. & Mary L.
Rev.37 (1966)
<http://scholarship.law.wm.educgiviewcontent.cgiarticle=3090&context=wmlr>
Stanley E. Cox. 2001. ―Commentary: Substantive, Multilateral and Unilateral‖, 37 Willamette
Law Review 171, download from LexisNexis ™ Academic – Document, dated
January 23, 2007
Taufiqurrahman, 2014. ―Paradigm of Universalistic Particularism to Reform the Indonesian
Economic Law in the Framework of Establishing the 2015 ASEAN Economy
Community‖, The Law Department of the Bucharest University, Juridical Tribune
Journal, Volume 4, Issue 1, June 2014, ISSN 2247-7195, e-ISSN-L 2248 – 0382,
ISSN-L 2247-7195
_______, 2012. ―The Significance of Accession to the United Nations Convention on
Contracts for the International Sale of Goods 1980 for Indonesia‖, The Law
Department of the Bucharest University, Juridical Tribune Journal, Volume 2, Issue
2, December 2012, ISSN 2247-7195, e-ISSN-L 2248 – 0382, ISSN-L 2247-7195
Univertesi Hukuk Fakultesi Dergisi
<http://www.yalova.edu.trFilesUserFiles838_Dursun.pdf>
 42

Legislation :
UNCITRAL Model Law on Electronic Signatures (2001)
UNCITRAL Model Law on Electronic Commerce (1996) with additional article 5 bis as
adopted in 1998
United Nations Convention on the Use of Electronic Communications in International
Contracts (New York, 2005)
Convention on the Law Applicable to Contract on International Sale of Good (1986)
United Nations Convention on Contract for the International Sale of Goods (1980)

Internet :
http://europa.eu/epso/doc/en_lawyling.pdf
http://www.uncitral.org/uncitral/uncitral_texts/electronic_commerce.html
http://en.wikipedia.org/wiki/Choice_of_law
http://www.dundee.ac.ukcepmlpgatewayfiles.php%3Ffile%3DCAR-11_6_508934278.pdf
http://www.emarketservices.comclubsemsprodE-Business%20Issue%20-
Applicable%20law%201%281%29.pdf
http://www.emarketservices.comclubsemsprodE-Business%20Issue%20-
Applicable%20law%202.pdf
http://www.gupea.ub.gu.sebitstream207730791200656.pdf
 43

TECHNOLOGICAL PROTECTION MEASURES (TPM) AS A PROTECTION OF

COPYRIGHTED WORKS IN E-COMMERCE TRANSACTION: RECENT LEGAL
DEVELOPMENTS IN INDONESIA

M. Zairul Alam, SH, MH1

ABSTRACT

One of the characteristics of e-commerce is the nature of the transaction can be done in real
time and globally. The ease of transaction through e-commerce is in line with the advance of
information technology. Any type of goods and services, methods of payments, and other
benefits can be enjoyed by parties through E-commerce mechanism. On the other hand,
emerging legal issues has been arising recently, such as security, privacy, electronic
contracts and the protection of copyrighted works are urgent to answer. Digital works such
as music, books, movies and other works protected by copyright are not spared from the
threat of a new type of infringement. Technological Protection Measures is often used by the
copyright owner to control, to restrict the access of digital works, and most importantly to
ensure that the commercialization of its digital works will lead to have optimal results,
especially if the copyrighted works are the object of electronic transactions. In the context of
developments in the national copyright law in Indonesia, TOM has improved significantly.
Recently, new bill of Copyright Act has been agreed by Indonesian Parliament, therefore it is
interesting to explore any legal developments and impacts of a new copyright act, especially
in terms of electronic commerce. This paper will explain the legal aspects of TOM in new
Copyright Act Number28 year 2014, concepts of TPM, its benefits and limitation both from
copyright laws as well as perspective of e-commerce laws in Indonesia.

Keywords : Technological Protection Measures (TPM), Copyright Law, E-Commerce

A. INTRODUCTION
The development of today's technology affect many aspects of commercial activities.
Various types of new business models grow, the transaction's opportunities become more
global with a numerous of ways and objects of transactions. The volumes of e-commerce
transactions today are promising potential benefits that have never imagined before. The
products varied either in aspects of its form, quantity and quality. Digital products such as
music, songs, videos, movies, images, books becomes prevalent traded online.
In addition, the amount of new risks has been arising out, in the form new kind of
crime and infringements. Infringements such as illegal downloading, illegal file-sharing,
unauthorized unlocking become increasingly happened commonplace. The need to protect
against those violations to such products, particularly in e-commerce models, becomes very
relevant to address. Moreover, creators want to make sure that the commercialization of their
products through the e-commerce business models will generate optimal profits for them.
One of possible solutions that may guarantee those profits can be reached by providing
technological protection technology that is attached to the products. The purpose of
technological protection is to give the authors to control product, and make sure that the
copyrighted worksis not used, copied, commercialized, or available for public without
author's permission
From consumers's perspectives , the technological protection of will give a certain
products's quality in terms of its authenticity. This will improve the consumer confidence to

1
Faculty of Law, Universitas Brawijaya, Email : zairulalam@ub.ac.id
 44

conduct others transaction through e-commerce mechanism. The intellectual property rights
protection over copyrighted work regulated in special chapters in new Indonesian Copyright
Law, Undang-Undang No. 28 tahun 2014. The laws guarantees through the Copyright Act,
that the copyright owner has the right to protect his creation, control creation which
associated with its commercialization. This paper will discuss to what extent the new article
regarding Technological Protection Measures in Copyright Law in Indonesia provide a new
kind of protection?, Does the TPM protection in Copyright law already provide adequate
solutions to protect copyrighted works compare to other country legal practise as well as its
opportunities and challenges?

B. DISCUSSION
1. Technological Protections and Copyright Law
Technologies as a tool of copyright protections for digital works are generally divided
into two categories: Technological Protection Measures (TPM) and Rights Managements
Information (RMI). In general, TPM is defined as a form of protection that uses technological
tools or device to protect works, in particular in a digital form. Terms of TPM are also
usually associated with Digital Rights Management (DRM). TPM provisions had been
regulated in the provisions of international treaties such as the WIPO Copyright Treaty in
1997 (WCT), WIPO Phonograms and Performers Treaty, 1997 (WPPT), or in Beijing Treaty
of 2014. As clearly stated that TPM is the protection that use of device, tools, or other
technological methods to protect digital works. Author consequently has certain rights to
access or control functions to the extent of his works can be commercialized. Another form of
protection is Rights Management Information (RMI), where RMI more focused on identity
protection, code, number, specific information that explains or refers about the creator, the
production code, the type of copyrighted works and related matters.
The first function of the TPM is to restrict an access to protected works against
unauthorized users (access function). These include access control techniques such as
cryptography, passwords, and digital signatures that protect access to information and the
protected content. The second function of the TPM is to control the use of protected works,
so the authors will know how users behavior towards the digital works (control function).
Typically, the license agreement appears as a condition to gain an access to certain
products that determines whether particular action is permissible or not. To ensure that all the
licensing conditions are met, acts of reproduction, copying, should be measured through
tracking system. This control and tracking system is designed to prevent users from any form
of actions that exceeds the rights granted. Certain products provide serial copy management
systems for digital audio recording devices, and scrambling systems for DVDs to prevent
third parties to copy without authorization2.
In the context of digital rights in regard with e-commerce, the problem of copyright
protection issues are no longer only depends on the "originality" of works but also
"authenticity" of works. Authenticity is important to ensure the quality of works is in
accordance with the information inherent in it. If the information has been altered, removed,
or is no longer accurate, it will affect the user's perception on the quality of works, especially
it is applied in e-commerce transactions, where sellers and buyers do not meet each other.

2
http://www.wipo.int/enforcement/en/faq/technological/faq03.html
 45

2. Legal Historical Background of TPM Protection in International Level

The need for adjusting international copyright protection as the impact of technology
and the internet, based on three reasons: easy copying, or distribution of works through
computer or Internet, the need for special protection for digital works, and the need of
optimal enforcement of copyrights law concerning the copyright of digital works and internet
media.
WIPO (World Intellectual Property Organization) as an international organization that
administered intellectual property rights issues seeks to respond to change certain provisions
to answer the challenges of the era of the internet and computers. Prior to 1996, WIPO, as
well as international copyright community, along with UNESCO issued a "guide
development3" as a legal platform of copyright and digital technologies regulations that could
be implemented at national level in countries members of WIPO. These efforts unfortunately
receive an adequate response. Finally WIPO held a conference called: WIPO Diplomatic
Conference on Certain Copyright and Neighboring Rights Questions, on August 2 until
December 20, 1996.
The discussion in this conference refers to a problem that is often referred to as the
"digital agenda" that includes4: first, creating a set of regulation or new rights to protect and
regulate storage and transmission of copyrighted works in digital systems, secondly, issues of
limitations and exceptions to copyright-related digital world (on limitations and exceptions to
rights in a digital environment) and third, the urgency of applying technological protection
and rights management information) on the digital works.
The important result has been achieved in the negotiations, as all members has been
agreed to the new convention: the WIPO Copyright Treaty (WCT) and the WIPO
Phonograms and Performers Treaty in 1997. In general, the convention provide new form of
rights in copyright, also new arrangements regarding the protection / copyright protection in
Technological protection Measures and Rights Management Information (Article 11 and
Article 12 of the WCT / WPPT). Provisions on the TPM set forth in article 11 of the WCT
and WPPT Article 18, both require the signatory countries to provide adequate and effective
legal remedies45.It means the signatory states are required to provide adequate rule of law,
and an effective implementation of rights and prohibition of acts that are prohibited by the
treaty. Both of these conventions become an important platform in changing the revision on
the copyright internationally in responding to the development of technology and the internet.

3. Legal Revision of TPM Provision in New Copyright Law in Indonesia

The revisions of TPM articles in the new copyright law undergone some significant
changes when compared to previous Copyright Act (Act No. 19 of 2002). The legal revisions
are described as follows :
a. Revision on TPM Definitions and Scope of Protection
Fundamental changes in the new Copyright Act contained in Article 52 of the anti-
circumvention to technological protection measures, can be described as follows:

3
The use of terms ―guide development‖ is derived from Sam Ricketson in his book ―The Berne
Convention for the Protection of Literary and Artistic Works‖ (London : Kluwer 1986) as cited in WIPO,
―WIPO Seminar for Asia and The Pacific Region on the Internet and the Protection of Intellectual Property
Rights‖ (WIPO/INT/SIN/98/4, 30 April 1998),8
4
WIPO, WIPO Intellectual Property Handbook : Policy, Law and Use, (WIPO Geneva, 2004) 281-283
5
The terms of ―remedies‖ according to Black‘s Law Dictionary is : ― the field of law dealing with the
means of enforcing rights and redressing wrong‖, sedangkan ―legal remedy‖ adalah ― a remedy available in a
court of law, as distinguished from a remedy available only in equity‖, thus in the context of international
ratification, the signatory states should provide a certain legal instrument to enforce the implementation rights
and obligations regarding infringement of copyright. Bryan S Garner,‖ Black‘s Law Dictionary‖, (8th edition,
2004)
 46

"Setiap Orang dilarang merusak, memusnahkan, menghilangkan, atau membuat tidak

berfungsi sarana kontrol teknologi yang digunakan sebagai pelindung Ciptaan atau
produk Hak Terkait serta pengaman Hak Cipta atau Hak Terkait, kecuali untuk
kepentingan pertahanan dan keamanan negara, serta sebab lain sesuai dengan
ketentuan peraturan perundang-undangan, atau diperjanjikan lain"

In the explanation of Article 52, it states the definition and scope of technological
protection measures, as follows:
"Yang dimaksud dengan 'sarana kontrol teknologi" adalah setiap teknologi,
perangkat, atau komponen yang dirancang untuk mencegah atau membatasi tindakan
yang tidak diizinkan oleh Pencipta, Pemegang Hak Cipta, pemilik Hak Terkait,
dan/atau yang dilarang oleh peraturan perundang-undangan"

According to those articles above, it can be concluded that there is clarity about the
form of prohibited acts, such as breaks, destruction or malfunction make the protection that
belongs not only by the author, but more broadly defines to copyrights holder and related
rights owner. Related rights interest of owner or performers such as a singer, actor, dancer
and other performers actors, could be better protected by new version of articles in the new
copyright law.
It will lead to normative consequence, that there are certainty and guarantee for
protection of digital works, and in addition, it will provide more incentive or motivation for
the performers to commercialise their works through e-commerce trading system. The
revision of technological protection measures (TPM) article specify clearly about the
exception against infringement action as long as it complies with the purpose of defense and
security, national interests, other interests are regulated by law and if such action has been
agreed in advance.
This will give consumer more freedom and flexibility to interacts with digital works,
especially if unlocking action against the protection is not detrimental to the legitimate
interests of the copyright holder. It is important to ensure a balance between the interests of
protection of the interests of commercialization on the one hand, and public interest on the
other side.

b. Changes in Structure in Rights Management Information Articles

Rights management information (RMI) that prior to the enactment of new copyright
act, is not adequately regulated in Law No. 19 of 2002, is now becoming more adequately
regulated. It is characterized by significant changes in two main issues. First, the definition of
RMI is not only include information in electronic form only, but also includes non-electronic
information. This is important, because both the WIPO Copyright Treaty 1997 chapter 12 and
the Beijing Treaty of 2012 has clearly set out an explanation regarding the classification of
the RMI include electronic and non-electronic information. The wider definiton provided by
this new copyright act covers : offenses alteration, removal and destruction of RMI. This
adjusment become more comprehensive, and more effective when compared to previous
copyright laws.
The prohibition of conversion, alteration and deletion RMI are no longer included in
the explanation part (bagian penjelasan) laws. The misplacement of certain legal provision,
can lead to serious legal consequences. The prohibitions article in the act become ineffective
and can not be implemented or enforceable because explanation section the act is not the
substance of the legislation which has legal implications.
 47

4. Opportunities and Challenges

a. Opportunities
TPM article adjustment in the new copyright law especially in terms of its definition
and scope, provides a guarantee and a more adequate legal certainty not only for the creator,
but also the copyright holders and performers to attach and exercise protection to their digital
works. TPM is an instrument of technology in any kind of forms, include : secret codes,
passwords, bar code, serial number, decryption technology and encryption, for protection
purposes.
The legal foundation of TPM becomes important when the products are in digital
form. Those copyrighted products are becoming increasingly protected against the acts of
circumvention to digital works. When the copyrighted works are marketed through e-
commerce systems, it has optimum protection both for creators and consumers, and engage
an experience or benefits. Consumers feel that what they have paid is worthy enough because
quality of the copyrighted works. The authors also could be assured that the
commercialization of copyrighted works is not heavily hit by the pirated products.
Rights management informations (RMI) articles also change significantly6, where the
definition of RMI and RMI destruction prohibition is no longer described in the 'explanation
part" in Act, as in the previous copyright law. Important legal implications of changing this
adjustment is product identity of copyrighted work can not be altered in every kind of a way.
The definitions of RMI includes not only in electronic form, but also are not in electronic
form. This adjustment is inline and comply with provisions of RMI with article 12 of the
WCT 1997.

b. Challenges
There is an exception regarding act of circumventions in the new copyright law.
However, the exception only in the scope of national defense and security, as well as any
other reason in accordance with the provisions of law or agreed in advance. No further
explanation about the qualifications and the reasons of exemptions in detail. If we compare to
what has been stipulated in the Copyright Act of Malaysia7, is clearly visible in detail that the
exceptions that have been clearly explained includes: research interests and interoperability
of the technology, testing the reliability of a product, the interests of libraries, educational

6
For comparative study about Rights Management Information see : M. Zairul Alam, The Protection of
Rights Management Information, A Comparative Legal Study on Rights Management Information Provisions of
United States of America and Indonesia, Master Thesis Faculty of Law, University of Indonesia, Unpublished
7
Comparing to Malaysian Copyright Act of 2012, it is clearly stated several standards that must be
fulfilled if circumvention activity considered as an exemption in article 36a. (1) If a technological protection
measure is applied to a copy of a work by or with the authorization of the owner of the copyright in the work, no
person shall circumvent, or cause or authorize any other person to circumvent, the technological protection
measure— (a) that is used by the owner of the copyright in connection with the exercise of his rights under this
Act; and (b) that restricts acts in respect of his works which are not authorized by the owner concerned or
permitted by law. (2) Subsection (1) does not apply if the circumvention of technological protection measures
is—
(a) for the sole purpose of achieving interoperability of an independently created computer program with the
original program or any other programs;vulnerabilities of encryption technology;(c) for the sole purpose of
testing, investigating or correcting the security of a computer, computer system or computer network; (d) for the
sole purpose of identifying and disabling an undisclosed capability to collect or disseminate personally
identifying information about the online activities of a natural person; (e) in relation to anything lawfully done
for the sole purpose of— (i) law enforcement; (ii) national security; or (iii) performing a statutory function; or(f)
done by a library, an archive or an educational institution for the sole purpose of making an acquisition decision
in relation to a work in which copyright subsists.
http://www.myipo.gov.my/documents/10192/2322945/COPYRIGHT%20%28AMENDMENT%29%20ACT%2
0201 2%20ENGLISH-12082014.pdf
 48

institutions and interests before the law. It is interesting to compare, whether more complete
exemption will have significant impact towards act of unlocking protection or not.
Second challenge is, the issue of removal of provisions in copyright law in Article 27
as regulated on Copyright Act year 2002. There is certain actions that are considered a
violation of law include: producing or importing or rent any equipment specifically designed
to nullify or technology control means to prevent, restrict reproduction of a work. This
omission can be explained a setback in terms of the scope of the regulation. The infringement
action against the copyright protection is closely related to the availability of a device or tool
to circumvent the protection. One of the conditions set out in the WCT or WPPT 1997, that
the signatory countries must provide a sufficient and adequate protection.
Copyright experts such as Ricketson and Ginsburg 8 explains what is meant by
"adequate legal protection and effective legal remedies" in Article 11 of the WCT. The rules
applied in the signatory countries associated with the anti-circumvention agreement are
considered "adequate" if it does not only protect against the act of circumvention but also
there should be a rule that prohibits "preparatory acts". Actions such as producing, importing,
distributing tools that are used to destroy, break, TPM should also be banned, because there is
a correlation between the availability of equipment / facility used for the circumvention act.
However, the omission of importation circumvention tools in new copyright act could be
justified, because if the importation is totally banned it can raise serious concerns about
exercising fair use and fair dealing principles for anyone which are use it illegally.

C. CONCLUSION
The development of e-commerce today requires certainty in terms of protection to
digital products. Protection through this technology achieves an adequate protection with the
revision of Law No. 19 of 2002 by Law No. 28 of 2014, especially regards to article
technological protection measures.
Two main improvements are developed in new copyright law both covers the
technological protection measures and rights management information. The improvement in
the protection is good step in digital works technological protection. It will be interesting to
conduct further research, whether the improvement on TPM articles will be followed by a
significant declining rate of digital piracy of copyrighted works.

REFERENCES

Bibliography
Sam Ricketson, ―The Berne Convention for the Protection of Literary and Artistic Works‖
(London : Kluwer 1986) WIPO, ―WIPO Seminar for Asia and The Pacific Region on
the Internet and the Protection of Intellectual Property.
Rights‖ (WIPO/INT/SIN/98/4, 30 April 1998) WIPO, WIPO Intellectual Property Handbook:
Policy, Law and Use, (WIPO Geneva, 2004).
M. Zairul Alam, The Protection of Rights Management Information, A Comparative Legal
Study on Rights Management Information Provisions of United States of America and
Indonesia, Master Thesis Faculty of Law, University of Indonesia, Unpublished,
2012.
Sam Ricketson and J.C Ginsburg, International Copyright and Neighboring Rights, (Oxford,
Oxford University Press,2006), 977.

8
S.Ricketson and J.C Ginsburg, International Copyright and Neighboring Rights, (Oxford, Oxford
University Press,2006), 977
 49

Bryan S Garner,‖ Black‘s Law Dictionary‖, (8th edition, 2004).

http://www.wipo.int/enforcement/en/faq/technological/faq03.html.
http://www.myipo.gov.my/documents/10192/2322945/COPYRIGHT%20%28AMENDMEN
T%29%20ACT%20201.
2%20ENGLISH-12082014.pdf
Copyright Act Number 19 year 2002
Copyright Act Number 28 year 2014
 50

DEFAMATION PERSON THROUGH VIRTUAL WORLD, AFTER THE

CONSTITUTIONAL COURT DECISION
IN TEST CASE Number 13-022 / PUU - IV / 2006"

Dr. Sanidjar Pebrihariati R, S.H., M.H 1

ABSTRACT
Legal counsel of the MA (24), suspected cases spread Jokowi images containing
pornography, Abdul Aziz, hoping letter requesting his client be granted suspension of
detention. With the support of the wider community, continued Abdul, it hoped the detention
may be suspended. Muhammad Arsad (24) detained since 24 October. He allegedly contains,
distribute, reproduce and Megawati Jokowi images containing pornography.
The problem in this paper: 1) What is the effect of law related to the same conduct
Article 136bis of Article 134 and Article 137 of the Criminal Code after the decision of the
Constitutional Court in Case Number 013-022 Testing / PUU - IV / 2006 ? 2) What is the legal
basis that can be used in case of defamation through cyberspace?
In conclusion : 1) The legal consequences related to the same conduct Article 136bis of
Article 134 and Article 137 of the Criminal Code after the decision of the Constitutional Court
in Case Number 013-022 Testing / PUU - IV / 2006 are : Judges of the Constitutional Court of
Article 134 and Article Article 135bis 137 of the Criminal Code creates legal uncertainty
(rechsonzekerheid) 2) the legal basis which can be used in case of defamation in cyberspace
are : Article 310 of the Criminal Code and article 27 paragraph (3) of the Act ITE, to be
categorized as a crime of defamation , it must proved the following elements :
1. The existence of intent;
2. Without the right (without permission);
3. Aim to attack the good name or honor;
4. To be known by the public.

I. INTRODUCTION
A. BACKGROUND
The attorney of the Supreme Court (24), suspected cases of deployment Jokowi images
containing pornography, Abdul Aziz, hoping mail client for suspension of detention can be
granted. With the support of the wider community, continued Abdul, it hoped the detention
may be suspended.
"We hope that the police can alleviate the case or can be released," said Abdul after
filed a letter of suspension in front of the Criminal Investigation office, Thursday (30/10)
.Abdul said, he and his family suspects planned to make a letter and send it to Jokowi. In fact,
they intend to meet Jokowi directly. "We tried to meet him, may be forgiven,"
ujarnya.Muhammad Arsad (24) detained since 24 October. He is alleged to have loaded,
distribute, reproduce images and Megawati Jokowi containing pornography.
For his actions, the suspect threatened to Article Pornography Act No. 44 of 2008 and
Act Section 310-311 of the Criminal Code on defamation in writing or defamation with the
threat of 12 years in prison.
On one hand, the act of insult or defamation through the Electronic System (Internet)
can be easily performed, while the perpetrator is very difficult to know and explore. On the
other hand, those who insulted or whose name is tainted difficult to prove that the perpetrator
was the one who did it because it was blocked by the privacy provisions stipulated in the Act

1
Bung Hatta University, Padang, West Sumatera, e-mail: sanidjar72@gmail.com
 51

ITE, and may be hampered by its technology. therefore, only law enforcement officers was, in
this case the police, who have the responsibility and authority and browse or reveal who the
perpetrators who should be responsible.

B. THEOLOGICAL PROBLEM
1. Is the legal consequences related to the same act Article 136bis of Article 134 and Article 137
of the Criminal Code after the decision of the Constitutional Court in Case No. 013-022
Testing / PUU-IV / 2006?
2. What is the legal basis which can be used in case of defamation through cyberspace?

II. LITERATURE
A. Definition of Defamation good
Until now there is no legal definition in Indonesia precise and clear about what is called
defamation. According to the phrase (in English), defamation interpreted as defamation,
slander, libel which in Indonesian (Indonesian translation) translates to defamation, slander
(oral), libel (written) is oral defamation (libel orally) while libel is written defamation (libel in
writing). In Indonesian itself until now no term to distinguish between slander and libel.
Until now, there has been no legal meaning or definition of what constitutes Hate
speech and defamation in Indonesian. In English, defamation is defined as as defamation, libel,
and slander which if translated into Indonesian is libel (defamation), oral defamation (slander),
written defamation (libel).
In the Indonesian language, there is no legal terms to distinguish these three words, when
roughly translated from English:
1) slander
Slander is published in the form of humiliation that is less clear, for example, of words,
sounds, change language, gestures and others.
2) libel
Libel is written in the form of humiliation, or in the form of drawings provided that is not
derived from the words and body language.

B. The provisions in the Criminal Code

In the Criminal Code libel termed the insult / abuse against a person contained in
Chapter XVI, Book I of the Criminal Code in particular on Article 310, Article 311, Article
315, Article 317 and Article 318 of the Criminal Code.
Criminal Section of the insult to one's actions, is generally provided for in Article 310,
Article 311 paragraph (1), Article 315, Article 317 paragraph (1) and Article 318 paragraph (1)
of the Criminal Code which states: Article 310 (1) Whoever intentionally damaging a person's
honor or reputation by way of accusing him of doing something works with real intent will
tersiarnya charges, convicted of insult, with imprisonment for ever nine months or a fine of up
to Rp 4,500, (2) If this is done by writing or pictures broadcast, performed in public or affixed,
the doers are punished because despised by writing to imprisonment for ever one year and four
months or a fine of up to Rp 4,500, (3) Excludes despised or despised by writing, if it turns out
that sipembuat do it in the public interest or because of the forced need to defend himself.
Article 311 paragraph (1) Whoever does evil or insult with insult writing, in case he
was allowed to prove and if the allegations were known not done correctly, was convicted of
false imprisonment for defaming the four-year-old. Article 315 Each insult intentionally non-
despised or despised by writing, well done to someone in public places with oral, or by writing,
or in front of the man himself orally or in deed, as well as with text that is sent or were
administered to him, punished because mild insult, with imprisonment for ever four months
and two weeks or a fine of up to Rp 4,500, -. Article 317 paragraph (1) Whoever deliberately
 52

insert or send a letter of complaint for false notices to the ruler of one's country to honor or
reputation of the so offended, then punished for complaining to malign, with imprisonment for
ever four years. Article 318 paragraph (1) Whoever deliberately by doing a deed, causing
others to false suspect committed a deed that can be punished, then convicted of defamation,
with imprisonment for ever four years.
R. Susilo explain what is meant by "insulting", which is "attacking the honor and
reputation of a person" where are attacked usually feel "ashamed". "Honor" who attacked here
only about the honor of the "good name", instead of "honor" in the sexual field.
According to R. Susilo, insult in the Criminal Code there are six kinds:
1. despised orally (smaad);
2. despised by letter / written (smaadschrift);
3. slander (laster);
4. mild insult (eenvoudige belediging);
5. pitted by slandering (lasterlijke aanklacht);
6. accusations are libelous (lasterlijke verdachtmaking)

All the above humiliation can only be prosecuted if there are complaints from people
who suffer / insulted / humiliated (in criminal law known as crime on complaint), unless the
insult was made against a public servant at the time were running a job legally and in such case
the basically not necessary or dibutuhak complaint from the victim.
The object of contempt to be a human individual, meaning not a government agency,
board an association, a class of residents and others. If the object is not an individual, then
subjected to such special provisions: Article 134 and Article 137 of the Criminal Code (insult
to the President or Vice President) who has been abolished by the Constitutional Court's
decision, as well as Article 207 and Article 208 of the Criminal Code (insult to power in
Indonesia).
Pursuant to Article 310 paragraph (1) of the Criminal Code, which can be imprisoned
insult must be done by "accused person has committed a particular act", with the intention that
the charges would spread (known people). Alleged acts do not need an act that should be
punished like steal, embezzle, adultery, and so on. The act fairly ordinary act, which is
certainly a shameful act, for example, alleges that someone has an affair. In this case the action
shall not be punished, but it is quite embarrassing for concern when announced. This allegation
must be done orally, if done with writing (letter) or image, then insult was called "despised /
insulting with a letter (in writing)", and may be subject to Article 310 paragraph (2) of the
Criminal Code.
Humiliation according to Article 310 paragraph (1) and (2) above can be excluded (can
not be punished) if the allegations or the insult done to defend the "public interest" or forced to
"defend themselves". Worth or whether the public interest defense and self-defense raised by
the accused lies in the consideration of the judge.
For a crime under Article 311 of the Criminal Code libelous, does not need to be done in
public, it is sufficient if it can be proven that there is no intention to broadcast the allegations.
If the insult in the form of a defamation complaint addressed to the Authority / official
authorities, it may be subject to criminal Article 317 of the Criminal Code.
According Muladi, Professor of Criminal Law, University of Diponegoro that can
report defamation as listed in Article 310 and 311 of the Criminal Code is the party that
attacked his honor, dignity demeaned, so that his name be reprehensible in public. However,
still no defense for those accused of defamation if convey information to the public. First, the
delivery of information was aimed Secondly, to defend themselves. Third, to reveal the truth.
So people who convey information, or a written secaralisan given a chance to prove that his
aim was true. If you can not prove it, it's called defamation or libel.
 53

As described previously, the Articles in Chapter XVI of Book I of the Criminal Code
only set insult or defamation against a person (individual / individuals), while insult or
defamation against government agencies, officials an association, or a class of population, then
arranged in specific chapters, namely:
Other than as provided for in the Criminal Justice Act (Criminal Code), relating to
"defamation" is also regulated by Act No. 32 Year 2002 on Broadcasting and Law 11 Year
2008 on Information and Electronic Transactions.
According to General Indonesian Dictionary "Contempt" is derived from the word
"Hina" which means low position (both in terms of the rank of dignity or deed behavior).
"Insult" means the act of defamation or insult or humiliate thing2, so the insult can be given as
a deed both degrading position rank, dignity, one's actions and behavior.
According to AB Loebis, understanding insult is "aanranding van eer of geode naam"
which means violating the honor and good name3. As also mentioned in Article 134 of the
Criminal Code, there is the word "intentionally" According to Indonesian dictionary
"accidentally" or by deliberate means is intended, intended or desired, it is with the intention or
purpose in advance4.
"Accidentally" (opzet) means de (bewuste) richting van den will open bepaald misdriff
(indicated conscious will to commit certain crimes). Insult (violating the honor and reputation)
is done by sipelakunya deliberately, meaning it must require violating the honor or reputation
of the person he despised5.
As described by the A.B Loebis, that insults directed at a person of honor and good
name, this honor is the value of a person as a human being, and a good name is a name that is
not dishonorable given society by observing the person.6

C. Forms of humiliation and nature

As is known in addition to Article 134, Article 136 and Article 137 bis of the Criminal
Code are also some form of humiliation that set out in Chapter XVI of the Criminal Code, from
Article 130 to Article 321.
In his A.B Loebis argue, that there is some form of humiliation, such as 7;
(1) Smaad (insult), Article 310 paragraph 1 of the Criminal Code
(2) Smaadrift (insult with writing), Article 130, paragraph 2 of the Criminal Code
(3) An insult to State employees who are or have anything to do with carrying out job
duties lawfully, Article 316 of the Criminal Code
(4) Lasterlijke aanklack (submit false complaints to the authorities, which can pollute baiak
someone's honor or reputation), Article 317 paragraph 1KUHP
(5) Lasterlijke Verdachtmaking (submit complaints to the authorities so that suspected of
committing a crime), Article 318 paragraph 1 of the Criminal Code

Insults are arranged in Book Two Chapter XVI of the Criminal Code is included in the
different delikaduan with Article 134; Article 136 bis and 137 of the Criminal Code that is not
a crime on complaint (klachdelict) except as provided in Article 316 of the Criminal Code, It
can be seen in Article 319 which reads;
2
W. J. S. Poerwadarminta, Kamus Umum Bahasa Indonesia. Cetakan Kelima Belas, Balai Pustaka,
Jakarta, 1996, hlm. 358
3
A.B. Loebis, Penghinaan Terhadap Presiden/Wakil Presiden, Perpustakaan Nasional, Jakarta, 1983,
hlm. 2
4
W. J. S. Poerwadarmita, Op. Cit, hlm. 913
5
A.B. Loebis, Op. Cit , hlm. 7
6
ibid., hlm 7
7
A.B. Loebis, Op. Cit , hlm. 3
 54

"Insults are subject to criminal penalties under this chapter, is not required if there are
no complaints from people affected by the crime, except Article 316."
Complaints defined as an unequivocal statement (oral or written or written) from a person who
is entitled to complain that deliver to the official investigator or investigators about has
committed a criminal offense by a person accompanied by a request for examination and for
further prosecution to the court.8
Contained in the complaint-based offenses in two forms 9:
a) Absolute (absolute), which by its nature can only be prosecuted if there is a complaint
b) Relative, which is classified as a crime on complaint only as long as the perpetrator to the
victim there is a close relationship.
According to Article 72 of the Criminal Code menyebt that, for offenses complaint10,
the victim or the crime directed against him will be authorized to complain, but the authorities
there are exceptions, according to the provisions of Article 320 of the Criminal Code insult to
people who have died giving authority to the family by blood relatives by marriage in line
straight.

III. DISCUSSION
1. The legal consequences related to the same act Article 136bis of Article 134 and Article
137 of the Criminal Code after the decision of the Constitutional Court in Case No. 013-
022 Testing / PUU-IV / 2006 are:
Based on its authority, the Constitutional Court has given its ruling on judicial review
of Article 134, Article 136bis and Article 137 of the Criminal Code on insulting the President
and / Vice President.
Judges of the Constitutional Court judge Article 134 Article 135bis and Article 137 of
the Criminal Code creates legal uncertainty (rechsonzekerheid) and irrelevant applied in a
democratic country such as Indonesia, the State in the form of the Republic and the sovereignty
of the people.11

a) The interpretation of the Constitutional Court

On Wednesday, dated December 6, 2006 the Constitutional Court has given its verdict.
Court in its decision stated that Article 134, 136bis and 137 of the Criminal Code is contrary to
the Constitution of the Republic of Indonesia Year 1945 and states do not have the force of law
mengikiat. In the decision the Constitutional Court, there are four people who have a different
opinion (Opinion Disenting) diantarannya, Constitutional Justice I Dewa Gede Palguna,
Sudarsono, HAS, Natabaya and H. Achmad Roestandi.12
According to the Constitutional Court Justice I Dewa Gede Palguna and Sudarsono give
consideration that is not reason enough to declare the provisions in the petition filed Testing as
provisions that are contrary to the Constitution of 1945, so that the application should be
rejected.
According to the Constitutional Court HAS, Natabaya and H. Achmad Roestandi also
said the same thing, that of the reasons outlined by the applicant in his application of Article
8
Adami Chazawi, Pelajaran Hukum Pidana: Interpretasi Hukum Pidana, Dasar Pemidanaan,
Pemberatan dan Peringanan, Kejahatan Aduan, Perbarengan Dan Ajaran Kausalitas, Bagian Dua, PT Raja
Grafindo, Jakarta, 2005, hlm. 201
9
Jan Rammelinnk, Hukum Pidana :Komentas Atas Pasal- Pasal Terpenting Dari Kitab Undang- undang
Hukum Pidana Belanda dan Padanannya Dalam Kitab Undang-Undang Hukum Pidana Indinesia, hlm. 418
10
Jan Remmelink, Op. Cit, hlm. 420-421
11
Pasal Penghinaan Presiden Telah Dicabut,www.google.com, 10 September 2012
12
Putusan Op. Cit, hlm.63
 55

134, Article 136bis and Article 137 of the Criminal Code is not in conflict with the
Constitution of the Republic of Indonesia Year 1945 .
The existence of this diversity of opinion is one characteristic of the decision of the
Constitutional Court, because each judge is authorized to provide imterpretasi constitution
based on the knowledge and thoughts on the subject perkara.Interpretasi consideration set forth
in the law on the Constitutional Court's decision.
The interpretation given by the Constitutional Court on Article 134, Article 136bis, and
Article 137 of the Criminal Code in accordance with the arguments put forward by the
applicant that the articles are contrary to the Constitution of the Republic of Indonesia Year
1945.
Court argued, Indonesia as a democratic constitutional state, a republic and sovereignty
of the people and uphold human rights as defined in the Constitution of the Republic of
Indonesia Year 1945, is not relevant to the Code of Criminal Law still contains Article -Pasal
such as Article 134, Article 136bis and Article 137 which confirms the principle of equality
before the law, reducing the freedom to express ideas and opinions, freedom of information
and the principle of legal certainty.
So that the draft Penal Code, which is a renewal and the Code of Criminal colonial
legacy also must not contain any clauses that are identical or similar to Article 134, Article
136bis and Article 137 of the Criminal Code. Moreover, criminal sanctions for violation of
Article 134 of the longest six years in prison can be used to inhibit the democratic process,
especially access to public offices that require a person never convicted of a criminal offense
punishable by imprisonment for five years or more.
When viewed from nature, Article 134, PSAL 136bis and Article 137 of the Criminal
Code does not constitute a crime on complaint (klachtdelict). King's dignity does not justify the
King acted as pengagdu (aanklager) ". Article 134 (as the concordance of Article 111 WvS
Nederland) is a connection-specific article imposing criminal defamation against the King (or
Queen) of the Netherlands. "Private King is closely related (verweven) with the interests of the
state (staasbelang), thus requiring the protection of the dignity of the King Special.
The threat of imprisonment under Article 134 of the Criminal Code (formerly Article
134WvS Nederlands - Indie) more than the threat of imprisonment berta listed in Article 111
WvS Nederland, the penalty of imprisonment not exceeding six years or a fine of three hundred
dollars in Article 134 of the Criminal Code, while threats imprisonment set forth in Artikel111
WvS Nederland is a maximum of five years or a fine of three hundred guilders. more enduring
constant threat of punishment imposed on the colonies than the penalty imposed in nengeri
Netherlands.
Definition of humiliation (belediging) according to Article 111 WvS Nederland has the
same meaning with the understanding beledeging according to Article 261 WvS Nederland, or
Article 310 of the Criminal Code. That Article 111 WvS Nederland (or Article 134 of the
Criminal Code) is the specificity of the offenses in Chapter XVI WvS Nederland about
humiliation, or Chapter XVI of the Criminal Code. So the sense of humiliation under Article
134 of the Criminal Code relating to the meaning of Article 310-321 KIHP insult. But
according Mardjono Reksodiputro, different legal treatment (discriminatory) where the actors
(dader) of Article 134 of the Criminal Code punishable by more berta (most lamaenam years)
compared with the threat of more severe punishment (maximum of six years) compared with
the threat of prison sentences for perpetrators of contempt pursuant to Article 310 of the
Criminal Code which is punishable by a maximum imprisonment of nine months or a fine of
four thousand five hundred dollars and new culprit may be prosecuted on the basis of the
complaint (klacht).
In addition to the above, the Constitutional Court also consider the opinions of the
experts, and against Reksodiputro, and JE Sahetapy, which sees these Articles do not need to
 56

apply again. And against Reksodiputro, found, meaning humiliation should use a growing
understanding in the community of Article 310-321 of the Criminal Code. Taking into account
the development of the development of social values of the fundamental (social values) in a
modern democratic society, the defamation offense may no longer be used to inhibit criticism
and protest against government policies (central and local), as well as government officials
(central and local ). No need for a special defamation offense against the President or Vice-
President, in a republic where state interests can not be associated with personal or Vice-
President, as it applies to a King in a royal state.
According Mardjono Reksodiputro, found in Article V Oendang-Oendang No. 1 of
1946 states: "The criminal provisions that are entirely or partially unenforceable, or in conflict
with the position of the Republic of Indonesia as an independent State, or no meaning anymore,
must be entirely or as invalid." In addition, experts also said, it is necessary to distinguish
between criticism and defamation, slander and insult. Democracy can work if offset reform.
Without reform, democracy will be 'dead letter'.
Court also presented expert witness, namely: Andi Hamzah, who sees that, the problem
is not the norm, but rather on the application of these norms by the prosecutor. In the Book of
the Criminal Justice Act adheres to the principles of opportunity, so that whether to charge or
not is up to the prosecutor, as well as whether a person is doing it an insult or criticism is
authorized prosecutor or judge of criminal justice, not the authority of the Constitutional Court.
If Article 134, Article 136bis and Article 137 of the Criminal Code was abolished, the
perpetrator can still be punished because there is Article 310, although less severe sanctions
and complaint-based offenses. Third Amendment Act of 1945 Article 1 Paragraph (2) reads:
"Sovereignty belongs to the people and implemented in accordance with the Constitution."
Sovereignty or sovereighnty be on people and the President and Vice President are
elected directly by the people, so therefore responsible to rakyat.Martabat President or Vice
President is entitled respected protocol, but can not be given privileges resulting status and
treatment as a human whose dignity is substantively different from the citizens before the law
lainnya. Presiden or Vice President shall not obtain legal previlege discriminatory treatment in
contrast to the position of the masses as the holder of supreme sovereignty. Except as
procedural in order to support certain previlege function can be given to the President and / or
Vice President.
In application of Article 134, Article 136bis and Article 137 of the Criminal Justice Act
could create legal uncertainty (rechtsonzekerheid) because it is very susceptible to the
interpretation whether a protest, statement or opinion is criticism or insult against the President
or Vice President. It is constitutionally contradictory to Article 28D Paragraph (1) of the 1945
Constitution can hamper the efforts of communication and acquisition of information, as
guaranteed by Article 28F of the Act of 1945.
Defamation offense against the President and / or Vice President according to the law
should be applied to Article 310. Article 321 of the Code of Criminal Law, if the insult
(belediging) addressed in his personal qualities. And Article 207 of the Criminal Justice Act in
terms of insults addressed to the President and / or Vice President as officials (als
ambtsdrager).
With the above ruling of the Constitutional Court are constitutional judges who have a
difference of opinion (Opinion Disenting) .Hakim Constitution states that have a difference of
opinion, the petition of the applicant should be rejected and the view that there were
insufficient grounds to declare the provisions unconstitutional petitioned -Undang 1945.
According to them, the article still need to protect the dignity of the President and Vice
Presiden.Mereka judge, the case faced by Eggy and income is about the application of the law
of the investigator is not a form of violation of Constitutional Rights. The disenter also
confirmed that, this means that the responsibility of the Parliament together with the
 57

Government to undertake a legislative review of the legislation. All that is subject to the policy
of the law (legal policy) of the legislators in this Parliament and the Government, whether
defamation offense against the President who is a stand-alone offense (zelfstandigedelict)
would be a crime on complaint (klacht delict). Likewise, the threat of punishment directed
against defamation offense against the President will receive a (strafvermindering) or not.
From the view of the Constitutional Court relied upon as legal considerations in the
Decision Test Case Number 013-022 / PUU-IV / 2006 relating to defamation against the
President and Vice President of the use of interpretation with the historical approach. Bhawa
insult according to the history of the formation of of the Criminal Code by the colonial
government was intended to protect the future King or Queen of the Netherlands which is a
chapter of special treatment because of the dignity of a king or queen that does not justify the
King or Queen to act as spotters.
According to the authors that the view of the Constitutional Court makes history as the
basic approach to legal reasoning in Decision Test Case Number 013-022 / PUU-IV / 2006
related to insulting the President or Vice President is right, because the historical approach the
Constitutional Court can determine the purpose and Articles purpose why the special treatment
applied during the colonial rule. so that by reason of the history of the Constitutional Court in
its decision stated that pasa-related article insulting the President or Vice President, Article
134, Article 136bis and Article 137 of the Criminal Code is contrary to the Constitution of the
Republic of Indonesia Year 1945 and no longer have binding legal force.
In application of Article 134, Article 136 and Article 137 bis of the Criminal Code is
used to protect the President and Vice-President, in this case indicated insult to his position as
president and vice president is not shown on his personal qualities, this provision applies since
established by Act 1946 No. 1 of the Criminal Code until finally declared contrary to the
Constitution of the Republic of Indonesia Year 1945 and no longer have binding legal force by
the Constitutional Court in its Decision test Case no: 013-022 / PUU-IV / 2006.
Thus the application of Article 134 of the of the Criminal Code offense is not a
complaint, it means without any complaints from the President or Vice-President, then insult to
them may be filed by the prosecution to the court because of his position (ambtshalve).
If the position of abject People who she was, she did not know, it means he does not know that
the person he despised it was the president or vice president, the Articles shall not be applicable
to it, but that can only be applied is the Articles of Chapter XVI of the Second Book of the
Criminal Code.
In the case of contempt shown to someone yangbukan President or Vice President then
applied to him in Chapter xvi of the Criminal Code provisions on defamation are arranged
starting from Article 310-321 of the Criminal Code.
In these provisions insult deeds be shown to "someone" who wider scope of
application, in contrast to the case with Chapter II of the Criminal Code of crimes against the
President and Vice President are in the provisions specify that insults directed only to the
President or Vice President.
The words contained in Article 134 of the Criminal Code also contained in Article 310
paragraph 1 of the Criminal Code which in its provisions read as follows:
Anyone who intentionally violate the honor and reputation of a person, by accusing a
certain fact, the real purpose of spreading, deemed guilty of insult and is punishable by a
maximum imprisonment of nine months or a maximum fine of empar thousand five hundred
dollars.
Aside from what is contained in Article 144 of the Criminal Code required the
implementation of additional elements.13

13
A.B. Loebis, Op. Cit hlm. 2
 58

a. to accuse a particular fact

b. The real purpose to disseminate

While the application of Article 134 of the Criminal Code is only sufficient to meet
only two elements:
a. Violating the honor or reputation
b. Deliberately

Furthermore, according Simons opinion, insult was considered to occur if:14

a. If the elements of a good name, if the speech that violates a person's good name has
been known by others, do not need the person's good name has been violated.
b. If the elements of a person's honor, then honor that someone new offense occurred,
when the utterance in violation of the honor it was to him alone.

Another case in Noyon, in terms of both of the Criminal Code Chapter II of the book he
argues, that for the honor violation, do not need to know the man himself, AB Loebis agree
with what it says by Noyon that for offenders someone's honor or reputation of the utterance
enough to ear or known by others (third parties) does not need to be well known by the injured
parties, this means, that if the insult is spoken and heard by a third party on the same day, the
insult was considered to have occurred, although the injured party another learned today.
With the enactment of the principle of non-retroactivity and the Act is deemed valid until
declared contrary to the Constitution of the Republic of Indonesia Year 1945, the articles of the
Code of the Criminal Justice Act remain valid until December 6, 2006.
Decision of the Constitutional Court related to the testing of Article 134, Article 136bis
and Article 137 of the Criminal Code binding legal force since completed pronounced on
Wednesday, December 6, 2006, in plenary session open to the public. Since the judgment is
read, investigators and prosecutors no longer be able to sue a person who committed acts or
deeds that can be charged under Article 134, Article 136bis and Article 137 of the Criminal
Code, because the articles are declared contrary to the Constitution of the State Republic of
Indonesia Year 1945 and no longer have binding legal force.
But before those articles are declared contrary to the Constitution of the Republic of
Indonesia Year 1945 and does not have binding legal force, the defendant who became
applicant has been charged with insulting the President acts submitted to court and country.
Defendants were prosecuted and sentenced by the judge after the decision of the Constitutional
Court. In this case the prosecutor and district court judge based his opinion on the stance that
the decision is not retroactive and does not have legal consequences to the defendant
committed before the Constitutional Court's decision.
The rationale that is not in accordance with the provisions of the Criminal Justice Act
regulating the First Book of the General Rules in Chapter I of the limits of the criminal law
enactment of legislation contained in Article 1 Paragraph (1) and (2) .
As contained in Paragraph (1) that, an act can not be convicted, except Based kekuata-
criminal statutory provisions which have ada.bahwa provisions on defamation against the
President or Vice-President is the basis of prosecution and sentencing by the judge was initially
set at in the Second Book of the Criminal Code that regulates the crime in Chapter II of the
crimes against the dignity of the President and Vice President, but the tested conditions has
been declared contrary to the Constitution of the Republic of Indonesia Year 1945 and no
longer have binding legal force.

14
A.B. Loebis, Op. Cit hlm. 9-10
 59

Similarly, contained in paragraph (2) that, bilaman there is a change in the law after the
deed is done, the defendant applied to the most advantageous conditions. So the actions taken
by prosecutors and judges who prosecute and convict the defendant with the provision that has
been declared contrary to the Constitution of the Republic of Indonesia Year 1945 and have no
legal binding, was contrary to Article 1 Paragraph (2) of the Criminal Code.
In the event of loss of dignity protection of the President or the Vice President does not
mean humiliation (beledeging) addressed to him be legalized. Article 310-312 of the Criminal
Code can be used as the basis for the prosecution of those who intentionally do insults or other
acts that are considered unpleasant for President or Vice President as Personal qualities. And
also Article 207 of the Criminal Justice Act against the President as officials (als ambtsdrager).
Only difference is, in addition to criminal who threatened not weighing article insulting
the President and Vice-President, this article is also a "complaint-based offense" (klacht delict)
instead of "ordinary offense" can only be done where the prosecution previously had no
reporting in advance of those who feel insulted by taking into account the responsibility of
reporting time.
The foregoing in accordance with the views Andi Hamzah, as an expert witness that,
although the aforementioned articles abolished, then in the event of the same conduct after the
decision of the Constitutional Court, the offender may still be charged with contempt of Article
310 of the Criminal Code despite a lighter sentence and a complaint-based offense.

2. The legal basis which can be used in case of defamation through cyberspace are:
a. Send electronic mail (e-mail) directly addressed to the Privacy Policy Facebook to inform
any other party that makes a duplicate with the account (account) on behalf of your
friends with the intent of the creator of a series of defaming the school, and asked to close
accounts (accounts), so that the offender is no longer able to repeat his actions, and
b. Reporting to the authorities on suspicion of the crime of defamation and insult.
While in Law No. 11 of 2008, Article 27 paragraph (3) which states:
"Any person intentionally and without right to distribute and / or transmit and / or make
accessible Electronic Information and / or Electronic Documents which have a charge of
contempt and / or defamation.

"Related to report to the authorities, there are two (2) the legal basis which can be used as the
basis of a report that is defamation under Law No. 11 Year 2008 on Information and Electronic
Transaction ("EIT Law") and insult based on the book of the Criminal Justice Act ("of the
Criminal Code"), which in principle can be combined.
1. Defamation Based UU ITE
In the EIT Law, defamation under Article 27 paragraph (3) jo. Article 45
paragraph (1), each of which is cited as the following:
Clause 27 (3): "Any person intentionally and without right to distribute and / or transmit
and / or make accessible electronic information and / or electronic documents which
charged insult and / or defamation".
Article 45 paragraph (1): "Every person who meets the elements referred to in
Article 27 paragraph (1), paragraph (2), paragraph (3), or paragraph (4) shall be
punished with imprisonment of six (6) years and / or a fine of not more
1,000,000,000.00 (one billion dollars) ". Thus, the provisions of Article 27 paragraph
(3) above the EIT Law, defamation by means of duplicate accounts (account) facebook
fulfilled the "make accessible electronic information and / or electronic documents",
thus including criminal acts.
2. Insult Under of the Criminal Code
 60

If the IT Act governing defamation, contempt of the Criminal Code regulates

the article. Article 310 of the Criminal Code, which is quoted as follows: "Whoever
intentionally attacking the honor or reputation of a person with alleges something, the
obvious intent to give it public knowledge, threatened due to contamination with
imprisonment of nine months or a maximum fine of four thousand five hundred dollars
".

So that the provisions of Article 310 of the Criminal Code of the foregoing, it must be
proven the following elements:
a. The intentional;
b. Elements of attacking the honor and good name;
c. element in public.

To prove the allegations, is not easy to present evidence such as the crimes are virtual
(cyber crime). However, preliminary evidence can be presented with evidence printout (print-
out) which shows the defamation of the school, so that investigators can perform data
processing and further information. To be sure, indispensable presence of experts in the field of
information and technology that can help translate the facts in the virtual world has become a
fact of law.
In terms of civil law, with evidence of a permanent legal decision berkuatan (inkracht
van gewijsde) regarding the intended criminal, so it can be filed tort claims based on the
provisions of Article 1372 Code of Civil Law, which is cited as follows:
"Civil claim about humiliation is aimed gets the restitution and restoration of honor and good
name." Article 310 of the Criminal Code and Article 27 paragraph (3) of the Act ITE, to be
categorized as a crime of defamation, it must be proved the following elements:
1. There is deliberate;
2. Without the right (without permission);
3. Aim to attack the reputation or honor;
4. To be known by the public.

Crime in cyberspace is a modern crime that appears along with the development of
science and teknologi.Kejahatan in cyberspace has different characteristics with conventional
kejahtan crimes contained in the Criminal Justice Act (of the Criminal Code).

V. CLOSING
A. Conclusions
Due to the Law Against Acts of the Same Related Article 134, Article 136bis and
Article 137 of the Criminal Code after the Constitutional Court's decision is that, the provisions
of Article 134, Article 136bis and Article 137 of the Criminal Code that regulate defamation
against the President or the Vice President has been declared contrary to Constitution of the
Republic of Indonesia Year 1945 and does not have binding legal force that no longer can be
used as a basis for prosecution by the prosecution and sentencing by the judge. However, the
contempt action is still possible to be prosecuted under section 310-312 of the Criminal Code
as the personal qualities and also Article 207 of the Criminal Code against the President as
officials (als ambtsdrager).
Article 310 of the Criminal Code and Article 27 paragraph (3) of the Act ITE, to be
categorized as a crime of defamation, it must be proved the following elements:
a. The existence of intent;
b. Without the right (without permission);
c. Aiming to attack the reputation or honor;
 61

d. To be known by the public.

Crime in cyberspace is a modern crime that appears along with the development of
science and teknologi.Kejahatan in cyberspace has different characteristics with conventional
kejahtan crimes contained in the Criminal Justice Act (of the Criminal Code)

B. ADVICE
Actions of prosecutors and judges to prosecute and sentence him to the applicant as a
defendant related provisions of Article 134, Article 136bis and Article 137 of the Criminal
Code that regulate defamation against the President or the Vice President has been declared
contrary to the Constitution of the Republic of Indonesia Year 1945, should be freed on appeal
or cassation, given the base which is required by the prosecution and sentencing by the judge
contrary to the Constitution of the Republic of Indonesia Year 1945 and does not have binding
legal force.

REFERENCE

1. Books
A.B. Loebis, Penghinaan Terhadap Presiden / Wakil Presiden, Perpustakaan Nasional,
Jakarta, 1983
Achmad Ali, Menguak Tabir Hukum, Gunung Agung, Cetakan ke dua Jakarta,2002
Achmad Roestandi, Mahkamah Konstitusi Dalam Tanya Jawab, Cetakan Pertama
Adami Chazawi, Pelajaran Hukum Pidana: Interpretasi Hukum Pidana, Dasar Pemidanaan,
Pemberatan dan Peringanan, Kejahatan Aduan, Perbarengan Dan Ajaran
Kausalitas, Bagian Dua, PT Raja Grafindo, Jakarta, 2005
Johnny Ibrahim, Teori dan Metodologi Penelitian Hukum Normatif Cetakan Kedua,
Bayumedia, Malang, 2006
Jan Rammelinnk, Hukum Pidana : Komentas Atas Pasal- Pasal Terpenting Dari Kitab
Undang- undang Hukum Pidana Belanda dan Padanannya Dalam Kitab Undang-
Undang Hukum Pidana Indinesia.
W. J. S Poerdarwarmita, Kamus Umum Bahasa Indonesia, Cetakan Kelima Belas,
Balai Pustaka, Jakarta. 1996
Wirjono Prodjodikoro, Azaz-Azaz Hukum Tata Negara Di Indonesia, Cetakan Kelima,
Dian Rakyat, Jakarta, 1983

2. Peraturan Perundang-Undangan:
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945
Undang- Undang Nomor 24 Tahun 2003 Jo Undang-Undang Nomor 8 Tahun 2011tentang
Perubahan Undang- Undang Mahkamah Konstitusi.
Undang-Undang Nomor 48 Tahun 2008 tentang Kekuasan Kehakiman
Kitab Undang-Undang Hukum Perdata (Burgerlijk Wetboek, Staatsblad 1847 Nomor 23)
Kitab Undang-Undang Hukum Pidana (Wetboek van Strafrecht, Staatsblad 1915 Nomor
73)
Undang-Undang Nomor 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik
 62

PLENARY SESSION

“Introducing E-Commerce Law in the Criminal Law Perspective”

Presenters:

Jeanne Darc Noviayanti Manik

Faizin Sulistio
Emmilia Rusdiana
 63

NATIONAL AND INTERNATIONAL LAW ENFORCEMENT AGAINST MONEY

LAUNDERING IN CYBERSPACE

Jeanne Darc Noviayanti Manik1

ABSTRACT
The globalization of information has put Indonesia as part of the. world information society
that requires the establishment of a regulation on the Information and Electronic Transaction
at the national level so that the development of Information Technology can be performed
optimally, evenly, and spread to all walks of life to educating the nation. Government should
support the development of Information Technology through the legal and regulatory
infrastructure. In general, the material of Information Act and the Electronic Transactions
No. 8 of 2008 in Indonesia is divided into two major parts, namely the arrangement of
information and electronic transactions and arrangements concerning prohibited acts. Some
material prohibited (cyber crimes) are arranged in the ITE Law, among others: 1. illegal
content, which consists of, among other things: morality, gambling, insults / defamation,
threats and extortion; 2 illegal access; 3. illegal interception; 4. disruption to the data; 5.
disruption to the system; 6. misuse of tools and equipment. Money laundering transaction
mode is now growing. Center for Financial Transaction Reports and Analysis do not want to
miss with the rise of various modes of the money laundering transactions. Center for
Financial Transaction Reports and Analysis has continued to make observations on the use
of New Payment Method in the mode of money laundering. This mode can be done with
gambling via the Internet (online gaming). Need a good cooperation with the authorities in a
country using the national law and international cooperation with international law
enforcement use of gambling online games in cyberspace law.

Keyword: law enforcement, sanctions, money laundering, collaboration, virtual world

INTRODUCTION
The globalization of information has put Indonesia as part of worldwide information
society requires the establishment of rules on Information and Electronic Transactions at the
national level so that the development of Information Technology can be performed
optimally, evenly, and spread to all walks of life to educating the nation.
The government should support the development of information technology through
the legal and regulatory infrastructure. In general, the material of Information Act and
Electronic Transaction No. 8 of 2008 in Indonesia is divided into two major parts, namely the
arrangement of information and electronic transactions and arrangements regarding
prohibited acts. This mode can be done by gambling via the Internet (online games). Cases of
gambling that use information technology tools from time to time continue to flourish.
Problem gambling and gambling is an issue that has become a very classical and wrong in
society.
In line with the development of society, science, technology and globalization, the
level and mode of the crime of gambling also experience changes in both quality and
quantity. In essence betting or gambling is clearly contrary to the religion, morality, and
moral Pancasila, as well as endanger the livelihood and lives of the people, nation and
country.

1
Mahasiswa Fakultas Hukum Universitas Brawijaya Tahun 2014, Program Doktor Ilmu Hukum ,
novi_palembang@yahoo.com
 64

Kartini Kartono defines gambling as "betting on purpose, ie a value bet or

something that is considered valuable by being aware of the risk and certain expectations on
events, play games, competitions and events that do not / uncertain outcome.2
In the interpretation of the Code of Penal gambling is defined as: Gambling game
meant to be interpreted with a broad sense also includes all losing bets on the winning of a
racetrack or other game, or any gamble, in a race a race that is held between two people who
do not take part in the competitions themselves, for example totalisator and others.
Code of Criminal Law in Article 303 paragraph (3) defines gambling as: Each game is
based hope for a win in general depend on chance alone and also if hope that the large
increases since the game due to the ingenuity and habits. Including gambling is betting on a
race or other game decisions, which are not held by those who partakes or play it, as well all
others games.
Some materials that are prohibited (cyber crime) which is set in the ITE Law, among
others: 1. illegal content, which consists of, among other things: morality, gambling,
defamation / libel, threats and extortion; 2 illegal access; 3. The illegal interception; 4.
disruption to the data; 5. disruption to the system; 6. misuse of tools and equipment.

LEGAL MATERIALS AND METHODS

Normative legal research is descriptive qualitative, the results of the classification and
identification of legal normative analysis process is carried out by the method of deductive
reasoning, which connects legislation with each other. The analysis is descriptive analysis,
aided analysis tools such grammatical interpretation (grammar) that helps describe and
explain the meaning of the law and explain the meaning of the law, also used systemic
interpretation of the passage connecting * with the other.
Approach to the problems in this paper uses the approach of law (statute approach)
and the approach of the concept (conseptual approach). Regulatory approach used to assess
and analyze from the point of view of legislation. Sources of legal materials used are
materials obtained from library materials, namely primary legal materials in the form of laws
and other regulations concerned with writing. In addition, secondary legal materials used
include the official documents, research results and so forth.

RESULT AND DISCUSSION

The term cybercrime today refers to a crime that is associated with the virtual world
(cyber space) and the use of a computer crime. There are experts equalize the cyber crime
with computer crime, and there are experts who distinguish between the two. Although there
is no agreement on the definition of information technology crime, but there is a common
understanding of the universal computer crime.
Assisted PPATK, police trace the suspicion of manufacture of 140 TPPU accounts
now blocked this. It refers to the context of online gambling legal in Indonesia, which is
considered to contain elements of TPPU . "Online gambling is different right, the culprit in
the virtual world so sometimes it is not as far back as anyone, so it could be the result of
money laundering gambling money," said Vice Chairman Agus PPATK in Jakarta, Sunday
(17/11). Of elements derived from the TPPU , online gambling offender must also accept
money in blocked accounts seized by the state. Of course, only the money that snagged the
flow of funds from gambling revenue that will be confiscated.
That's according to Agus accordance with the Rules of the Supreme Court (Perma) 1/2013,
regarding the legal instrument void filler mandate of Article 67 TPPU Law. It is possible to
perform the deprivation of assets if the culprit was not found. Underline the phrase 'if the

2
Kartini Kartono, Patologi Sosial, Jilid I, PT Raja Grafindo Persada, Jakarta, 2005, hlm. 56
 65

perpetrator is not found' that cybercrime is much more complicated than the conventional
criminal. Cyberc riminals can commit a crime in Indonesia, but do it from the other
hemisphere so that profiteering phrase 'if the perpetrator is not found' necessary.
Appropriation of money indicated TPPU system itself, a simple walk. The police
will give notice to the owner of the account that the balance will be drained if actors do not
manifest themselves. The deadline is 30 days. If still nothing, immediately seized with court
approval. PPATK are optimistic that online gambling money allegedly turnover reached
hundreds of billions in Indonesia can be stopped. With the appropriation system, whoever he
thinks will be a deterrent to gamble in Indonesia. Compactness / coordination between
PPATK, the police and the Ministry of Communications and Information Technology
(Kemenkominfo) is key in the fight against online gambling. On the other hand, he also
hoped to Kemenkominfo can dampen the rise of online gambling sites like felled one
thousand grow.
In general understanding of money laundering is an attempt to conceal or disguise the
act of the origins of money / funds or assets of the proceeds of crime through a variety of
financial transactions in order to money or possessions that looked as if it came from a
legitimate activity / legal. In positive law, it is stipulated in Law No. 8 of 2010 on the
Prevention and Eradication of Money Laundering ("TPPU Law").
Article 1 point 1 TPPU Law states: "money laundering is any act that meets the elements of a
criminal offense under the provisions of this law."
In the TPPU Law, money laundering is divided into three (3) criminal offenses:
1. The criminal act of money laundering active, that every person who places, transfer,
assign, spending, pay out , donate, entrust, bringing overseas, reshaped, with money
exchange money or securities or other actions on assets that is known or reasonably
suspected to be proceeds of crime with the purpose of concealing or disguising the
origin of the assets. For this offense the perpetrator shall be punished by a maximum
imprisonment of 20 (twenty) years and a fine of not more Rp.10.000.000.000,00 (ten
billion dollars). This is set out in Article 3 TPPU Law which states that:
"Any person who places, transfer, assign, spend, pay, grant, leave, bringing
overseas, remodel, exchange of currency or securities or any other actions of assets
that is known or reasonably suspected to be proceeds of crime referred in Article 2
paragraph (1) with the purpose of concealing or disguising the origin of the assets
shall be punished for the crime of money laundering by a maximum imprisonment of
20 (twenty) years and a fine of not more Rp.10.000.000.000,00 (ten billion dollars). "
2. The criminal offenses of money laundering passively imposed upon any person who
receives or menguasaipenempatan, transfer payments, grants, donations, storage,
exchange, or use of property that is known or reasonably suspected to be proceeds of
crime. It is also considered to be the same as money laundering. However, excluded
for reporting parties who carry out the reporting obligations as stipulated in this law
for this offense the perpetrator shall be punished by imprisonment of 5 (five) years
and a fine of not more Rp.1.000.000.000,00 (one billion dollars). This is provided for
in Article 5 paragraph (1) and (2) Money Laundering Law which states that:
(1) any person who receives or control placement, transfer payments, grants,
donations, storage, exchange, or use of property that is known or reasonably
suspected to be proceeds of crime referred to in Article 2 paragraph (1) shall be
punished with imprisonment 5 (five) years and a fine of not more
Rp.1.000.000.000,00 (one billion dollars).
(2) The provisions referred to in paragraph (1) does not apply to the reporting
party reporting obligations as stipulated in this law.
 66

3. In the TPPU Law, money laundering charged anyway for those who enjoy the fruits
of the crime of money laundering to any person who conceals or disguises the origin,
source location, designation, transfer rights, or actual ownership of assets that is
known or reasonably suspected to be proceeds of crime. For this offense the
perpetrator shall be punished by a maximum imprisonment of 20 (twenty) years and a
maximum fine of Rp.5.000.000.000,00 (five billion dollars). It is set in Article 4 of
the TPPU Law states that:
"Any person who conceals or disguises the origin, source, location,
designation, transfer rights, or actual ownership of assets that is known or reasonably
suspected to be proceeds of crime referred to in Article 2 paragraph (1) shall be
punished as a criminal offense money laundering with imprisonment of twenty (20)
years and a maximum fine of Rp.5.000.000.000,00 (five billion dollars)."

Predicate offenses (predicate crime) is a criminal offense that triggered the acts of
money laundering predicate offense (predicate crime) the shape pretty much, varied and
continues to grow. TPPU Law which criminalize the predicate offense, namely:
a. Corruption;
b. Bribery;
c. Narcotics;
d. Psychotropic;
e. Trafficking of labor;
f. The smuggling of migrants;
g. In the banking sector;
h. In the area of capital markets;
i. In the field of insurance;
j. Customs;
k. Excise;
l. Trafficking in persons;
m. illicit arms trade;
n. Terrorism;
o. Abduction;
p. Theft;
q. Embezzlement;
r. Fraud;
s. Counterfeit money;
t. Gambling;
u. Prostitution;
v. In the field of taxation;
w. In the forestry sector;
x. In the environmental field;
y. In the field of marine and fisheries; or
z. other criminal offenses punishable by imprisonment of four (4) years or more.

Meanwhile, property or money derived from the predicate offense (predicate crime)
whether committed in the territory of the Republic of Indonesia or outside the territory of the
Republic of Indonesia and the offense is also a crime under Indonesian law in the TPPU Law
is referred to as proceeds of crime. This is provided for in Article 2 paragraph (1) Money
Laundering Law which states that:
"(1) The proceeds of crime are property that is derived from the crime:
a. Corruption;
 67

b. Bribery;
c. Narcotics;
d. Psychotropic;
e. Trafficking of labor;
f. The smuggling of migrants;
g. In the banking sector;
h. In the area of capital markets;
i. In the field of insurance;
j. Customs;
k. Excise;
l. Trafficking in persons;
m. llicit arms trade;
n. Terrorism;
o. Abduction;
p. Theft;
q. Embezzlement;
r. Fraud;
s. Counterfeit money;
t. Gambling;
u. Prostitution;
v. In the field of taxation;
w. In the forestry sector;
x. In the environmental field;
y. In the field of marine and fisheries; or
z. other criminal offenses punishable by imprisonment of four (4) years or more, which
is carried out in the territory of the Republic of Indonesia or outside the territory of
the Republic of Indonesia and the offense is also a crime according to Indonesian law.

Act of receiving money transfers or payments for online gaming vouchers can be said
as pasifsebagaimana money laundering under Article 5, paragraph (1) of the TPPU. However,
to be able to categorize the payment of vouchers online game of "customer" as the proceeds
of crime should be met elements of "reasonably suspected" as described in the explanation of
Article 5, paragraph (1) Money Laundering Law that:
"What is meant by" reasonably suspected "is a condition that meets at least the
knowledge, desire, or purpose at the time of the transaction knew that suggests the existence
of a violation of law."
Therefore, if it can be guessed or knew of the payment vouchers online game is
indeed derived from the proceeds of criminal fraud then can be said to meet the elements of
breach of TPPU Law.
Republic of Indonesia forbids gambling in any form of action, therefore, the
Government of Indonesia to include a ban on Internet gambling conducted through. To
prevent and reduce the proliferation of gambling via the internet, the government put a ban on
gambling over the Internet will be in the legislation of Information and Electronic
Transaction (ITE) in 2008 under Chapter VI of the act which is prohibited under Article 27
(v) 2, which states that every person with intentionally and without right to distribute and or
transmitting and / or make accessible electronic information and / or electronic documents
that have a charge of gambling. Regarding criminal witnesses, stipulated in Article 45 which
states that any person who meets the elements referred to in Article 27 (1), paragraph (2),
auyat (3) or paragraph (4) shall be punished with imprisonment of six (6) years and / or a
maximum fine of Rp. 1,000,000,000.00 (one billion dollars)
 68

Several laws to address and follow up on online gambling activities above are as
follows:
1. Article 1 of Law No. 7 of 1974 On Gambling Control in Indonesia stated that, "any
kind of gambling is declared as a crime"
2. Code Penal (Penal Code) Article 303 Paragraph 1, which states that, "knowingly offer
or provide an opportunity for the public to play gambling or intentionally participated
in the company for it, with no matter whether to use the opportunity of the presence of
fulfillment of the requirements or something something ordinances punishable by a
maximum imprisonment of ten years ".
3. Gambling is done online on the internet are also provided for in Article 27 paragraph
(2) of Law No.11 of 2008 on Information and Electronic Transactions (ITE Law)
which states that, "Any person intentionally and without right to distribute and / or
transmitting and / or make accessible electronic information and / or electronic
documents that have a charge of gambling ".
4. Violation of Article 27 of the EIT Law pursuant to Article 43, paragraph 1, "he can be
arrested by police investigating officers or addition to the Indonesian National Police,
Civil Servants specified in the Government of the scope of duties and responsibilities
in the field of Information Technology and Electronic transactions are given special
authority as investigators as referred to in the Law on Criminal Proceedings, to
conduct criminal investigations in the field of Information Technology and Electronic
Transactions ".
5. Threats / criminal sanctions for violations of Article 27 paragraph (2), provided for in
Article 45 paragraph (1) of the EIT which states that, "any person who meets the
elements referred to in Article 27 paragraph (1), paragraph (2), paragraph (3), or
subsection (4) shall be punished with imprisonment of six (6) years and / or a fine of
Rp.1.000.000.000,00 (one billion dollars) ". Center for Financial Transaction Reports
and Analysis do not want to miss the emergence of various modes of money-
laundering transactions. Center for Financial Transaction Reports and Analysis
continued to make observations on the use of a new way of payment in the mode of
money laundering.

CONCLUSION AND SUGGESTION

Transactions of electronic commerce can not be separated from the role of computers
and devices. To conduct electronic commerce transactions are at least two parties, namely
buyers (consumers) and merchant.
In that regard, note the security and legal certainty in the use of information
technology, media, and communications in order to develop optimally. Therefore, there are
three approaches to provide security in cyber space, which is the approach the legal aspects,
technological, social, cultural, and ethical. To solve the security problems in the
implementation of the electronic system, the approach to the law because without the rule of
law, the issue of utilization of information technology is not optimal.
Universal principles is the principle that states any person who commits a crime can
be prosecuted criminal law outside the territory of Indonesia for the benefit of law for the
whole world. This principle is generally accepted view the criminal law, beyond the limits of
space and the region, which is protected here is the world's interest. Types of crimes that
included criminal according to this principle is very dangerous not only seen from Indonesia's
interests but also the interests of the world. Universally these crimes need to be prevented and
eradicated. Need a good cooperation with the authorities in the country to use national law
and international cooperation with international law enforcement gambling using online
games in cyberspace law.
 69

ACKNOWLEDGEMENT

Thanks to Prof. Isrok and Prof. Koesno on ideas - ideas, support during my study at UB to
keep writing and writing

REFERENCES
Edmon Makarim, Kompilasi Hukum Telematika, Jakarta, RadjaGrafingo Persada, 2004.
Kartini Kartono, Patologi Sosial, Jilid I, PT Raja Grafindo Persada, Jakarta, 2005
Mariam Darus Badrulzaman, E-Commerce Tinjauan dari Hukum Kontrak Indonesia, Hukum
Bisnis XII, 2011
PAF Lamintang, Delik-Delik Khusus, Kejahatan Melanggar Norma Kesusilaan dan Norma
Kepatutan, Jakarta, Sinar Grafika, 2009
Petrus Reinhard Golose, Perkembangan Cybercrime dan Upaya Penanggulangannya di
Indonesia Oleh Polri, Buliten Hukum Perbankan dan Kebanksentralan, Volume 4 Nomor 2,
Jakarta, Agustus 2006
Pompe, Sebastian (Editor), Ikhtisar Ketentuan Pencegahan dan Pemberantasan Tindak
Pidana Pencucian Uang dan Pendanaan Terorisme, Jakarta : The Indonesia Neteherlands
National Legal Reform Program, (NLRP.), 2011.

Kitab Undang-Undang Hukum Pidana

Undang-Undang Nomor 8 Tahun 2010 Tentang Pencegahan Dan Pemberantasan Tindak
Pidana Pencucian Uang
Undang-Undang No. 11 Tahun 2008 Tahun Informasi Transaksi dan Elektronik

http://cybercrimegroup.blogspot.com/2013/06/ancaman-hukuman-perjudian-online.html.
diakses 4 November 2014
http://digilib.unila.ac.id/1254/8/BAB%20II.pdf, diakses 6 November 2014

ABBREVIATIONS
ITE : Informasi dan Transaksi Elektronik
PPATK : Pusat Pelaporan dan Analisis Transaksi Keuangan
TPPU : Tindak Pidana Pencucian Uang

ITE : Information and Electronic Transactions

INTRAC : Center for Financial Transaction Reports and Analysis
TPPU : Money Laundering
Kemekominfo : Kementerian Komunikasi dan Infomasi
Perma : Peraturan Mahkamah Agung
 70

PORNOGRAPHY AND REGULATION MODEL: INDONESIA, MALAYSIA AND

CANADA PERSPECTIVE

Faizin Sulistio1

ABSTRACT
This study examines the settings of pornography from the perspective of Indonesia, Malaysia,
and Canada related to cyber pornography. This study briefly discusses several models of
regulation on cyber pornography and focus on the relevance of differences in regulation of
pornography and child pornography in the three countries. Results of this study are
Canada‟s criminal law only criminalize pornography crime related to child pornography and
sexual exploitation of Undue (excessive sexual exploitation) which can cause injury to the
partner. While Indonesia and Malaysia chose to criminalize in all pornography activities.
Besides state paradigm differences make a difference in the model settings selected.

Keyword: pornography, criminalization

BACKGROUND
The era of globalization is marked by the presence of the information society. the
utilization of internet technology in a variety of daily activities, in here conduct of business
and trade able to put the information as an economic commodity favorable2. These changes
was also triggered changes in interaction behavior for some people who master this
technology then spread gets other parts of human life into a new values are recognized and
living in the community (living law). These values will form a new legal instrument
instrument-related legal actions taken by someone.
It also looks at the rise of pornographic images and videos loaded as intercourse or
exploitation of the body that stimulate lust at first may be intended for personal collection,
but then uploaded to the internet which is become public domain. With some of these
conditions obviously there are some problems related to the proper setting and appropriate.
Moreover, cyber spaces make opportunities intersection between freedom of expression and
the moral values of society somewhere.
Internet in the second decade of the era of generation that can be accessed more easily
through a variety of features in a smartphone made materials with pornographic contents can
be easily founded and accessed. Peter David Goldberg in his thesis entitled "The Use Of The
Internet For Sexual Purposes", which is sourced Nua Internet Surveys from 2001 stated that
sex is the most popular topic on the internet (the most popular topic on the internet) 3. Mark
Griffiths also stated suggests that sex is the most widely searched topic on the internet (sex is
the most frequently searched for topic on the Internet) 4 . Fact, according to Catherine
MacKinnon dissemination of pornographic content in the cyber realm to make distributions
of pornografi entering a broader scope, deeper, worse, and more " Pornography in cyberspace
is pornography in society-just broader, deeper, worse, and more of it" 5 . American

1
Faculty of Law Brawijaya University, Email: faizin@ub.ac.id
2
Budi, AR, Legal Aspects of Customer Protection in the Internet payment system . Article in the Law
Journal . No. 16. p 59.
3
Mark Griffiths , Sex on the Internet: observations and implications for Internet sex addiction, Journal
of Sex Research , November 2001 , available at mark.griffiths @ ntu.ac.uk
4
Michael D. Mehta, In L. Pal and C. Alexander, Sex on the Net: Regulation and control of
pornography in the new wired world, available at http://policynut.usask.ca/pornet.htm. Accses on 8 September
2013.
5
Donny B.U, Pornografi diinternet, Juni, 2003, available at http://www.ictwatch.com. Accses on 8
September 2013
 71

Demographics Magazine in its report stated that the number of pornographic sites on the
internet first generation increased from 22,100 in 1997 to 280,300 in 2000 or jumped 10
times more within a period of three years. Ministry of Communications in his research in
2011 states that every second there were 30 thousand pages pornographic sites that accessed
by Internet users in Indonesia. Recorded until the end of 2009 there were 400 million porn
sites contained in the Internet pages.
The proliferation of porn sites is due to the financial benefits derived from this
business. According to Jupiter Research study in October 2002, the business income of
pornographic sites in the United States will reach U.S. $ 400 million in 2006, an increase of
more distant than in 2001 which was only U.S. $ 230 million. The researches show that
pornography has become a commodity that is beneficial to many parties.
The spread of pornography on the internet or known as cyber pornography is also a
serious problem faced by Indonesia as a developing country that also utilize this global
technological developments. Cyber pornography even show most of the cyber pornography
actor is an amateur actor in the category of school age. It can be identified from cyber
pornography titles that most indicate the origin of of the actors school.
The development of increasingly unsettling obviously require more attention from the
government to find a solution that fits perfectly in dealing with abuse of internet
pornography-related activities, whether done intentionally for the sake of commodification
and non-economic motives. Moreover, in a study of the ideological, issue of pornography is
not obscene activity that raises issues of sexuality lust alone, but also concerns the protection
of morality and culture of the culture and ideology of liberal freedom consciously or not
constructed by the media. From the description of the background above, the writer tries to
make the study based on the following matters:
1. How Pornography and cyberpornografi regulatory in perspective Criminal law in
Indonesia, Malaysia and Canada?
2. Is there a difference models are used and whether setting that causes the difference?

This research is more oriented policy approach legislation, especially in setting and
formulating actions criminalized, so this study used normative juridical approach, which is
based on legal materials.

Discussion
Regulatory Model Pornography in Indonesia, Malaysia and Canada
The reaction by some countries to tackle cyber crime, particularly against cyber
pornography are more reliant on the use of existing laws and established by the state (the
existing law). Though most of the state law that established just trying to analogize the
activity or action in the nature of cyber / cyber crime with actions or crimes in the real world.
For example, equating the act of cracking or hacking the act of vandalism in the real world
because they are both cause damage to property. This equation becomes less appropriate
when we study it from the criminal law, particularly in outlining and studying of the
following three pillars 1) adressaat norm (the subject of law); 2) strafbarfeit; 3) punishment.
In the context of the substantive theory of technology is no longer a neutral tool, but it
has spawned a new type of cultural system with a variety of cultural options without us
knowing it has influenced the way humans think and act. In fact it has formed a new
environment and way of life which is the substantive impact of the technology. Technological
development has exceeded the expectations of even the humans who make it as a symbol of
progress per se, but has been a part of human life and lifestyle. By the appropriate term used
to describe cyber crime or cyber pornography is the new wine without bottles not old wine in
new bottles.
 72

A. Regulatory Model Pornography in Indonesia

1. Setting pornography in the Criminal Code
In view of the law, especially criminal law categorized as pornography crimes
belonged offense against decency (zedelijkheid). The term morality is associated with the
customs associated with gender (sex) someone. Penal Code which is a substantive criminal
law has set the construction of a criminal offense against the law of nature pornography in
articles 282 and 283 are included in the crime of attacking a sense of decency. Sense of
morality is part of the courtesy that is protected by law. Criminal offenses against decency is
established by law to protect the interests of (rechtsbelang) against public decency sense
(sense of decency including)6. Protection against the norms of decency legal interest to do
given the regularity and order contained in society are not only formed by the rule of law
alone but also based on association norms are norms of decency. Politeness norms rests on
the purpose of maintaining equanimity in regard to every human sense of propriety in public
life socially.
Criminal Code as a parent setting the criminal law in Indonesia also outlines the
various criteria that can be categorized as an act of criminal acts and violations related to
pornography, namely7:
1. Pornography Crime (Article 282)
2. Crime pornography on minors (283)
3. Crime pornography in carrying out livelihood by repetition (Article 283 bis)
4. Violation singing songs and speeches whose content violates decency (Article 532)
5. Violation of pornography on teens (Article 533)
6. Pornography violations demonstrate a means to prevent pregnancy (Article 535)
7. Violation of pornography shows the means for an abortion (Article 535)

2. Regulatory Model pornography in Act No. 11 of 2008 on Information and

Electronic Transactions
Arrangements regarding pornography in Act ITE contained in article 27 (1) which
states that ―each person intentionally and without right to distribute and / or transmit and / or
make accessible electronic information and / or electronic documents that have a charge that
violates decency" .
Article 27 paragraph 1 of the ITE Law uses the word 'inaccessibility', which means
any person intentionally and without right to make accessible electronic information
pornographic contents or violation of decency will be exposed to criminal sanctions. For
example, someone has a website. When on the website that there is a link (relationship) to
other websites that contain pornographic images then that person can be charged with
disseminating pornography or directing others to access porn sites. Another example, one's
actions send a message via email to someone else and tell him where the porn sites that are
accessible. It also includes the actions of disseminating pornographic acts prohibited under
the ITE Law.
While criminal sanctions against violations of the act provided for in Article 27 (1)
provided for in article 45 (1) which states that every person who meets the elements referred
to in Article 27 paragraph (1), paragraph (2), paragraph (3), or paragraph (4) shall be
punished with imprisonment of six (6) years and / or a maximum fine of Rp1.000.000.000, 00
(one billion dollars) ".

6
Adami Chazawi, 2005, Criminal offenses on Decency , rajagrafindo Persada, Jakarta
7
Adami Chazawi, 2009, Criminal offenses Pornography, Putra Media Nusantara, Surabaya, p 78.
 73

In the EIT Law, a ban is set to change or manipulate electronic information so as if

the original looks. We often hear news reports about criminal activities of offenders such as
engineering photo artist photos, official, or other person who changed from no nude into nude
(as if the original photo). Activity manipulate the photo including the prohibited acts related
to the EIT Law article 35 that any person intentionally and without right or unlawful
manipulation of electronic information that is considered as if the data were authentic. For the
offender subject to criminal sanctions with imprisonment of twelve (12) years and / or a fine
of twelve (12) billion dollars.
Concept formulation and conviction of the criminal provisions of the Act ITE
somewhat different formulation of the Criminal Code. UU ITE split between acts that are
prohibited as well as legal subjects that perform criminal sanctions imposed. This separation
has drawbacks because the law makers can not assess the level (grade) and the seriousness of
the damages resulting from any act which is prohibited. For example, in article 27 (1), (2) and
(3) there is a gradation equate forming an impression of harm or the extent of damage and the
harm caused. In this context the law makers only see it in terms of the use and utilization of
technology.

3. Regulatory Model pornography in Act No. 44 of 2008 on Pornography

The development of technology, especially information and communications
technology capable of transforming the media being used as a pornographic object. If the
object of the Criminal Code are limited to three media, namely objects, text and images then
in Act No. 44 of 2008 on Pornography or Pornography Act (UUP) which is the response of
the legislators on the development of pornographic media provide more opportunities open
objects attached to the media pornography that has meaning that extends and abstract as
shown in the phrase "... or more messages". However UUP also provides some criteria
limitedly pornographic objects include images, sketches, illustrations, photographs, text,
voice, sound, moving pictures, animation, cartoons, conversation, gestures are attached to the
communication media or in public performances ( Article 1 number1 UUP).
While discouraged any kind of pornography is pornography that services provided by
the individual or corporation through live performances, cable television, terrestrial
television, radio, telephone, internet, and other electronic communication as well as
newspapers, magazines, and other printed matter. Criminal provisions of this Act set out in
Chapter VII ranging from Article 29 to Article 41. The prohibited act is to produce, create,
reproduce, copy, distribute, broadcast, importing, exporting, offering, reselling, renting /
providing pornography (P.29) ; provide pornography (p.30); lending / downloading
pornography (Article 31); play, show, harness, have, or storing pornographic products (P.32);
fund / facilitate action under Article 29 and 30 (Q33); intentionally or as permitted himself to
be the object / models that contain pornographic content (P.34); make other people as objects
/ models that contain pornographic content (p.35); exposing themselves or others in a show /
public depicting nudity, sexual exploitation, mating, or other pornographic contents (p.36);
involve children in activities and / or as the object of pornographic products / services
pornography (p.37); and encourage, entice, exploit, let, abuse of power, or force the child to
use the products or services of pornography (P. 38).
Viewing pornography to all settings which include the Criminal Code, Law on
Pornography ITE and it is seen that the model used Indonesia in response to the crime of
pornography in Indonesia is more concentrate on the legal aspects of the country, especially
due process models. Unfortunately due process characteristics of the model with the negative
model that always emphasizes formal power restriction and modification of the use of power,
where power is dominant in this model is the judicial power and always refer to the
constitution is not enough and is not suitable to solve cyber crimes (cyber pornography) are
 74

completed. Criminal Justice System in Indonesia makes no judicial power in the courts of
justice at the same time last wall. In fact, cyber crime can not be prevented through litigation
convoluted. This model when applied absolutely only be appropriate to provide legal
certainty, but not suitable to prevent crime, let alone the type of crime that has a high rate of
speed and mobility in general such as cyber crime and cyber pornography in particular.

B. Regulatory Model Pornography in Canada

Along with the increasing circulation of the magazine containing pornographic
content in Canada in the 1950s, has prompted the Canadian government to form and clicking
legally laws relating to criminal offenses pe n cabulan. established in 1959 legislation that
gave the assertion that a material or content is said to obscene if it has dominant traits such as
sexual exploitation, indecent, or if one or more perform the following activities, are do
cruelty and sexual violence. This definition is much more expansive than the per-made
doctrine contained obscene in America, which did not incorporate elements of crimes of
violence and cruelty or atrocity.
In the 1980s, the combined conservative and feminist groups, began pressuring
lawmakers to strengthen the legislation outlawing fornication with the perpetrators of
violence and pornography are required to lower the action. 1985 Report of a special law
enforcement who deal with pornography and prostitution, also called Fraser commission, has
been asked to parl e downloading pornography and prostitution in order to put in a criminal
act. In the mid 1980s, courts in Canada began to accommodate the approaches undertaken by
feminists.
Definition pornography law Canadian criminal, contained in section 163.1 Criminal
Code of Canada (penal code), which gives the definition of "child pornography." While'm
artery pornography featuring adult pornography governed by Article 163 through the
provision of "obscenity". In other words, unlike child pornography, pornographic material
involving adults is legal in Canada if it is not considered obscene. Prohibition of child
pornography in Canada gives the consequences of child pornography tend to be dark and
difficult to be detected than adult pornography, which is easily accessible in retail stores
through the sale and exchange of DVDs, videos, films, books and magazines, as well as in
theaters, on television and through the Internet.
In 1985, the Court Canadian High adopt a view who says that pornography has been
lowered and cause dehumanization clan women. In 1992, the Court also define that
something material can be referred to as per artificial obscene when in it contains elements of
violence sexual, lowering and cause occurrence dehumanization women, and including
depiction sex a boy-child. Law child pornography Canada bear resemblance with contained
in America, except that Canada also ban child pornography. Apparently, Canada has
attempted to protect citizens country of pornography and sex crime more better than America.
Result is pornography in Canada not spread and ekstentif in America. Even so, control
against pornography in Canada it is not challenged.
However the criminal justice system model that is in use in Canada, namely Crime
Control Model or reactive model is also less effective when used for the prevention of acts of
pornography, especially child pornography. Reactive strategy of crime control model can not
be implemented properly because after the crime was committed, the perpetrators easily
remove traces correspond to the general character of cyber crime. Moreover, the crime is
done in an electronic environment that facilitates offender eliminate or destroy evidence. For
example, police may trace and identify the location where the actors perform internet access
after investigating the log files, but when will be arrested sipelaku usually already gone or
even use the anonymity that is possible in virtual reality. Virtual reality also led to the use of
 75

formal activity (affirmative models) are less suitable to be applied in the prevention of cyber
pornography crimes.

C. Pornography Regulatory Model in Malaysia

Malaysia is a country in Southeast Asia that have attention to development of the
Internet and the legal consequences in the cyber realm. This is reinforced by the Malaysian
government's commitment to rapidly approved several laws related to Internet applications in
cyber space, such as the Computer Crime Act (Deed of Computer Crime) 1997, the
Communications and Multimedia Act (Deed Communications and Multimedia), 1998, and
the Digital Signature Act ( Digital Signature Deed) 1997. Digital Signature Act 1997 is the
first cyber law passed by the Parliament of Malaysia. The purpose of the law on electronic
signatures is to allow companies and consumers to use electronic signatures (instead of a
handwritten signature) bussiness transactions. Moreover in law and the Computer Crimes Act
1997 provides the legal support to the various activities such as unauthorized access and the
use of computers and information and expressed a variety of penalties for offenses
committed.
Subsequent legislation passed is Telemedicine Act 1997. Legislation is more on
practical guidelines governing medical and empowering technology in providing medical
services / consultations from remote locations through the use of electronic communication
facilities such as video conferencing. After it passed Communications and Multimedia Act
1998 which regulate the convergence of communications and multimedia industry and to
support the national policy established for the purpose of communications and multimedia
industry. In this legislation there are some restrictions associated with pornography.
Pornography in general settings set in the Malaysian penal code in particular Article
292 which states as follows:
Whoever;
a. sells, lets to rent, distribute, publicly exhibiting or in any manner puts into circulation,
or for purposes of sale, lease, distributed, publicly display or make be circulated, to its
manufacture or obscene book, pamphlet, paper, drawing, painting representation or
figure or any other obscene object;
b. importing, exporting or showing obscene object for any of the above purposes, or
knowing or having reason to believe that such object will be sold, leased, distributed
or publicly exhibited or in any manner put into circulation;
c. taking part in or receives profits from any business in the course of which he knows or
has reason to believe that such obscene object for any of the purposes aforesaid,
made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or
with any way put into circulation;
d. advertises or makes known in any manner that every person involved or ready to
engage in any act which is an offense under this section, or that any such obscene
object can be obtained from or through a person, or
e. offer, or perform any action efforts is an offense under this section, shall be punished
with imprisonment for a maximum period of up to three years, or fine, or with both.

Article 293
Whoever sell, lease, distribute, display or distribute to people under the age of twenty
years some of obscene objects that refer to the previous article, or offer or attempt to do so
will be punishable by imprisonment for ever five years, or with fine or both .
 76

Communications and Multimedia Act

211. Prohibition on provision of offensive content
1) No content applications service provider, or other person using a content applications
service, shall provide content the which is indecent, obscene, false, menacing, or
offensive in character with intent to annoy, abuse, threaten or harass any person.
2) A person who contravenes subsection (1) commits an offense and shall, on
conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment
for a term not exceeding one year or to both and shall also be liable to a further fine of
one thousand ringgit for every day or part of a day during the which the offense is
continued after conviction.

Commentary the models setting that used in Indonesia, Malaysia and Canada shows
that Indonesia is the most serious criminal offenses to combat pornography and cyber
pornography through penal facility. Indonesia tried to arrange overcoming pornography in
almost every aspect that allows pornography activity can be shown or seen by the crowds or
in public. It can be seen from the administrative regulations setting such as the Press Law, the
Broadcasting Law, Film Law and the EIT Law also contains provisions specifically the
criminal field, respectively. Even though considered insufficient by the Criminal Code and
existing laws, the legislators enact laws that specifically regulate pornography. Pornography
Act contains definitions and actions as well as criminal sanctions associated with
pornography. In terms of the substance of the arrangement referred Indonesian models prefer
decodification. This option is considered to be a rational choice to solve the crime of the
development is expanding rapidly while the Criminal Code as a book that set the substantive
criminal law is rarely changed or replaced. In terms of law enforcement in Indonesia with it‘s
KUHAP applying the Due Process Model is prioritize legal guarantees for suspects and law
enforcement should not be out of the constitutional purposes. In the context of conventional
pornography this model can work well, but in the face of reality is less cyber
countermeasures concept can be expected in the eradication of cyber pornography. This is
because the characteristics of the complex and intricate nature Siber that can not necessarily
be solved in the real world through the judicial process. Its meaning and setting strategy need
not merely to state law alone.

Regulatory Model Differences Cyber Pornography and Pornography

Each state has its own views and paradigms that are used to criminalize an act that is
considered reprehensible. Studies on Pornography regulatory model, can be studied from
several models, the models associated with the substance of the arrangement is established
and the model response typically associated with commonly used procedural law by the
countries concerned.
Of the few studies of pornography in Indonesia, Malaysia and Canada the difference
pornography regulatory model include:
a. Paradigm Differences Settings
Indonesia in the form of pornography regulation starts from the protection of morality,
decency and legal interests of protection of human dignity especially of women and children.
This we can look at the formation of preamble of Law No. 44 of 2008 on Pornography is
pornography based on mention that setting on God, respect for human dignity, diversity, rule
of law, non-discrimination, and the protection of citizens. This means that the provisions
stipulated in this Law are:
1. uphold moral values rooted in religious teachings;
 77

2. give a very clear provisions on limitations and restrictions that must be obeyed by
every citizen as well as determine the type of sanctions for those who violate them;
and
3. protect all citizens, especially women, children, and young people from bad
influences and the victim pornography.

It is different from the concept of built in Canada to legalize adult pornography and
just set the ban child pornography, either produced, spreading even see child pornography. So
the concept of paradigm built in protection of children. Legalized the adult pornography
reflects that the legislators of Canada argues that pornography is part of freedom of
expression should not be limited to criminal law. This paradigm does not assume that
morality is a necessary legal interests specifically protected by criminal law. It‘s looks even
wa Canada only prohibits pornography on ekstri m dehumanise women and causing injury to
the partner. Paradigm Malaysia in giving the settings pornography activity rests on the
Malaysian constitution makes Islam the official religion of the state, so that the activity which
is contrary to moral attack religion or morality derived from religion is not legal. Vivian case
of a blogger who posted pornographic images on his blog page month of Ramadan is
considered as an attack on the morality of Islam.

b. Differences Setting Law of the substance that is formulated

Model settings pornography related substance, usually dwell on some of the
following:
No. Substance Indonesia Canada Malaysia
1. Definition Indonesia has a clear Penal Code of Malaysia does
definition about Canada uses not have a clear
pornography in Article the term to definition of the
1 (1), namely produce, pornography. In
Pornography is publish and the Malaysian
pictures, sketches, distribute penal code or
illustrations, obscene thing Deed of
photographs, text, (something Communication
voice, sound, moving obscenity), and Multi
pictures, animation, criminal Media only
cartoons, conversation, comic (Comic uses the term
gestures, or other forms criminal) and obscene
of messages through Undue
various forms exploitation
communication media of sex to give
and / or public the equivalent
performances, which to what is
contains obscenity or referred to as
sexual exploitation that pornography
violate the moral norms
of society
2 Child Criminal Code and the Regulate Penal Code
Pornography Law on Pornography child regulate child
regulate child pornography pornography in
pornography in with children chapter 293.
chapters 11 and 12. under the age Minimum child
Minimum children of eighteen in this chapter
 78

under 18 years (Article under twenty

163.1. (1) years.
3 Punishment a. Involving Penalties for A maximum
Child children in every child punishment of
Pornography production of pornography 5 years
pornography is later than 5
punishable by years
pornogrfi adults plus
a third engagement.
b. Show or use the
services on child
pornography
sentence of 6
months more than 6
years

c. Differences Model Law Reform

Regarding the differences in the model law used to quickly setup pornographic
activities, Indonesia is trying to regulate the activity of various fields pornography
specifically with the legal umbrella pornography laws. As with related films, set in the
legislation film. Unfortunately Umbrella Pornography Act was made law in the very back so
that there is a problem of harmonization with other laws related to regulation of pornography.
For example, if there are media containing pornographic content, it would appear the debate
about what legal regime will be used, whether the Act No. 40 of 1999 on the Press which
contains only administrative sanctions and fines or use other laws such as the Penal Code
criminalizing nature, the Act ITE or Pornography Law. Although the substance of the
arrangement somehow related to pornography in Indonesia, including the most complete and
detailed outlines prohibited acts under penalty of serious crimes are categorized. Deficiencies
in setting pornography in Indonesia is only on the lack of criminalization of acts to see or
watch child pornography. Besides setting all law enforcement related to pornography
becomes somewhat constrained when state law is limited by territorial boundaries and when
faced with IT technologies become more individual and as a forum internum. The impact,
state law becomes brittle and have less power forcibly.
While the model setting pornography in Malaysia over the triangle models by giving
priority to setting more important and urgent. Malaysia just like the Common Law countries
are also covered in the regulation of pornography that indecision can restrain citizens with
freedom of expression guaranteed by the constitution. Therefore, in Malaysia there are only
two settings related to pornography are in the penal code and the Deed of Communication
and Multimedia. Even this arrangement makes it a crime less detail in pornografi. Moreover,
Pornography in Canada in the context of the use of the criminal law is only contained in the
penal code only. Setting Developments in Canada only on Pornography activities that can
cause injury and harm their partners.

Conclusion
The conclusion that can be drawn from the analysis carried out in the discussion are
as follows:
1. Regulatory Model pornography in Indonesia, Malaysia and Canada are closely linked
to the paradigm that was built in the culture of the people. Canada in the context of
the view that pornography has its own category. Categories of criminal law that
 79

criminalized in Canada only related to child pornography and sexual exploitation of

Undue (excessive sexual exploitation) which can cause injury to the partner . while
Indonesia and Malaysia chose to criminalize pornography in all activities. Canada
also uses Penal Code as criminal law is used to resolve the problem of pornography
with the Court still referring to the earlier decision. Malaysia prefer to make a deed of
Multimedia for communication and which also regulate pornography on the internet,
especially that done. In terms of actions Malaysia and Indonesia criminalize all
pornographic activity, both child pornography and adult pornography.
2. The difference between pornography regulatory model of Indonesia, Malaysia and
Canada can be viewed from three studies, the first of the paradigm used in
criminalizing. This paradigm of culture especially in establishing the meaning of
morality and decency. Secondly, in terms of the substance of the law that would be
criminalized and the third, a model of the desired formation. This means that each
state has a model that is considered ideal for finishing and overcoming pornography.

Bibliography
Adami Chazawi, 2005, Courtesy of the Crime , RajaGrafindo Persada, Jakarta.
-------------------- 2009, Pornography Crime , Media Nusantara Son, Surabaya.
Budi, AR, Legal Aspects of Customer Protection in the Internet payment system . 's Law
Journal . No. 16.
Mark Griffiths , Sex on the Internet: observations and implications for Internet sex
addiction, Journal of Sex Research , November, 2001 .
Donny BU, the internet pornography , June 20 0 3 http:// www.ictwatch.com .
Michael D. Mehta, In L. Pal and C. Alexander, Sex on the Net: Regulation and control of
pornography in the new wired world , http://policynut.usask.ca/pornet.htm .
Personal Abrams, Every 30 Seconds Thousand Porn Site in Access in Indonesia , 20
February 2011, http://tempo.co/read/news/2011/02/20/173314621/Tiap-Detik-30-Ribu-Situs-
Porno-di-Akses-di-Indonesia
 80

THE LEGAL LITERACY ON THE PREVENTION OF CYBER ATTACKS

IN INTERDISCIPLINARY APPROACH

Emmilia Rusdiana1

ABSTRACT
The cyber attacks that is high-tech crimes, including cyber-based terrorism,
espionage, computer intrusions, and major cyber fraud. To stay in front of current and
emerging trends. It needed the legal literacy, namely basic knowledge and skills that were
needed by all citizens and one of the foundations other life skills mastery and existence a
legal fictie that "everyone it was considered knew the law". The prevention on the danger of
cyber attacks with the essence of potentially the greatest threat to human factors,
stakeholders, users of information systems, internal users and eksternal users, and the
cybernetics theory is a term formerly used to describe and interdisciplinary approach to the
study of control and communication in animals, humans, machines and organizations, so the
interdisciplinary approach is applied in a discussion of telematics. Discussion that term of
telematics means an essence cyberspace itself as an electronic system was emergenced from
the result of the development and convergence of telecommunication, media and information.
Legal literacy in mitigating to a cyber attack the perspective of prevention in the study of
telematics that is into the cultural approach , the legal approach, the human right approach,
the economic approach and the political approach.
.
Keyword : telematic, prevention, interdisciplinary approach.

BACKGROUND
Development of mankind civilization and culture was started from the prehistoric
society, from prehistoric society transformed into an agrarian society, and changed from an
agrarian society transformed into an industrial society. then from an industrial society
transformed into information society, and from the information society transformed into
knowledge society. Knowledge society was known by existence products and services of
science and technology with the power of science and the essence of law is revitalization
religious life, law as guidance to the tolerate individual‘s freedom and globalization and
international law.
Discussion about globalization and international law, then we have known internet.
Internet started to Indonesia in 1993, and the Indonesian society started to use Internet as
entertainment. But this moment, the society activities has been using the internet facilities
more productive with increasing number rapidly every year. Although it has not used for
commercial purposes and commercial transactions, but it is predicted to increase with the
development and advancement of telecommunication, media and information technology.
This context should discuss about the cyber attacks, that is high-tech crimes, including
cyber-based terrorism, espionage, computer intrusions, and major cyber fraud. To stay in
front of current and emerging trends.
HarianTI.com 2 and the Statistic Central Agency (BPS) in collaboration with the
Association of Indonesian Internet Service Provider (APJII) recorded the growth rate of
Internet users in Indonesia in the end of 2013 has reached 71.19 million people. Results is
stated in a report entitled Profile of Indonesia Internet Industry at latest, the survey was
1
Lecturer in University State of Surabaya. E-mail: emmiliarusdiana@yahoo.co.id
2
http://harianti.com/survei-bps-jumlah-pengguna-internet-indonesia-tahun-2013-tembus-71-juta-orang/
diakses tanggal 10 Nopember 2014
 81

conducted in 78 districts/cities in 33 provinces of Indonesia. The amount is meant to grow 13

percent compared to the end of 2012 notes that as many as 63 million people become internet
penetration in Indonesia is about 28 percent of the total population of Indonesia.
Here is the pattern of Internet usage in Indonesia.

A society needs an information in relation to the ability, they criticize the content of
media and have the understanding of reality that the terms such media literacy3. Media
literacy has four skills, the ability to access media, analyzing of media content with the
context, criticizing media, and write their own messages in various forms and types of media.
While the information literacy and telecommunication literacy has not been discussed widely.
Media literacy requires a legal role in the realization of individual rights in order to
achieve the community interests, so legal approach is required when the media users master
these skills, so the society should obey rules and norms guided the legal principle. The
positive law in indonesia has known the media rules, printed media are law Number 40 Year
1999 concerning on the press, an electronic media is law number 32 year 2002 concerning
broadcasting, the media film is law Number 8 Year 1992 concerning film, while the existence
of system and telecommunication networks is law number 36 year 1999 concerning
telecommunication.
Formulation of law Number 11 Year 2008 concerning Information and Electronic
Transactions. This act is motivated by emergenced of cyber law or the law telematics or
information technology law which embodies the convergence of telecommunications law,
media law and information law. The development in a new types of telecommunication
services which is combination of all type data that marked the emergence of the internet, and
discussion of telecommunications, media, and information were known as telematics.

3
http://habibiecenter.or.id/detilurl/id/188/discussion/literasi.media
 82

Legal literacy is related to literacy in the law study. Legal literacy means the skill and
basic knowledge were needed by all citizen and one of foundations other life skills mastery.
Legal literacy is an important role into increasing understanding of law, more particularly, to
defend their rights in the law. One of legal literacy described the basic knowledge on the
prevention and mitigation were related to the study of telematics.

DISCUSSION
The essence of law
The law has a wide range of definitions so that the jurist agreement does not agree to
provide a legal definition. Several reasons were related to be difficult a legal definition
which as follows:
a. The form and essence of legal is abstract. According to Krabbe4, that guided a legal
sense and only gained power from the correspondence with the ilegal sense of
individual, the rule law should as the society norms, so society mastered and leaned
on the together law belief. The existence of norms is colorful, as much the law belief
as much a norm. the Uniformity of legal norms is more important than the rule
substance, so the our legal awareness provide the highest value to the unity of a legal
norm to achieve a legal purpose that govern society.
b. Aspects and dimensions were wide. Ubi societas ibi ius. which means that where
there are society so there is the law. Human was meant as social beings that need
others and an effort to maintain life. In human social life, there are two aspects5,
namely physical and existential aspects. The physical aspect refers to human essence
as a creature that live bodily. The existential aspect relates to a different existence
with other human beings.
c. Comprehension and perception differences. Discussion of perception depends on the
discipline of science. While understanding of the law should comprehensive (holistic)
avoid a mistaken of discussion because understood partially.

There is not legal definition of a standard formulation while the essence of law is :
1) legal principles is the foundation principle of the most extensive for the emergence of
a rule , or the reasons for the emergence a rule of law or the ratio legis6.
2) legal norm or normative norm or code of conduct or guidance of conducts or
guideline of behaviors is a set of rules about how humans, both as individuals and as
society member should behave. Normative function support of people's life to
achieve his legal purpose7.
3) The legal norms are realized in a rule. Based on the rule of law into written and
unwritten. The rule of law is just only symbols used by the rule of law show itself.
The rule expressed completely what was intended by legal norms8.

The study of telematics

Cyber was actually a term the existence of electrical wire that is used for appropriate
physical law applicable to the electrical current in the wire and is not the law grows in the
medium cyberspace. But if we discuss cyberspace means talking about hallucinations a
virtual style, while the term telematics means essence cyberspace itself as an electronic
system that was born from the results of the development and convergence of

4
L.J. Van Apeldoorn. 2001. Pengantar Ilmu Hukum. Jakarta. Pradnya Paramita. Hal. 439.
5
Peter Mahmud Marzuki, 2011. Pengantar Ilmu Hukum. Jakarta. Prenada Media Group. Hal. 42.
6
Paton G.W. 1964. A Text Book of Jurisprudence. London. Oxford University Press.
7
Paton G.W. 1964. A Text Book Of Jurisprudence. London. Oxford University Press.
8
Rahardjo, Satjipto. 2000. Ilmu Hukum. Bandung. Citra Aditya Bakti. Hal. 72.
 83

telecommunications, media and information itself as well suited to be used to conduct a study
of law.
Information is essentially derived from the data (that include all the fact that are
represented as an input in the form of text, numeric, images, voices and sensors that have
been processed and has changed shape or the value advance suited with its context.

INFORMATION LAW
(TELEMATICS LAW)

INFORMATION LAW MEDIA LAW

(COMPUTER LAW)

TELECOMMUNICATION
LAW

Here are the differences of media and telecommunication

The differences
The pattern of relationship
The communication link
the pattern of delivery
destination information
Ethics
Source: adapted from kompilasi hukum telematika (Edmond Makarim).
Media telecommunication
Dissemination of Dissemination of
information from one point information from one point
to many point (mass to one point (private
communication) communication)
One way communication Two way communication
Depending on of programs does not depend on the
was delivered by the sender programs was delivered by
information the sender information
(unindirectional)
Basically directed to the Directed to a person
public
keep the public interest maintain confidentiality of
information

Communication always need media as an intermediary so the existence of media in

the communication was frequently related to a term of communication media. Telematics
law is a law into a development of cyber convergency formerly in the operation a electronic
system, that is connected by internet (cyberspace) or that is either. In the practical,
cyberspace was known by four component9, that is content, computing communication and
community.

9
Edmond Makarim. 2003. Kompilasi Hukum Telematika, Jakarta. Rajagrafindo Persada. Hal. 8.
 84

a. Content is existence content or substance from data and or information itself that is
input and output from the operation of the information system was said to the public,
includes all the in the operation of electronic system databases also was
communicated by data messages.
b. Computing, the existence of information processing systems that computer based
information system that is computer network.
c. Communication, the existence communication system also the operation from
interconnection and interoperational between information system or computer
network and also the service operation and telecommunication network.
d. Community, that is existence a community and a community system that intelectual
actor (brainware), into a position as businessman, professional support or as user into
that sistem

It needs information about cyber crime as freud into cyber law. and the definition of
Cyber crime is ―… refers to any crime that can be committed by means of a computer system
or network, in a computer system or network or against a computer system or network. Two
subcategories of cybercrime exist :
1) Cybercrime in a narrow sense (―computer crime‖): any illegal behavior directed by
means of electronic operations that targets the security of computer systems and the
data processed by them;
2) Cybercrime in a broader sense (―computer-related crime‖): any illegal behavior
committed by means of, or in relation to, a computer system or network, including
such crimes as illegal possession, offering or distributing information by means of a
computer system or network10‖.

Prevention of cyber attacks in the study of telematics in interdisciplinary approach

The mitigation from the perspective of prevention on the potentially emergence Freud
precedence over the prevention from the perspective of repressive, because the perspective of
prevention can reduce both material and immaterial losses include losses to restore
community trust in the existing information system.
Theory11 is a term formerly uset to describe from interdisciplinary approach to the
study of control and communication in animals, humans, machines and organizations. The
word cybernetics was coined by US matematician norbers wiener in 1946. The original
concept grew out of wiener‘s and his colleague Jullian‘s Bigelow‘s work on anticraft guns
during world war II, which utilized feedback (encyclopedia of knowledge). Refers to the
cybernetics theory, so the interdisciplinary approach is applied in a discussion of telematics.
Here are prevention of cyber attacks in the study of telematics.

The cultural approach

1. Increasing of literacy in order to realize an information society. Because losing and
winning of a nation in the trade war of information and the communication depends
on extent to the nation's efforts to motivate a society into an information society to the
knowledge society. Characteristics of a knowledge society is a society that has
received adequate education and have awareness of the importance of knowledge in
order to realize the national character building.

10
Background Paper Konggres Pbb X For Workshop On Crimes Related To The Computer Network
Document A/Conf.187/10, 32-2-2000. Hal. 3 adopted from the book of Barda Nawawi Arief. 2006. Tindak
Pidana Mayantara. Jakarta. Raja Grafindo Persada Hal. 8.
11
Edmond Makarim. Op. Cit. Hal. 23.
 85

2. The providing of educational information emphasis on the use of Internet and the
sophistication of product technology or devices while with efforts to master that
understand deeply especially into the socialization of security awareness

The legal approach.

1. Harmonize all interest of national and of the rights and obligations relating to the
world of information and communication based on national law system.
2. Directing approach to which human actors intellectual than technological approach in
the prevention of cybercrime as a potential treat. In scope of cyberspace, the legal
subject was related to be classified into seller, producer, developer or provider, end
users or costumer.
3. The manifestation of an information ethics12 that is privacy, accuracy, property and
accessibility. Privacy indicates that information as a result of the output is intended to
respond to the needs of the user information. Property means the information become
right of a manager or the user's system information. In the interest of privacy, honor
and reputation correspondence and then ideally the public interest to protect the
interests of the individual, the accuracy of information and communication is
determined by the extent to the reliability and impartiality of the media any form of
media is also the presence of the media and communications.
4. The providing of information related to the the legal arrangements for the information
and electronic transactions was related to the legal fiction, but a legal fiction is a form
of the legal pretense and a form of the legalism avoidance, because it is used to hide
the change and is the opposite of the principle of publicity. But when the law number
11 tahun 2008 concerning information and electronic transaction has been enacted
and in the State Gazette number 58 year 2008 so the society is bound by law and
deemed to know about the Law.
5. The providing of information about legal issues related to the globalization of
information (emerging global legal issues13) among others privacy, criminal action,
contract and tort liability, proprietary rights in information ownership of and access to
information, an emerging legal right to communicate, concept of territoriality. So
society must learn to understand cybercrime.
6. Increased the public role gives good feedback on good of legal information. The
public role14 is needed because it limited the ability of the law and the public has had
autonomous power to protect and organize themselves. so the public role can be
correlated for increasing public awareness as a law enforcement effort. The existence
of law as the rule of law is directly proportional to the understanding of law and legal
awareness of society itself toward the law that are applicable information. To reduce
the gap between the rule of law with social behavior.

The economic approach.

1. Increasing national resources in the context of Globalization and international law
especially in the international trade constellation of national resources was begun the
education to improve the quantity and quality of human resources qualified and
cultured. After the manifestation of a national society has national character building
will perform the society role in international trade.

12
Edmond Makarim, op.cit. hal. 30
13
Branscomb. Anne W. Toward A Last of Global Communication Network. New York & London,
Longman, 1986. Page 1 was adopted from the book of Edmond Makarim. op. cit. hal. 35
14
Satjipto Rahardjo. 2007. Membedah Hukum Progresif. Jakarta. Kompas. Hal 80,
 86

2. Improvement government's role in determining which economic coordination of

goods and services. This is described in four roles 15 or forms of government
involvement in the economy, which the direction of the economy, regulation of
private economic activity, income redistribution and procurement of goods and
services of public interest. The information devices more sophisticated and able and
meet the demands of all levels of society are goods and services to the public interest.
So the public purchasing power will increase as manifestation of the knowledge
society.
3. Manifestation of computerized information systems with improving the society role
performed a large investment. So the public can invest into improving security,
convenience and reliability in an effort to supervise the law enforcement. Discussion
of investment governed by the Law Number 25 year 2007 concerning on investment.

The human right approach.

The manifestation of the knowledge society that is strengthening internet
infrastructure in the regions to equal access to the public information as the realization of
human rights for the provision of information and communication. In Undang-Undang Dasar
Negara Republik Indonesia Tahun 1945 Section 28 F which reads "every person has the right
to communicate and obstain information for to develop personal and social environment, and
the right to looking for, obtain, possess, keep, process and express information by using all
available channels ". Article 28F UUDNRI realized in the law number 32 year 2002
concerning on Broadcasting and the Law number 14 year 2008 concerning on freedom of
public information.

The political approach

Improvement and arrangement the infrastructure providing of information systems to
the national information infrastructure are focused and integrated by the government and
private sectors. In the theory of factors 16 that influence the policy processing, namely
environmental, the perception of environmental policy makers, government activities
regarding policies and the community activities about the policy. The government activities
in the arrangement a national information system will affect society activities relating to the
communication of information that will be most beneficial to all sectors of life.

CONCLUSION
A term of telematics means a essence cyberspace itself as an electronic system that
was emergenced from the result of the development and convergence of telecommunication,
media and information itself suited to conduct a study of law and the cybernetics theory is a
term formerly uset to describe and interdisciplinary approach to the study of control and
communication in animals, humans, machines and organizations, so the interdisciplinary
approach is applied in a discussion of telematics.
Legal literacy in mitigating to a cyber attack the perspective of prevention in the study
of telematics that is in the cultural approach, the legal approach, the human right approach,
the economic approach and the political approach.

15
Ramlan Surbakti. op. cit. hal. 212.
16
Ramdal B Ripley. 1986. Policy Analysis In Politia Science. Chicago. Nelson Hall Publisher. Page
34. adopted from the book of Ramlan Surbakti. 1999. Memahami Ilmu Politik. Jakata. Grasindo.
 87

REFERENCES
Background Paper Konggres PBB X for Workshop on Crimes Related To The Computer
Network Document A/CONF.187/10, 32-2-2000 was adopted by Barda Nawawi Arief.
Tindak Pidana Mayantara. Jakarta. Raja Grafindo Persada.
Branscomb. Anne W. Toward A Las Of Lobal Communication Netwrok. New York &
London, Longman, 1986. Page 1 was adopted by Edmond Makarim. 2003. Kompilasi
Hukum Telematika, Jakarta. Rajagrafindo Persada.
Edmond Makarim. 2003. Kompilasi Hukum Telematika, Jakarta. Rajagrafindo Persada. .
Lon L. Fuller. Legal Fiction. 1967 was adopted by Lawrence M. Friedman. 2009. Sistem
Hukum Perspekrif Ilmu Sosial. Bandung. Nusa Media.
L.J. Van Apeldoorn. 2001. Pengantar Ilmu Hukum. Jakarta. Pradnya Paramita.
Paton G.W. 1964. A Text Book Of Jurisprudence. London. Oxford University Press.
Peter Mahmud Marzuki, 2011. Pengantar Ilmu Hukum. Jakarta. Prenada Media Group.
Rahardjo, Satjipto. 2000. Ilmu Hukum. Bandung. Citra Aditya Bakti.
Ramdal B Ripley. 1986. Policy Analysis In Politia Science. Chicago. Nelson Hall
Publisher was adopted by Ramlan Surbakti. 1999. Memahami Ilmu Politik. Jakata.
Grasindo.
Satjipto Rahardjo. 2007. Membedah Hukum Progresif. Jakarta. Kompas.
http://harianti.com/survei-bps-jumlah-pengguna-internet-indonesia-tahun-2013-tembus-71-
juta-orang/ diakses tanggal 10 Nopember 2014
http://habibiecenter.or.id/detilurl/id/188/discussion/literasi.media diakses tanggal 10
Nopember 2014.
 88

PLENARY SESSION

“Introducing Legal Framework and Case Study of Cyber Crime in Indonesia”

Presenters:

Henny Saida Hora

Reni Widyastuti
Milda Istiqomah & Kristiyanto
 89

EVIDENCE OF CRIMINAL FRAUD OVER THE INTERNET

Henny Saida Flora, SH. M.Hum.,M.Kn1

Abstract
Electronic technologies such as the use of computers and the Internet as a means of
information has become a visible community needs to do a variety of activities in the
association of his life in the midst of society, even the technology has often been said by some
people as a medium without boundaries (virtual world). As an effect of the increasing number
of computers connected to the Internet network, the more open the possibility of criminal
offenses committed via the Internet or the so-called cyber crime (cybercrime). The misuse of
the Internet that harm the interests of other parties has become a social reality in the life of
modern society as a result of advances in science and technology are no longer inevitable for
nations that have been familiar with the culture of technology.
Criminal acts of fraud via the Internet is a common crime that uses the Internet as a
means to commit fraud. Criminal fraud through the internet is a lot going on in terms of sales
of goods over the internet. Shopping using the internet in addition to efficient technology
services can also reduce costs. This has led to criminal fraud over the internet. The modus
operandi of the perpetrators often happens is advertise an item for sale via the internet or a
website that provides a means to sell goods or by way of auction. If anyone is interested to
buy it there will be a transaction between the seller (the perpetrators) with the prospective
buyer (victim), once approved, the buyer agreed to send the money to buy the goods on offer
can already be guessed then, that the goods offered will never be sent by the seller because
the item does not exist.
The process of proving the crime of fraud via the internet and are in the form of an
electronic document or electronic information and any electronic document or electronic
information that must be printed out, and the data already in print outs of electronic
documents are presented as evidence in court.

Keywords: Evidence, Crime Fraud, Internet

Introduction
Electronic technology such as the use of computers and the Internet as a means of
information has become a visible community needs to do a variety of activities in the
association of his life in the midst of society, even the technology is often said by some
people as a medium without borders (cyberspace). It is based on the knowledge that the
dimension of space, the time, the relationship among legal subjects that have been conducted
with the real world have been easily penetrated by information technology. Such facts can be
known, for example, freedom and then talk (media teleconference), transparency and
exchange of information within the borders of a country, and a free trade or transactions
through electronic media. In fact the development of information technology such
information should be realized to have an impact for the existing law and require further
adjustment settings, so the use of technology as a means of global telecommunications in the
association of national and international community remain in the foundation (legal) right
law.
On the other hand, in practice, the development of information technology has been
misused by some particular person as a medium to commit crime. The misuse of the Internet
1
Law Faculty, University Of Katholic Santo Thomas, Medan, Indonesia, Email:
hennysaida@yahoo.com
 90

that harm the interests of other parties has become a social reality in the life of modern
society as a result of advances in science and technology are unavoidable for the nations that
have been familiar with the culture of technology (the cultural technology).
The impact of the development of science and technology that has been misused as a
means of crime has become very important for the anticipated legal policy, so that cyber
crime (cybercrime) that can occur with mitigation efforts including the criminal law in this
case is about the proof system. In the case of crime in cyberspace (cybercrime), the judge in
the hearing and hear the case must be observant and carefully assess the evidence submitted
by the prosecutor, because the purpose of the law of criminal procedure is to determine the
truth or the search for material. To achieve these objectives, the judicial executor component
tied to evidence, proof systems and verification process set out in the legislation in force.
Verification system adopted by the Code of Criminal Procedure and the Code of Criminal
Procedure Article 183 should be applied and implemented in check and respect of crimes in
cyberspace, should be able to consider the evidence submitted to the trial and based on the
evidence that the judge believes that the defendant guilty of being confident the act of doing..
The judge also observe the principle of minimum evidentiary belief in the guilt of the accused
to a useful guarantee the upholding of truth, justice and the rule of law. 2
In the theory of proof is four (4) proof system, namely the conviction in-time system
verification, system verification raisonee conviction, positive verification system and the
system of negative evidence. 3 Verification system adopted by the Code of Criminal
Procedure is negative verification system according to the law. This means that in terms of
proving to do research, of sufficient reason and supported by evidence prescribed by law (at
least two items of evidence) and supported by the judge's conviction. 4
In Indonesia, measures to combat fraud and anticipation over the internet and other
crimes are still not done optimally, as was done by the developed countries. This is because
often the enforcement from the police, prosecutors until judges clash in processing the cases
of fraud over the internet, especially concerning proof (evidence) provided for in Article 184
Criminal Procedure Code states that evidence that is valid witness testimony, expert
testimony, a letter instructions and information from the defendant, 5 while the crimes
committed in cyberspace, the parties do not meet each other and do not know each other.
Law No. 11 of 2008 on Information and Electronic Transactions (ITE) set about proving the
ITE Law Article 44 and in Article 28 paragraph (1) set of criminal fraud by electronic means
decisive, "any person intentionally and without right spreading false news and misleading
resulting in a loss of consumer electronic transactions. "criminal provisions set forth in
Article 45 paragraph (2) which provides," any person who meets the elements in Article 28
paragraph (1) or subsection (2) shall be punished with imprisonment 6 (six) years and a
maximum fine of Rp. 1.000.000.000, - (one billion dollars). "

Crime Fraud Over Internet As Cybercrime

As an effect of the increasing number of computers connected to the Internet network,
the more open the possibility of criminal offenses committed via the Internet or the so-called
cyber crime (cybercrime). Cybercrime is a further development of computer crime. Broadly
speaking, cybercrime is divided into two categories:
1. The common crime that makes the computer as a means of (aid) to commit a crime

2
http://www.google.com., Aspek Hukum Pembuktian Dalam Tindak Pidana Penipuan dengan Telepon
Seluler, Tanggal 19 Oktober 2004.
3
Andi Sofyan dan Abd. Asis, 2014, Hukum Acara Pidana Suatu Pengantar, Prenada Media Group
Jakarta, hlm.232
4
Ibid, hlm. 4.
5
Ibid, hlm. 237
 91

2. Crime is the target or the target is the computer facilities and information
communication technology systems. 6
The computer is not only a stand-alone computer or often referred to as a stand alone
but also the computers that are connected to the Internet network. Crimes using computer
facilities directly or indirectly, the computer plays a role in the process of another criminal
offense. In these crimes, an increase in the crime work of the original using ordinary
equipment, has now begun to take advantage of information technology, among others:
1. Fraud by offering goods, services or share on the internet.
2. Fraudulent make payment using a credit card number of other people on the internet
3. Fraud and blackmail, using e-mail facilities
4. Threaten or insult to someone using e-mail
5. Pornography in the media, including the internet service offer and sale of
pornographic VCD sex on the internet. 7
Crimes that target or the target is the computer facilities and systems of information
communication technology, using computers and information communication technology
systems,, using the computer as a target or a victim that:
1. deface or change the look of the website
2. Ddos Attack is an attack and hijack other people's passwords
3. Sniffing or sniff and hijack other people's passwords
4. Hacking, Cracking and Preaking
5. Create and deploy a program that is to undermine the (malicious code) in the form of
worms, Trojan horses and so on.
6. Misuse of licensing of VoIP (Voice over Internet Protocol)
7. Dispute or crime involving Domain (Naming website address).

Based on the criteria of crime, internet crime can be differentiated in a state of evil
that had been there with using a computer and also the evil that exists after the computer.
Crimes that had been there as fraud, defamation, pornography and others, have been able to
be done using a computer or the internet, while crime may be said to exist when the computer
such as the spread of Ddos attacks, viruses, worms, Hacking, Prealing and Phishing.

Forms and The Character of The Offense by Means of The Internet

In general there are some crimes that are closely related to the use of the main
computer-based technology and the internet, among others:
a. Unauthorized Access to Computer and Service, is a crime committed by entering or
breaking into a computer network system illegally, without a permit or without the
knowledge of the owner of the computer network system that is entered. Usually
criminals (hackers) do so for the purpose of sabotage or theft of important and
confidential information. But some are doing it just because they feel challenged to
try his skills and then penetrate a system that has a high level of protection.
b. Illegal Contens, is a crime to enter data or information to the internet about
something that is untrue, unethical and may be illegal or disturbing public order.
c. Data Forgery is a crime by falsifying data in documents saved as scriptless
documents over the internet. These crimes are usually directed at documents e-
commerce by making as if going on a typo that ultimately benefit the offender.
d. Cyber Espionage, is crime who use the Internet to conduct espionage against the
other party to enter the computer network system (computer network system) the
6
Widodo,2013, Aspek Hukum Pidana Kejahatan Mayantara, Aswaja Pressindo, Yogyakarta, hlm. 7
7
Reda Mathovani, 2006, Problematika dan Solusi Penanganan Kejahatan Cyber di Indonesia, Malibu,
Jakarta, hlm. 59-60
 92

target. These crimes are usually directed against the business rivals of documents or
data stored in a computerized importance.
e. Cyber Sabotage and Exortyion, is a crime committed by creating a disturbance,
damage, or destruction of the data, computer programs or computer network systems
that are connected to the Internet. Crime is usually done by inserting a logic bomb, a
computer virus, or a particular program, so data, computer programs or computer
network can not be used or is not running as it should. In some cases after it happens,
the perpetrators of the crime to the victim voluntered to correct the data, a computer
program or system that has sabotaged the network.
f. Offense Against Intellectual Property, is a crime directed against intellectual property
rights of any party on the Internet, such as impersonation display on a web page of a
site belonging to another person illegally, broadcasting the information on the internet
which turned out to be the secret with others, and so on .
g. Ifrigements of Privacy, is a crime directed against a person information which is very
private and confidential. These crimes are usually directed against an individual's
personal information stored in the form of computerized personal data which, if
known by others it could materially harm the victim or immaterial, such as credit card
number, ATM PIN number, and so on.
h. Phishing, a cyber crime which are designed to spit out people to provide their
personal data to the site prepared by the perpetrator. The site is made such that it
resembles a site owned by a particular company. The victim then asked for personal
information on the fake site. Personal data can be user like idea, password, pin and so
on. Personal data is then used by the offender to the things that can harm the victim
i. Carding, fraud is a crime to use a credit card (Credit Card Fraud). Fraud is done by
stealing data credit card numbers of others, and then use it for internet transactions.
Carding can be done without having any knowledge in programming and network
security systems. The carding actors can do this by using a spoofing program which is
installed on many websites on the internet. By using a carder spoofing programs can
penetrate the computer networks that are conducting transactions via credit card. The
transaction is then recorded and entered into the email-carder. Furthermore, the credit
card number used by the carder to transaction on the internet.8

Based on the records of the National Criminal Intelligence Service (NCIS), in the
United Kingdom there are thirteen kinds of forms of cybercrime are:
a. Recreational Hackers, is a crime committed by novice level netter for fun try the
mainstay of the lack of security or data security system of a company. The purpose of
this fad by the offender intended to have an impact entertainment but cyber crime that
directly or indirectly harm others.
b. Criminal Minded Cracker or Hackers, an offender who usually have the motivation
for financial gain, sabotage and destruction of the victim party data.
c. Political Hackers, the political activity of the destroying hundreds of web sites to
campaign for certain programs even less used to attach messages to discredit political
opponents.
d. Denial of Service Attack, an attack that aims to tie up the system with interfere access
from legitimate users of Internet services. The tactic used is to send or to flood the
web with garbage data websites unnecessary for the intended person.
e. Insiders (internal) Hackers, which is usually done by people within the company's
own

8
http://www.ubb.ac.id. Modus Operandi Cybercrime, tanggal Agustus 2009
 93

f. Viruses, is a bully (malicious) software by distributing a virus that can be transmitted

through the Internet when the application will be accessed by the user.
g. Piracy, is piracy of software or computer software
h. Fraud, is a kind of manipulation of financial information with the intention to profit as
much as possible.
i. Gambling, a gambling space world. From these gambling activities, money generated
can be rotated to a country that is a tax haven such as cymen the island which is also a
haven for the perpetrators of money laundring.
j. Pornography and Paedophilia, pornography is a crime that exploiting children through
news groups and chat rooms.
k. Cyber Stalking, is any form of unsolicited email submissions by or e-mail users who
frequently use a folder, and not infrequently with coercion.
l. Hate Sites, a site often used by hackers to attack each other and threw comments that
are rude and vulgar managed by extremists against parties that are not his favorite.
m. Criminal Communications, a communication via the Internet is used as a tool
powerful enough to do the crime.9

Based on the literature and practice, cybercrime has a distinctive character compared
to conventional crime, among others:
1. The act is done illegally without right or unethical is going on in the room or area of
the virtual (cyberspace) that can not be ascertained where applicable jurisdiction
against him.
2. The act is done by using any equipment that can be connected to the internet
3. These actions resulted in the loss of material and immaterial (time, value, service,
money, self-esteem, dignity, confidentiality of information) which tend to be larger
than conventional crime.
4. The culprit is the person who mastered the use of the Internet and its applications.
5. These actions often are transnational or cross borders.10

Crime Fraud Evicende Process Over Internet

Legal issues is a matter of evidence in court. Therefore, the role and process of proof
in a court of law is very important. Many legal history shows because misjudged the evidence
such as witness to lie, then the party who is actually innocent should be in prison for being
found guilty by the judge. Instead many as one in assessing the evidence, or the evidence is
not strong enough, people actually guilty of a crime, can be acquitted by the court. Thus, to
avoid or at least minimize judicial decisions are misguided, accuracy in assessing the
evidence in court are expected, either in criminal cases and in civil cases.
Proof system in the Indonesian criminal procedure law is known as "negative system
(negatief wettelijk bewijsleer), which is sought by the judge is a material truth.‖ According to
this system the judge may only convict if the least evidence that the law has determined that
there are (two items of evidence) coupled with the confidence gained from the presence of
the judge on the evidence of it.
Valid evidence according to the Law of Information and Electronic Transaction are set out in
Article 44, namely:
1. Evidence as referred to in the statutory provisions and
2. Evidence of other form of electronic information and / or electronic documents

9
http:///www. google. com, Bentuk-bentuk Cybercrime Menurut National Criminal Intelligence
Service (NCIS), Tanggal 25 September 2009, hlm. 4.
10
http://www.google. com. Karakter Cybercrime, Tanggal 30 April 2010
 94

Article 1 point 1 ITE Law specifies that electronic information is one or a set of
electronic data, including but not limited to text, sound, images, maps, plans, photographs,
electronic data interchange (EDI), electronic mail (electronic mail), telegram, telex, telecopy
or the like, letters, signs, figures, code, access, symbols or perforations that have been
processed to mean or be understood by those who are able to understand it.
Article 1 point 4 of the ITE Law determines that the evidence elektronic document is
any electronic information that is created, transmitted, sent, received, or stored in the form of
analog, digital, electromagnetic, optical, or the like that can be displayed, and / or heard
through pictures, maps, photo design, or the like letters, signs, numbers, codes, access codes,
symbols, or perforations having meaning or sense or be understood by those who are able to
understand it.
Electronic evidence (Electronic Evidence) used to prove a case of cyber crimes in the
examination in the court of the display is exposed to deface the site (which changed its view
website) and log-log file (the time of the act) and the Internet Protocol (IP) is used as a "proof
of identity" that can detect cyber criminals and can indicate the presence of the user's own
computer. By examining and checking the owner of an IP number, it will be known the
location of the IP user. In the examination of crime in cyberspace in court, an expert witness
who made a very important role to give information relating to the recording and a copy of
the data (data recording) which is the electronic evidence, as well as obtained from a system
of computer networks secure and trustworthy (safe and credible) so that the result print out an
electronic proof of authenticity can be guaranteed and acceptable in the case of cybercrime
proof as valid evidence and which can stand alone as Real evidence. The position of an
expert as Testamentary Evidence is very important to clarify the authenticity of electronic
evidence that gives confidence to the judge in deciding the case of cybercrime.
Exposure digital evidence (electronic evidence) in the examination of evidence in the
trial plays a very important. Rules of evidence to know one of the measuring devices into the
theory of proof, namely the decomposition of how to deliver evidence to the judge in court
(bewijsvooring). In the trial of digital evidence will be tested authenticity 11 by presenting
digital evidence is to show the relationship of digital evidence found with cases of cyber
crimes that occur. Due to the process of investigation, prosecution until the inspection
process in the courts require a relatively long time, so far as possible the digital evidence is
still original and entirely the same (original) by the time the first time identified and analyzed
by the investigators through computer forensics laboratory.
In the process of proving a criminal case in court, the judge must consider the
interests involved in the case were examined, both the public interest or the interests of the
defendant himself. In this proof, the burden of proof borne by the public prosecutor with all
the resources and efforts to prove the guilt of the accused defendant to convince the judge of
the truth of the indictment which then form the basis of the filing of criminal charges or legal
counsel contrary defendant has the right to undermine the evidence submitted by the
prosecution to anticipate the indictment of the prosecutor and defense to the defendant.
Basically, in the process of proving the crime of fraud over the Internet is the same as
the proof of another offense (conventional criminal offense). In the process of proof, the
judge uses the Criminal Procedure Code. The provisions outlined in the Code of Criminal
Procedure of the examination in a court that is used by the judge in the process of proof. The
indictment was read by the public prosecutor used as a reference or base case investigation.
Judge who directs the course of any examination of the evidence and the evidence presented
at trial.

11
Edmon Makarim, 2013, Notaris & Transaksi Elektronik, Raja Grafindo Persada, Jakarta, hlm. 24,
 95

Any evidence or evidence presented by the public prosecutor in the trial, as required
by the Code of Criminal Procedure, namely the testimony of witnesses, expert testimony,
letters, instructions, and information from the defendant, the judge must examine the
evidence one by one, if relevant (have a pretty ) several laws that can be used and is very
instrumental in helping to prove the process of proving the crime of fraud over the internet in
court.
The next stage is the stage of the decision making. The verdict is very closely related
to problems of proof. Basis in deciding a case in court is Section 183 Criminal Procedure
Code and Code of Criminal Procedure Article 184 in relation to Article 44 ITE Law. Section
183 Criminal Procedure Code stipulates that "a judge should not convict someone unless with
at least two valid evidence and gain confidence that a crime actually occurred and that the
defendant is guilty of perpetrating". In case the decision of criminal fraud over the internet
use this article, article 28 paragraph (1) of the Act and Article 378 of the Criminal Code ITE
remain in place because of the ITE Law has not been set out clearly the criminal fraud by
electronic means. By means of Section 183 Criminal Procedure Code is expected to create a
provision that guarantees the real truth and justice and the rule of law.
In this case the role of the judge is very required to be more cautious, careful and
mature in assessing and considering any evidentiary issues. After several stage is passed, then
the judge came to the conclusion to determine the decision to be taken by not influenced by
other parties.

Obstacles In Crime Evidence Fraud over the Internet

The crimes committed using the Internet is often the case, both in Indonesia and
abroad. Crimes that make the Internet as a means to commit a crime that can happen anytime
and anywhere where it can reach the internet. Criminal fraud over the internet even beyond
the limits of the sovereignty of a country, so that law enforcement agencies have difficulty in
doing the process of proving the crime of fraud over the internet.
In the process of proving the crime of fraud over the internet there are obstacles.
Constraints due to the law enforcement agencies do not have sufficient knowledge of current
technological developments, especially concerning cyberspace. This is one factor that
becomes obstacles for law enforcement in conducting examinations in the courtroom.
In the process of proving in court always brings telematics experts to assist law
enforcement in terms of giving sight to the judge on the evidence presented at trial. The
telematics experts will describe one by one to judge on the evidence presented at trial,
whether the evidence is genuine or fake (engineered).
Telematics experts in the process of proving the crime of fraud over the internet in the
trial had a very important role, it can be said that without the contribution of telematics expert
at trial, it is possible that the process of proving the crime of fraud over the internet in the trial
would be difficult to implement. As for the obstacles in the process of proving the crime of
fraud over the internet in the trial is the aspect of legislation, legal proof according to the
legislation and the low human resources.
Indonesia has many laws governing human behavior, but in reality the law is always
behind in organizing any existing problems in society. One conducted by the government in
terms of addressing and eradicating the crime of fraud over the internet in Indonesia is to
publish ITE Law. However, legal practitioners found the ITE Law has not been able to reach
every crime and lack of regulation regarding the crime of fraud with electronic means to
clearly and effectively.
In each country would require legislation to regulate the lives of its people. The law is
what governs the relationship between individuals and between individuals and society. This
law is also used as a benchmark for the government to run the government and also in
 96

protecting the country from deviant behavior that poses a danger to the state. This law created
a complex with the aim that the law can reach every people's behavior and the law becomes
the protection for the citizens of the community. ITE Law basically have broad rule it is
intended by the constituent to facilitate the conduct of regulation against cyber world wide. It
is very different when compared with cyberlaw regulations in other countries such as the
United States, and Singapore, which are separately in determining aspects of cyberlaw and e-
commerce in some legislation. This makes it seem less specific ITE Law to regulate the
problems in the regulation of cyberlaw and e-commerce, 12 this is reflected in some legal
issues in e-commerce are regulated in the ITE Law is too general and not specific.
The era of globalization has put Indonesia as part of a world information society that
requires the establishment of a virtual world setting meant that the development of
information technology can be done optimally so as to achieve the life of the nation. In 2008,
the government has passed legislation in question is the ITE Law. However, in practice the
law is not enough to cover all aspects of cyber crime, especially the crime of fraud with
electronic means. This legislation there are still some short comings that the law enforcement
agencies have difficulty in trapping the perpetrators of cybercrime and cybercrime
perpetrators can freely perform an action in the virtual world without the slightest fear. The
weakness of the ITE Law as ignoring legal jurisdiction.
Article 37 of the ITE Law asserts "Any person knowingly commit prohibited acts
referred to in Article 27 through Article 36 outside Indonesia to electronic systems that are in
Indonesian jurisdiction, may be made to Article 37 is in a condition in which a person who is
in Indonesia, or a citizen of another country using existing servers in other countries people
can be charged under this law. However, because Article 27 regulates the actions that do not
have the same standards in other countries, coupled with Article 34 providing for the sale of
hardware and software, so that Article 37 generating conflict jurisdiction.
In the case of cybercrime which is not covered by the Act ITE is Credit Card Fraud
(Carding) and fraud against the bank (bank fraud), fraud by offering services (service Offered
fraud), also still using the conventional laws regarding fraud, namely Article 378 of the
Criminal Code. In the ITE Law has not been set on the issue of fraud in view of the actual
crime is a crime committed by using media information and electronic transaction facilities
provided on the Internet. 13
For that law enforcement was not able to continue to refer to the ITE Law and
arrangements to deal with computer crimes should be integrated into the Criminal Code, not
to the law itself because the old Criminal Code could no longer reach new criminal offenses
created by the times. This is because the law has its own paradigm underlying the
manufacture or creation of legislation that are adapted to its time, whereas today have
changed. Therefore, it needs to be a new legislation that can keep abreast of the times.
Looking at the reality of the laws that exist in Indonesia today where in the Criminal
Code provisions have not been set concerning cyberspace, so in this case efforts should be
made relating to the problem of proof in court is to optimize the ITE Law in handling cases
cyberspace.
Recognition of electronic data as evidence in court still seems questionable
authenticity. In the practice of the courts in Indonesia the use of electronic data as legal
evidence is not yet commonly used. Whereas in some countries, the electronic data in the
form of e-mail has become a consideration for a judge in deciding a case (civil and

12
Abdul Halim Barkatullah, 2009, Perlindungan Hukum Bagi Konsumen Dalam Transaksi E-Comerce
Lintas Negara di Indonesia, FH UII Press, Jakarta, hlm. 4; Ninik Suparni, 2001, Masalah Cyberspace
Problematika Hukum dan Antisipasi Pengaturannya, Fortun Mandiri Karya, Jakarta, hlm. 33.
13
Abdul Wahid, Mohammad Labib, 2005, Kejahatan Mayantara (Cybercrime), Refika Aditama,
Bandung, hlm. 98.
 97

criminal). 14 It would not have to wait long to address the issue of electronic evidence,
including e-mails to get legal recognition as valid evidence in court. In business practice, the
existence of electronic documents has become a consequence of the development of
technology.
In this case the position of the law of evidence as would normally be in a difficult
position. On the one hand that the law can always acknowledge the times and technology
need legal recognition of various types of development of digital technology to serve as
evidence in court. But on the other hand, the tendency of the use of the evidence of digital
manipulation by parties who are not responsible for causing the law is not free in admitting
digital evidence so that the digital evidence in proving a hard sell.
In Article 5 (1) and (2) describe the ITE Law that electronic documents and electronic
information is a valid evidence. In addition, in Article 44 of the same law says, "Evidence
Investigation, Prosecution, and examination in the trial court pursuant to the provisions of
this law are as follows‖:
a. Evidence as referred to in the statutory provisions and
b. Other evidence in the form of electronic information and / or electronic documents
referred to in Article 1 number 1 and number 4 and Article 5 paragraph (1), paragraph
(2), and (3).

If anything would be considered electronic mail (e-mail) and other digital recording as
written evidence in evidence during the trial, may still be necessary expert witnesses to
determine the feasibility of evidence. In fact the majority of cases (cybercrime) difficult
finding written evidence (letters in the conventional sense), as required by Section 184
Criminal Procedure Code. Evidence available in those cases of cybercrime are shaped
electronic data or digital. However, the Criminal Code does not admit electronic evidence as
valid evidence.
The question next is to test the feasibility of this evidence is to be accepted as a valid
evidence in accordance with what is prescribed in the Criminal Procedure Code or not. In this
case it is necessary the role of expert in telematics. Telematics experts who will assist the
judge in terms of providing a view of the evidence presented at trial. Determine whether that
evidence is evidence that the original (original) or engineered. The use of electronic data in a
few cases that have been decided by a judge only based on the reasoning for the forgiveness
of electronic data as evidence letters and instructions. The law enforcement is very difficult to
obtain evidence of cybercrime as stipulated in Article 184 Criminal Procedure Code.
Evidence expert testimony is one of the evidence contained in the Code of Criminal
Procedure Article 184 that the information given by a person who has special expertise about
the necessary things to make light of a criminal case for the purpose of examination. Expert
testimony is essential with the aim to avoid confusion in the examination so as to make the
lighter a particular criminal case. Juridical implications of expert testimony in the completion
of certain criminal cases that can make happen or not a criminal offense because of the expert
testimony in the proof of a specific criminal offense may alleviate or incriminate a defendant.
Given the importance of expert testimony in the case, the proof should be in the law
enforcement officials call an expert not only one but it may take two or more experts that the
information given by the experts are quite powerful in finding the right material.
Evidence of witness testimony is the primary evidence in a case, but this is hardly
evidence could be presented in court in every case of cybercrime. 15 This is because in

14
Siswanto Sunarso, Hukum Informasi dan Transaksi Elektronik, Rineka Cipta, Jakarta, hlm. 135
15
Budi Suhariyanto, 2012, Tindak Pidana Teknologi Informasi (Cybercrime), Raja Grafindo Persada,
Jakarta,hlm. 76.
 98

general, every actor in carrying out the action is done in secret, so that everyone can not see
the action. Furthermore, in carrying out the action actors always use e-mail with data that
does not match the actual data with the intention that law enforcement is not easy to find the
perpetrator.
Almost all countries believed that science and technology is very important in
supporting the growth and progress of the country. Countries that do not have and master of
science and technology will be left of civilization. Science and technology is now considered
the most powerful and serve as an ideology. Strategic choices about the ownership and
control technology that is more proportionate and appropriate will direct human action
toward their dreams. Knowledge of this technology should be owned by everyone, not just
those who are engaged in science and technology are required to understand but should be
owned in every field of work.
The world is now being hit by the revolution in information technology. People who
do not use the internet for various purposes due to outdated technology or blind or clueless.
This situation is forcing everyone to strive to know about technology.
In fact, many law enforcement officials who do not follow the developments and
technology. This has become one of the obstacles for law enforcement in taking a stance in
the process of proof at trial. Likewise with facilities owned by law enforcement is still
inadequate. Given the lack of knowledge of the law enforcement officers who know and
understand the problems of internet technology, the solution is going to be done is to provide
equitable education and training for law enforcement that the law enforcers more easily carry
out their duties and functions as the executor of justice for the entire community as it has
been established by law.
Internet is basically used to improve and speed up the process and widen business
networks, as a vehicle for the scientific search for references to libraries worldwide. But the
morally Indonesia not ready for this new technology. They are using it just for a chat or to
communicate without direction, tit, sending a virus, hours exploration our site (web site)
porn, gambling as a means to avoid waste phone credit, financial and moral damage.
Internet presence is strongly associated with the computer as a tool to access the
Internet around the world so it can be affordable telecom network. The Internet also makes
conventional original crime, such as fraud, defamation, gambling, and theft can now be done
using the internet. Risks faced by actors is also very small, but the consequences of his
actions are very large. This is because the actors can commit these crimes anywhere by
internet for an affordable place with a tool that can access the network
In tackling the obstacles encountered in the process of proving in court, then there are
things that need to be addressed, namely the aspects of legislation, legal evidence, according
the legislation, human resources. If all three of these aspects have been addressed then
certainly the process of proving the crime of fraud over the Internet can be implemented
without any constraints or minimize constraints.

Conclusion

1. The process of proving the crime of fraud over the Internet is basically the same as the
proof of another offense (conventional), except that in any proof of criminal fraud
over the internet in court always brings an expert in telematics. Judge in deciding a
criminal fraud over the internet using Section 183 Criminal Procedure Code which
can only judge deciding a case if at least two valid evidence and the judge believes
that the incident occurred and the defendant's right to do so. Guidelines for
determining the evidence used Section 184 Criminal Procedure Code in relation to
Article 44 of Law No. 11 of 2008 on Information and Electronic Transactions
 99

2. Constraints faced by judges in the process of proving the crime of fraud via the
Internet, among others, the weakness of the law governing criminal fraud by means
elektronic (internet) and the ITE Law does not deal with criminal fraud over the
internet strictly, and still low human resources possessed by law enforcement
officials, especially judges regarding technology.

References
Abdul Halim Barkatullah, 2009, Perlindungan Hukum Bagi Konsumen Dalam Transaksi E-
Comerce Lintas Negara di Indonesia, FH UII Press, Jakarta
Abdul Wahid, Mohammad Labib, 2005, Kejahatan Mayantara (Cybercrime), Refika
Aditama, Bandung,
Andi Sofyan dan Abd. Asis, 2014, Hukum Acara Pidana Suatu Pengantar, Prenada Media
Group Jakarta
Agus Rahardjo, 2002, Pemahaman dan Upaya Pencegahan Kejahatan Berteknologi, Citra
Aditya Bakti, Bandung
Budi Suhariyanto, 2012, Tindak Pidana Teknologi Informasi (Cybercrime), Raja Grafindo
Persada, Jakarta,
Edmon Makarim, 2013, Notaris & Transaksi Elektronik, Raja Grafindo Persada, Jakarta
Efa laela Fakhriah, 2009, Bukti Elektronik dalam Sistem Pembuktian Perdata, Alumni,
Bandung,
Ninik Suparni, 2001, Masalah Cyberspace Problematika Hukum dan Antisipasi
Pengaturannya, Fortun Mandiri Karya, Jakarta,
Reda Mathovani, 2006, Problematika dan Solusi Penanganan Kejahatan Cyber di Indonesia,
Malibu, Jakarta,
Widodo,2013, Aspek Hukum Pidana Kejahatan Mayantara, Aswaja Pressindo, Yogyakarta.
Siswanto Sunarso, Hukum Informasi dan Transaksi Elektronik, Rineka Cipta, Jakarta
Subekti, 1987, Hukum Pembuktian, Pradnya Paramita, Jakarta.
http://www.google.com., Aspek Hukum Pembuktian Dalam Tindak Pidana Penipuan dengan
Telepon Seluler, Tanggal 19 Oktober 2004.
http://www.ubb.ac.id. Modus Operandi Cybercrime, tanggal Agustus 2009
http:///www. google. com, Bentuk-bentuk Cybercrime Menurut National Criminal
Intelligence Service (NCIS), Tanggal 25 September 2009.
http://www.google. com. Karakter Cybercrime, Tanggal 30 April 2010
Republik Indonesia, Undang-Undang Nomor 1 Tahun 1946 Tentang Kitab Undang-Undang
Hukum Pidana
---------------, Undang-Undang Nomor 8 Tahun 1981 Tentang Hukum Acara Pidana
---------------, Undang-Undang Nomor 11 Tahun 2008 Tentang Informasi dan Transaksi
Elektronik.
 100

POLICY AS A NON PENAL CYBER CRIME PREVENTION

Anastasia Reni Widyastuti1

ABSTRACT
Rapid development in the use of Internet services has also invited the crime. Cyber
crime is an outgrowth of computer crime. Cyber crime is a form of virtual crime by the media
using a computer connected to the internet, and exploit other computers connected to the
internet as well.
Cyber crime is one of the dark side of the technological advances that have a very
broad negative impact for all areas of modern life today. This raises concerns about the
threat or danger of cyber crime, as it is closely related to economic crimes and organized
crime.
Cyber crime prevention policy is not only prevention through a policy of "penal"
(both criminal law and criminal law materiel formal), but also a policy of "non-penal". Non-
penal policy is an effort to develop security/computer protection and prevention measures
(computer security and prevention measures). It is associated with the prevention of techno
approach, namely the prevention of crime by using technology. Cyber crime is closely linked
to technological progress, can not be addressed solely with juridical, but also must be
addressed with the approach of the technology itself.
Other non-penal policy is the need for a cultural approach in cyber crime prevention
policy, is build/raise sensitivity citizens and law enforcement officials to the problem of cyber
crime and disseminate/teach ethical use of computers through educational media. This
cultural approach is also done with the effort to develop a code of ethics and behavior of
computer use.

Keywords: policy, non-penal, cyber crime.

INTRODUCTION
Rapid development of telecommunications technology and computer technology
based on the developments in the field of micro-electronics, materials, and software.
Computer technology is a form of computer network that later gave birth to a global
information and communications space known as the internet. The use of computer
technology, telecommunications, and information that encourage the development of
transactions over the internet in the world. World-scale enterprises, more and more utilizing
the internet facility. Meanwhile, growing transactions through electronic or on-line from
various sectors, which then led to the term e-banking, e-commerce, e-trade, e-business, e-
Retailing.
The rapid developments in Internet technology led to new crimes in that field also
appears, for example, crime data manipulation, espionage, sabotage, provocation, money
laundering, hacking, theft of software and hardware destruction. Even the crime rate through
the Internet (cyber crime) is not followed by the government's ability to compensate, making
it difficult to control it. The emergence of several cases of cyber crime has become a threat in
Indonesia stability, public order with eskalatif high enough. The Government has not been

1
Faculty of Law University Catolic of Santo Thomas North Sumatera, Email:
widyastutireni@yahoo.co.id
 101

able to keep the law of crimes committed by the technique of computer technology,
especially in the Internet network.2
Tort via the internet is not easily overcome by relying on conventional positive law,
because talking about the crime can not be separated from the 5 factors intertwined, are
criminals, mode of crime, victims of crime, social reaction to the crime and the law. 3 The
law is an important instrument in the prevention and control of crime, in addition to other
instruments. However, to make a law against a field that is changing very rapidly as
information technology, is not an easy matter. So the law (rules) appear quickly become
obsolete when arranging field changes rapidly, so that the situation as a legal vacuum.
Actually there will be no legal vacuum, if used interpretation method known in the
science of law. This is supposed to be held by law enforcement officers in the face of a new
dimension acts specifically not regulated by law. Unfortunately, the question of the
interpretation, the judges do not agree on some categories of actions. To overcome this, a
careful legislative action is required, which is not to be stunned legislation on the
development of technology that makes overlegislate regulations, which in turn would likely
have a negative impact, both in law and in the socio-economic field. 4
Initially there are two opinions about whether laws governing cyber crime, including:
1. The group saying that to this day there are no laws regulating the issue of cyber crime,
because in case of cyber crime in the world, it is very difficult for law enforcement to
catch the culprit.
2. Those who think that there is no vacuum. They believe even though there are no laws
that specifically regulate cyber crime, the law enforcement agencies can use existing
legal provisions. 5

Finally, in March 2008 passed Act No. 11 of 2008 on Information and Electronic
Transactions, by the government. In the law regulated the criminalization of some acts that
were previously not criminal offenses through several breakthroughs and expansion in terms
of its principles as well as criminal sanctions. In addition to substantive criminal rules, the
law also regulates the procedure and evidence are undergoing expansion, namely the
inclusion of new evidence relating to electronic media.

Definition of Cyber crime

Cyber crime was originally defined as a computer crime. Regarding the definition of
computer crime itself, until now scholars have not agreed. The use of the term for the
criminal acts of computer crime in English, is still not uniform. Some scholars use the term
"computer misuse, computer abuse, computer fraud, computer-related crime, computer-
assisted crime, or computer crime". But scholars at that time, more receptive to the use of the
term "computer crime", because it is considered more widely and commonly used in
international relations. 6
The British Law Commission, defines computer fraud, as the manipulation of the
computer in any way that is done in bad faith to obtain money, goods or other benefits or

2
Budi Suhariyanto, 2013,Tindak Pidana Teknologi Informasi (Cyber crime), Urgensi Pengaturan dan
Celah Hukumnya, PT Raja Grafindo Persada, Jakarta, hlm. 3.
3
Ahmad Ramli, 2004, Cyber Law dan HAKI Dalam System Hukum Indonesia, Refika Aditama,
Bandung, hlm. 1.
4
Muladi dan Barda, 2007, Bunga Rampai Hukum Pidana, Alumni, Bandung, hlm. 40.
5
Merry Magdalena dan Maswigrantoro Rors Setyadi, 2007, Cyberlaw Tidak Perlu Takut, Andi,
Yogyakarta, hlm. 82.
6
Puslitbang Hukum dan Peradilan Mahkamah Agung Republik Indonesia, 2004, Naskah Akademis
Kejahatan Internet (Cyber crimes), hlm. 4.
 102

intended to cause harm to others. Mandell dividing "computer crime" in two activities,
namely:
1. The use of computers to carry out acts of fraud, theft or concealment is intended to
obtain financial benefits, business benefits, property or services;
2. Threats to the computer itself, such as hardware or software theft, sabotage and
extortion. 7
The US Computer Crime Manual uses "computer-related crime" in addition to
"computer crime". Franken Commission uses "computer misuse" because of "computer
crime" is limited to acts that are prohibited by the Criminal Law Act, even though the
computer misuse act may also be prohibited by other provisions. In the Dutch language often
used the term "computer misbruik" next "criminaliteit computer". With the development of
Internet and telecommunications networks are now known the term "digital crimes" and
cyber crime. 8
At first the lawyers focused on equipment / hardware is the computer, but with the
development of information technology such as the Internet, it is focusing on the
identification of a more expanded definition of cyber crime again is an area of activity that
can be carried out in cyberspace / virtual through information systems used. So it is not just
the hardware components are defined as the crime of cyber crime, but it can be expanded
within the scope of the world explored by the relevant information technology systems. So it
would be more appropriate if the meaning of cyber crime is crime information technology.
Therefore, cyber crime basically covers all offenses relating to information systems.
System information (information system) itself, as well as the communication system is a
means for delivery / exchange of information to other parties (transmitter/originator to
reciptient).9

Forms of Cyber Crime

Some forms of crime are closely linked to the use of information technology major based
computer and telecommunications networks, in some of the literature and practice are
grouped into:
1. Unauthorized acces to computer systems and service: Crimes committed by entering /
breaking into a computer network system illegally, without a permit or without the
knowledge of the owner of the computer network system that is entered.
2. Illegal contents: a crime by entering the data or information to the internet about
something that is not true, unethical, and may be unlawful or disturbing public order.
3. Data forgery: a crime by falsifying data on important documents stored as scriptless
document over the internet.
4. Cyber Espionage: a crime that utilizes the Internet to conduct espionage against other
parties, by entering into the computer network system (computer network system) the
target.
5. Cyber sabotage and extortion: these crimes are carried out by making nuisance,
vandalism or destruction of the data, computer programs or computer network
systems that are connected to the Internet.
6. Offense against intellectual property: the crime is directed against the intellectual
property rights of any party on the Internet. An example is the imitation of the
appearance of the web page is a site owned by others illegally, broadcasting the
information on the internet which appears to be trade secrets of others, and so on.

7
Ibid., hlm. 10.
8
Ibid., hlm. 4.
9
Didik M. Arief mansur dan Elisataris Gultom, 2005, Cyber Law Aspek Hukum Teknologi Informasi,
Refika Aditama, Bandung, hlm. 10.
 103

7. Infrengments of privacy: these crimes are directed against one's information that is
highly personal and confidential. These crimes are usually directed against a person
on the information stored personal data form is computerized, which if known by
others will be able to materially harm the victim or immaterial such as credit card
number, ATM PIN number, defects or hidden disease and so on.10

Based on criteria other forms of cyber crime in the above, it can be classified in two
categories, namely fraud data and fraud programs. In the first form, unauthorized data entered
into the system or computer network or unauthorized data entry and should be amended to be
invalid or no longer valid. Focus attention on the first case of this is the existence of fraud
and / or input data with the intent to change the output. The second form of crime, which is
relatively more sophisticated and more dangerous is if someone changed the computer
program either done directly in place of the computer is well done remotely through a data
communications network. In this case the criminals to penetrate into the computer system and
then change the composition of the program with the goal of producing an output (output) is
different than it should be, despite the program having input (input) is true.

Crime Prevention Efforts With Non Penal

Sudarto revealed that the criminal law is a symptom alleviation (kurieren am
symptoms) and not a solution to eliminate the causes. So the limitations of the criminal law
for this is also due to the nature / nature and function of the criminal law itself, because it is
not criminal sanctions for drug (remedium) to address the causes (sources) of disease, but
merely to treat the symptoms / consequences of the disease. 11
From this description can be identified causes of the limited ability of the criminal law
in tackling crime as follows: (1) the causes of crime are complex thus beyond the reach of the
criminal law; (2) The criminal law is a minor part (sub-systems) of the means of social
control that is not possible to overcome the problem of evil as a matter of humanitarian and
social issues; (3) the use of criminal law in tackling crime kurieren am just a sympton,
therefore the criminal law is only a symptomatic treatment and not a causative treatment; and
(4) the working / functioning of the criminal law requires a means of support are more varied
and more demanding high cost.
According to GP Hoefnagels crime prevention efforts can be done in various ways.
First, is the application of the criminal law; The second is with no criminal prevention
(prevention without punishment) and the third, is to influence public opinion on crime and
punishment. 12 Thus, crime prevention efforts can be broadly divided into two, namely via the
penal (criminal law) and via the non-penal (outside the criminal law). In simple terms it can
be seen that the reduction of crime via the penal more focused on the repressive nature of the
crime that, while the path of non-penal more focused on preventive properties (prevention)
before the crime occurred.
Given the response via the non-penal crimes are more precautions for the crime, the
main goal is to deal with the factors conducive to the cause of the crime. These favorable
factors, among others, centered on the problems or social conditions that directly or indirectly
fertilize the crime. Judging from the efforts of non-penal, it needs to be explored, developed
and exploited all the potential, the support and participation of the community in an effort to
streamline and develop informal or extra-legal systems and traditional systems that exist in
society, which has the potential preventive effect. Therefore, the role of the community can
be considered as one way of non-penal or attempt to prevent or solve crimes in this case
10
Ibid., hlm. 9-10.
11
Barda Nawawi Arief, 2006, Bunga Rampai Kebijakan Hukum Pidana, Citra Aditya Bakti, hlm. 86.
12
Ibid., hlm. 56.
 104

cyber crime, because it is preventive, that can deter and prevent crime before it occurs, and
can be considered as one of the efforts of non-penal occupying key and strategic positions of
the overall efforts to address the causes and conditions that lead to crime.

Limit Ability of Law in Combating Crime

The law always tries to regulate almost every aspect of human life and therefore the
law is powerful. Might the law is supported by all the facilities and infrastructure that enabled
it to undertake such acts of violence are legally owned by the police. But all that might not
infinite, the law has boundaries abilities cause he looks powerless. Journey science of
jurisprudence also show how the law has limited ability to explain phenomena in the society
so that the resulting new way of explanation of the shift the dominance of the old way of
explanation. Modern law in Indonesia has become a technological and abstain from moral
discourse. The moral issue is one of the limitations of modern law. 13 Antony Allott also think
alike, that the law is something that is related to the fact, no law or norm exists and is not
associated with the value. 14 Since then the law gives the chance of castration of the content
of the moral law, because the law can enforce or execute become synonymous with running a
mere regulation. 15 Uphold and execute the law is not identical with the process of justice,
because the modern law has changed into a formal and bureaucratic institutions. In the
context of modern life using the law, could arise discrepancy between the formal justice or
fairness rules with substantial justice. 16
Esoteric modern legal position makes it insensitive to the change and development of
the era. The law does not move in a vacuum, it is always in a particular social order and
human life. 17 The law must also consider factors beyond law that gives effect to the
development of the science and practice of law. The law is not everything because of a law
that is made will always be changed substantially, both due to normal changes or other
means. 18 Modern legal closure causes it difficult to find answers to events that do not exist in
the written rules (laws), causing the modern law into collapse. Events that do not fit the grip
of the rules that have been made show that modern law is so powerful also have limited
ability to explain things beyond pakemnya. Therefore it appears that the various criticisms
aimed at making the law more sensitive to the changes and development of society. The
criticism was not only directed at limited capacity in terms of theory, but also with regard to
the practice, especially when it is operated in the public law.
Antony Allott said that the law has a limited ability to perform its functions. Allott
The study was conducted on a state law that was not functioning in simple societies in Africa,
19
a similar case also occurred in Indonesia, where the traditional order (customary law) still
dominates the lives of rural communities. Allott suggests there are several things that make
the laws are often seen to be ineffective. First, it has become a fate that the law weakens
13
Ibid., hlm. 56.
14
Antony Allott, 1980, The Limit of Law, London: Butterworths, hlm. xi.
15
Ibid., hlm. 58.
16
Ibid., hlm. 102. Bandingkan dengan kasus O.J. Simpson, dimana dalam keadaan yang demikian,
yang menonjol adalah persoalan prosedur dan birokrasi, produk yang dihasilkan adalah keadilan prosedural
bukan keadilan substansial. Itulah ironi hukum modern yang mengedepankan prosedur sehingga seorang O.J.
Simpson dapat lolos karena faktor prosedur yang dikedepankan. Lihat penjelasan kasus ini dalam Gerry Spence,
1989, With Justice For None, New York: Penguin Books; Alan Derschowitz, 1996, Reasonable Doubts, The
O.J. Simpson Case and the Criminal Justice System, New York: Simon & Schister. Lihat juga dalam Satjipto
Rahardjo, 2003, Sisi-sisi Lain Dari Hukum Di Indonesia, Jakarta: PB. Kompas, hlm. 56, 62 dan 191.
17
Satjipto Rahardjo dalam Esmi Warassih, 2005, Pranata Hukum, Sebuah Telaah Sosiologis,
Suryandaru Utama, Semarang, hlm. 3.
18
Pernyataan ini merujuk kepada pendapat Robert B. Seidmann dalam karyanya Law and
Development, A General Model, dalam Law and Society Review, No. VI, 1972.
19
Antony Allott, Op. Cit., hlm. 1-44.
 105

himself to his birth, it is a punishment for legislators ambition and a determination is

necessary for an effective legal requirements, such as sufficient survey, communication,
acceptance and executing machine. 20 Second, the law may not be effective, even when the
law was the object of their success, because a change in the context of attitudes and social
behavior. An important point of this is to recognize that cause ineffectiveness due to changes
and take steps to make improvements in accordance with the laws more effective, or repeal
laws were outdated and had not received. 21 To the limited ability of law in addressing
community issues that arise, according to Allott, adoption or acceptance of a majority of the
new law does not guarantee the ability of law. Allot gives two arguments as a way out, that is
a pragmatic approach as the best way to make an effective legal and moral approach.
Furthermore, he stressed the use of customary law which is based on the principle of
consensus with the support of social sanctions assessed to be more effective in the
implementation of the law. 22 Problems that arise in cyberspace not always be resolved by the
law, because the law has limited capabilities. These limitations are contained in both practical
and theoretical levels. On a practical level, the limited ability of law can be seen from the
effectiveness of law enforcement in the community. At this level is not just a question of the
written law is the main focus, but the facilities, infrastructure and the ability of law
enforcement officers also determined. With the current conditions, law enforcement officers
are required to dare to make a breakthrough or juridical construction of events unparalleled in
the legislation. At the theoretical level, the science of law (legal positivism) was unable to
give a satisfactory explanation to the phenomenon of cybercrime, so knowledge of such a law
should have stepped down and been replaced by a new legal theory that is able to give a
better explanation. Although the law has limitations, the law enforcement agencies have used
the existing law (the existing law) to address the problems that arise, although philosophically
actually the existing law is not in line with the development of the Internet. For it to the
limited ability that can be minimized, the model takes the right settings so that the law can
follow and support the development of technology and be able to solve problems that arise in
it.

The Hybrid Model of Cyberspace Law

Model setting to overcome the disadvantages of the existing law is the Hybrid of
Cyberspace Law. The concept of the hybrid models of cyberspace law starts from Pancasila
as the source of all sources of law in Indonesia (Grundnorm) as well as the outlook of the
nation. Pancasila as the outlook of the nation is the crystallization of the noble values of the
nation as well as the soul of the nation (volkgeist) Indonesia. In such a position, then the
ideals of Pancasila became law in developing the hybrid models of cyberspace law. 23
Man in the view of Pancasila is monodualisme,24 and this view was carried over when
humans perceive the Internet. To get to thinking about the regulatory model, it needs to be
studied in advance of views on the Internet itself. There are two views on the Internet, which
has implications for the field of law, namely:

20
Ibid., hlm. 287.
21
Ibid.
22
Ibid., hlm. 288.
23
Bernard Arief Sidarta, 1999, Refleksi Tentang Struktur Ilmu Hukum, Sebuah Penelitian Tentang
Fundasi Kefilsafatan dan Sifat Keilmuan Ilmu Hukum Sebagai Landasan Pengembangan Ilmu Hukum Nasional
Indonesia, Mandar Maju, Bandung, hlm. 181.
24
Sunoto, 1985, Mengenal Filsafat Pancasila, Pendekatan Melalui Etika Pancasila, Hanindita,
Yogyakarta, hlm. 5.
 106

1. The first group looked "just a tool" as well as the results of other technologies. The
first group produce a picture of the view that the Internet is the same as other
technologies, so that the issues arising from or related to it, is solved by using a law
(the existing law). 25 For this group of Internet and cyberspace is a "place" where the
government should set specific and rule-making using the traditional model, in which
the role of government is very large (top-down). 26 Governments regulate cyberspace
merely an attempt to prevent adverse effects on its citizens only, so that the regulation
of cyberspace is the old rules apply to the new world. 27
2. The second group looked at the internet "is not just a tool", based on the argument
that the internet presents a new space called cyberspace. However, the latter view is
split into two, namely:
a. Those who see cyberspace as free space so it is not necessary arrangements for
the inmates. 28 They refer to metaphors that exist in the wild-wild west culture
in the United States in the Middle Ages. Those who want a Cyberspace Self-
Governance regardless of any government.29
b. Those who believe that there are rules in cyberspace. They try to dig what the
rules are there. Joel R. Reidenberg proposes rules used to regulate cyberspace
is lex informatica, David Post and David R. Johnson suggested the need for
decentralized or emergent law, Tom W. Bell with polycentric law and
Lawrence Lessig proposes four modalities in regulating human activity in
cyberspace, namely law, social norm, the market and the nature/code.

In addition to these two groups, there are two groups again that the First is the
Internet Society (ISOC) is a society of the professionals who come from 150 countries. In
ISOC no Internet Architecture Board (IAB), which makes decisions about the architecture of
the standard techniques disebarluarkan on the internet. Standard IAB asks protocols for
implementation data communication is called TCP/ IP. Everyone can connect computer to the
Internet all the computers to implement TCP/ IP. The second is The Internet for Assigned
Name and Numbers (ICCAN), a non-profit corporation recognized by number of states to
administer Domain Name System (DNS). ICCAN set of processes and systems ensures that
each domain name has an true IP address.30
Indonesian courts can be classified in the first group for deciding the case by basing
on the existing law. In addition, legislators (executive and legislative) were included in the
group this first. Ways of making the law (in this case the bill ITE) which still use a top-down
paradigm of power that deny uniqueness and entities that exist in cyberspace. View of the
second group, especially that recognizes the existence of the law in cyberspace, the self-
regulation of the need for excavation and pandanganan rule of law in accordance with the
25
Michael P. Dierks, 1993, Computer Network Abuse, Harv. J.L. & Tech. Vol. 6 , hal. 308. Look also
Carlos Alberto Rohrmann, 2004, The Dogmatic Function of Law as a Legal Regulation Model for Cyberspace,
Paper in The Internet and The Law – A Global Conversation, University of Ottawa, October 2, hlm. 7.
26
Carlos Alberto Rohrmann, Op.Cit, hlm. 9-10.
27
Jack Goldsmith, 1998, Against Cyberanarchy, 65 U. CHI. L. REV. 1199, 1200-01; and Carl S.
Kaplan, 1998, How To Govern Cyberspace: Frontier Justice or Legal Precedent?, article in CyberLaw Journal,
Marc 27.
28
Lawrence Lessig, 1999, The Limits in Open Code: Regulatory Standards and The Future of The Net,
article in Berkeley Technology Law Journal Vol. 14.
29
Neil Weinstock Netanel, 2000, Cyberspace Self-Governance: A Skeptical View from Liberal
Democratif Theory, March; 88 Calif. L. Rev; David R. Johnson & David Post, The New ―Civic Virtue‖ of the
Internet: A Complex Systems Model for the Governance of Cyberspace, dalam C. Firestone (ed), 1998, The
Emerging Internet, Annual Review of the Institute for Information Studies.
30
Alfred C. Yen, 2002, Western Frontier or Feudal Society?: Metaphors and Perceptions of
Cyberspace, Berkeley Tech. L.J. 17:4.
 107

uniqueness of cyberspace. Joel R. Reidenberg defined Lex Informatica as the set of rules for
information flows imposed by technology and communication networks.31
David Post and David R. Johnson argued that the regulation of cyberspace is more
appropriate to use rule-making models that are decentralized and termed by Johnson and Post
as a decentralized, emergent law or by Tom Bell regarded as polycentric law. 32 The
decentralized, arises from the action joint involving the acceptance of voluntary standards (or
as the motto of the Internet Engineering Task Force "rough Consensus and working code").
This situation is not found in the rules that emerge from the system created top down,
and hierarchical control. Protocol engineering in cyberspace (net) has the effect of creating a
complex system that produces the type of rules which can not be entrusted to the lawyers,
court decisions, legislation and voting. According to Johnson and Post, retrieval desentralisir
decision is the reality of the application of the rules to the evaluation of the action and
collective human behavior settings. This model according to Johnson and Post has significant
advantages and should be seen as a major source of order online.33
Lawrence Lessig argues that in cyberspace there four modalities that limit human
freedom, the law, social norm, code and market.34 Law (law) regulate human behavior by
specifying or prohibit certain activities with the consequences of sanctions for those who
violate ex post facto. However, there are debates whether cyberspace require special or
unique set of laws or whether the laws in the world real (real space) can be applied there with
some adaptation. 35 In real space, the laws directly regulate human behavior, will But in
cyberspace, the law regulates human behavior indirectly with a view to changing markets,
norms and code. the group opposing regulation of cyberspace (especially anti-law of Chicago
School) assume that market, norms and code/architecture is a law-free (independent of law),
will remain according to Lessig, three is a product laws governing cyberspace collectively. 36
The statement for Graham Greenleaf raises the question whether the behavioral restrictions
created by law or changed by law. For Greenleaf, the law does not only affect the behavior
directly, but also not directly trying to change the market, norms or architecture. 37 Social
norms regulate human behavior with the threat of criminal ex post implemented by the
community (community), not by the government. Norms (norms) that regulate behavior in
cyberspace is the Internet Etiquette and social custom.38 Markets (market) set at a price, since
the market can restrict the behavior that is only because the law and social norms permit, then
the market is a restriction on the behavior of individuals and society. The pricing policy of
the Internet Service Providers (ISPs) determine the height low access to internet. 39 Lessig
notes that the technology not only affects the skeleton regulation (regulatory framework), but
the technology itself can into the regulatory framework. 40 Reidenberg also called attention to

31
Joel R. Reidenberg, 1998, Lex Informatica: The Formulation of Information Policy Rules Through
Technology, Texas Law Review, Vol. 76 No. 3, Feb., hlm. 553.
32
Tom Bell, 1999, Polycentric Law in a New Century, Policy, Autumn, hal. 34.
33
David R. Johnson & David Post, 1996, Law and Borders: The Rise of Law in Cyberspace, 481
Stanford Law Review, hal. 1367.
34
Lawrence Lessig, The Law of The Horse: What Cyberlaw Might Teach, http://cyber.law .harvard.
edu/works/lessig/law_horse.pdf or http://stlr.stanford.edu/STLR/Working_Paper/97_ Lessig_1/index.html.
35
Richard A. Spinello, 2000, Cyberethics, Morality and Law in Cyberspace, London: Jones and
Bartlett Publishers Int‘l. hlm. 3.
36
Lawrence Lessig, The Law of The Horse: … Op.Cit., hlm. 511.
37
Graham Greenleaf, 1998, An Endnote On Regulating Cyberspace: Architecture Vs Law, UNSWLJ
52 (1998), versi elektronik at http://www.austlii.edu.au/au/journals/UNSWLJ/ 1998/52.
38
Lawrence Lessig, The Law Of The Horse: … Op.Cit., hlm. 507
39
Richard A. Spinello, Op.Cit., hlm. 2-3.
40
Lawrence Lessig, 1996-97, Constitution of Code, 27 Cumb. L. Rev. 1; Lawrence Lessig, 1996,
Reading the Constitution in Cyberspace, 45 Emory L.J. 869; Lawrence Lessig, 1996, The Zone of Cyberspace,
 108

the power of technology. According to him, the traditional approach America and Europe in
the making of policy setting is not effective when applied to the Internet. Reidenberg noted
that "a network governance paradigm must emerge to Recognize the complexity of regulatory
power centers, [end] utilize new policy instruments Reviews such as technical standardization
to Achieve regulatory objectives.41 Lessig also talked about the standard as one point in the
discussion about the code. Standards within the same computer network the coordination and
regulation that are used to interact with using the Internet, such as TCP / IP, FTP and HTML.
Allocation of space (space allocation) on a network server (a network server) is a standard
regulation which assigning storage space restrictions on certain users allow users to use
storage resources sama.42
Lessig examines two things, the legal effect of the market, norms and architecture and
the influence of architecture on the law, and the market norm. Of the study, Lessig concludes
that the government can regulate and restrict the behavior of a person in cyberspace or on the
way determine specific software or hardware that prevents a person access certain
information. However, this restriction is plagued with product (software) that is not subject to
a specific legal regime, namely software that is open source. This product belongs to
everybody and the government does not can reach them. Based on all the above criteria, not
the actual code appropriately called the law of truth in the sense of the law, nor accurately
described as the Law in Cyberspace or Cyberspace Law or Cyberlaw. Their theory of the law
is more precisely termed "causes that allows the emergence of cyberspace ". Then the
question arises why the configuration or architecture as it is loaded with technology said by
them as law. Actually, such a configuration, it is more correct to say as legal technique,
meaning that to be able to communicate via a global communications network and go into
cyberspace, there are technical requirements that must be met, either in own computer as well
as on the global communications network. Persyaratanpersyaratan as it is called as the law
would have to be filled as a standard in communicating or behaving in cyberspace. If we refer
to the processes that cause standard on the existing equipment on the computer and
communications networks global, then the process is based on an agreement (agreement)
which the world level is coordinated by the International Organization of Standardization
(ISO). Based on the configuration and the process, then it is not wrong if they call the
architecture of cyberspace as legal or law in cyberspace or cyberspace law. However, if used
criteria law contained in jurisprudence, such a configuration can not be said to be legal. After
emerging cyberspace will appear question what laws apply or applied in space it's called
cyberspace.
Cyberspace is borderless characteristics, so that raises the question of what legal
regime that can be applied in there. Some countries are trying to regulate human behavior in
cyberspace, but because the country's sovereignty and limited by region territorial, the real
question is the extent to which the country's regulate cyberspace. This question arises because
there is an opinion that said that the rules of the state in cyberspace is merely a local
Ordinance. The characteristics of cyberspace is what often leads to the assumption that
cyberspace can not be regulated (unregulated). The hybrid of cyberspace law of this model is
the view that accommodate the views of the first and second groups, legal surrounding the
national law of cyberspace as well stand where netizens are physically located. Indeed, both
groups have valid arguments and backgrounds have different thoughts. However, the
difference is not to be contested, it must be met to generate ideas good and true. Manufacture
or formulation of the law is an arena fights conflict of interest, that the interests of the

48 Stan. L. Rev. 1403; dan Lawrence Lessig, 1999, Code and Other Laws of Cyberspace, New York: Basic
Books.
41
John R. Reidenberg, Governing Networks… Op.Cit., hlm. 96-100
42
Lawrence Lessig, The Limit …, Loc.Cit.
 109

businesses - which saw commercial Internet - and the interests of the cyber community that
has also that their liberty interests in cyberspace is not disturbed by the model arrangements
to be made. According to Chambliss and Seidman, formation law is a process of power
struggle, in which the state is a weapon in the hands of the ruling layers. Actually, the state
can act neutral in between the interests of the war, but what happened is not thus. 43
Sociologically, the law-making or law can not be seen as an activity that is sterile and
absolutely autonomous. in the perspective of This legislation has a social origin, social
objectives, experience social intervention and also have an impact sosial. 44 To reduce the
tension in the formation of a conflict of interest legislation, community participatory
approach is needed so that what is perceived as their interests may be accommodated in
legislation formed later. Thus creating a responsive law according to the terms Nonet and
Selznick or progressive law as introduced by Satjipto Rahardjo. Responsive law puts law as a
facilitator of response to the social needs and social aspirations. the responsiveness can be
interpreted as serving the needs and interests of experienced social and found, not by
officials, but by the people. Terms for authentically bring it requires special efforts will
memingkinkan this is done. This calls for new pathways for participation. Two salient
characteristics of legal concepts yan responsiveness is The first, a shift of emphasis from
rules to principles and objectives; and second, the importance of democracy as both a legal
purpose and how to give it.45
Progressive law as shown in the series of papers Satjipto Rahardjo is based on several
assumptions,46 here is a law for man, and not for himself; 47 law that has always been on the
status "Law in the making" and not final; and the law is the institution that moral humanity,
and not the technology that is not conscientious. Based on these assumptions, is a progressive
legal criteria have goals major form of human welfare and happiness; making moral content
humanity very strong; progressive law is the law freeing covering vast dimensions that do not
just move on the realm of practice, but also the theory; critical and functional, therefore it not
constantly see the deficiencies that exist and find a way to fix it. 48 The idea or the idea of a
progressive law arising in the background social phenomenon that occurred in Indonesia after
the fall of the new order, in which legal life worse that it needs a major step for fix it.49 The
question that arises is what is the need to link progressive law by setting human activities in
cyberspace. It does not just need an answer, but also an explanation that the idea of the hybrid
cyberspace also become clear. The main focus of the law is progressive in humans, not
legislation, bodies or institutions. This view is called the anthropocentric, where man became
the center of all activity on earth. this view cause everything - science and technology -
developed for the benefit of man, so that everything - including the law - which created it
should be a happy man. This view is a benchmark in explaining the hybrid cyberspace law.
The regulation of human activities based on the consideration about good and evil as a moral

43
William J. Chambliss dan Robert B. Seidman, 1971, Law, Order and Power, Addison-Wesley
Publishing Company. Satjipto Rahardjo, 1986, Hukum dan Masyarakat, Angkasa, Bandung, hlm. 50.
44
Satjipto Rahardjo, 2002, Sosiologi Hukum, Perkembangan, Metode dan Pilihan Masalahnya,
Khudzaifah Dimyati (ed), Universitas Muhammadiyah Surakarta, hal. 125.
45
Phillip Nonet dan Philip Selznick. 1978, Law and Society in Transition, Toward Responsive Law,
New York: Harper and Row, hal. 4, 10, 14 dan 73; dan A.A.G. Peters & Koesriani Siswosoebroto, 1990, Hukum
Dan Perkembangan Sosial, Buku Teks Sosiologi Hukum, Buku III, Pustaka Sinar Harapan, Jakarta, hlm. 176,
178 dan 181.
46
Satjipto Rahardjo, Hukum Progresif: Hukum Yang Membebaskan, Jurnal Hukum Progresif Vol. 1
No. 1 April 2005, hal. 1.
47
Satjipto Rahardjo, 2006, Hukum Dalam Jagat Ketertiban, Jakarta: UKI Press, hal. 55-64 dan 151-
152.
48
Satjipto Rahardjo, Hukum Progresif: …Log.Cit.
49
Ibid., hlm. 3.
 110

measure. In the setting of activity humans in cyberspace, we are faced with two conflicting
moral: moral of the first group - who view the computer simply as a tool aids alone - and the
moral of the second group - which holds the computer can brings its own distinct entity with
human entities in the world physical. The difference this perspective led to moral measures
used in organize their activities in cyberspace are also different. The first group want to set
using benchmarks of human moral based measure of human morality that exist in the
physical world (local moral), which of course limited jurisdiction and the second group
requires setting based on the existing moral in cyberspace (Morality in cyberspace). Thinking
about the need for moral considerations in setting related to human activities or in cyberspace
actually want shows that the law will create is the embodiment of a peculiar form of social
life. With such considerations we can not ignore the cultural elements of the legal system in
which there are values moral that can be used as a hybrid of the development direction
cyberspace law. This view also wanted to show that the law was actually been embedded in
society, or with the terms Satjipto Rahardjo stated "the law works and embedded in a
sociocultural matrix".50 In the theoretical framework, the idea of the hybrid of cyberspace
law is an attempt to capture the whole of reality, namely the existence of an entity in
cyberspace and real space and has different characteristics. This fact was about to be arrested
and combined resulting in a picture or a rule or law that can accommodate real situation, so
that later formed the law is The real legal laws (genuine law). The law should be developed in
Here not only the "law of man" as a progressive law thesis, will but change and grow into a
"law for the people and technology". This thesis put forward to accommodate not only the
benefit of man, will but also of technological interest for the welfare of human beings in
order to grow and science.

Conclusion
Arrangement models to overcome the disadvantages of the existing law is the Hybrid
of Cyberspace Law. The concept of the hybrid models of cyberspace law starts from
Pancasila as the source of all sources of law in Indonesia (Grundnorm) as well as the outlook
of the nation. Pancasila as the nation's way of life is the crystallization of the noble values of
the nation as well as the soul of the nation (volkgeist) Indonesia. In such a position, then the
ideals of Pancasila became law in developing the hybrid models of cyberspace law.
In cyberspace there are four modalities that limit human freedom, namely the law,
social norm, code and market. Laws regulate human behavior indirectly for the purpose of
changing market, norms and code. Norms (norm) that regulate behavior in cyberspace is
Internet Etiquette and social custom. Markets (market) set the price, because the market can
restrict the behavior just because of legal and social norms permit, then the market is a
restriction on the behavior of individuals and society. Pricing policy of Internet Service
Providers (ISPs) determine the level of access to the internet.

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 113

ONLINE SEX TRAFFICKING OF WOMEN AND CHILDREN IN INDONESIA:

LEGAL PERSPECTIVES AND CHALLENGES

Milda Istiqomah and Kristiyanto1

ABSTRACT
As our life is getting interconnected by the so-called cyber-world, people are getting
connected like never before, current generation of human civilizations is on the phase of
unlimited interconnection. This unregulated cyber world has given so much advantages
for human in general, however, in another side it also opens a window of threats, one of
the threats towards this interconnected world of internet today is online sex trafficking.
This article examines the phenomenon of human trafficking in the context of sexual
exploitation. It focuses on the patterns of online sex trafficking in Indonesia as well as
legal perspectives and challenges. Finally, this article concludes that the Law Number
11 year 2008 on Information and Electronic Transaction and Law Number 44 year 2008
on Pornography is basically enough to counter online sex trafficking however, these
laws needs to be harmonized and synchronized with the current problems emerged in
online sex trafficking.

Keywords: Online Sex Trafficking, Human Trafficking.

INTRODUCTION
With the population of more than 240 million people and the diversity of the citizens
living inside, there are plenty of problems coming up as the consequence of these diversities.
Problems are varies, economically, politically, culturally, etc. The rapid changes going
around in the world for the past 30 years had given so much different in almost all walks of
life, in one side those differences are coming up in a positive way, however in another side it
also open a side for negative things to come up. One of the fastest ever-changing fields since
the earliest human civilization is technology, the fast acceleration of technology had resulted
in much-more advanced human modernization, but again, as trends are getting more so-called
“technologized”, there are currently plenty of technology-based crimes, ranging from
hacking, cracking, and so on. However, when it comes to sex trafficking, technology had
facilitated the criminals with a new perspective of doing crime like never before.
Sex trafficking, as widely known, remains one of the issues in developing countries.
According to Global Report on Trafficking in Persons launched by the United Nations Office
on Drugs and Crime (UNODC) provides information that number of cases in the case of
human trafficking increase significantly in the last 5 years.2 Efforts as well as policies have
been designed to deal with the case. In fact, in developing country such as Indonesia, this
issue is still difficult to overcome. At least, based on observation in so far, there are two
factors contributing to human trafficking; push and pull factor respectively. The first relates
to the situation in the place where the people origin while the second links to the place where
people moves in.
There are several leading factors contributing to trafficking in Indonesia. Including,
criminal networks throughout Southeast Asia traffic young girls and women for sexual

1
Milda Istiqomah, Faculty of Law, Brawijaya University, Email: meeldha@yahoo.com; Kristiyanto,
Faculty of Law, Brawijaya University, Email: Kristiyanto1994@gmail.com
2
UNODC, UNODC Report on Human Trafficking Exposes Modern Form of Slavery,
http://www.unodc.org/unodc/en/human-trafficking/global-report-on-trafficking-in-persons.html, 21 October
2014.
 114

exploitation.3 A lack of awareness when seeking jobs further compounds the vulnerability of
women and children to be trafficked. As a result, approximately 30 percent of sex workers
are younger than 18 years old.4 These lacks of awareness, is a common trend in Indonesia
where people are taking an opportunity without in-depth consideration. Another leading
factor is that corrupt law enforcers and weak enforcement of laws in dealing with trafficking
cases discourage victims from seeking protection and the prosecution of their traffickers.5
The numbers of human trafficking in general and sex trafficking in particular is
always increased dramatically year over year. The latest data from UNICEF showed that an
estimated 100,000 women and children are trafficked from Indonesia annually. These data
only showed the victims who are being trafficked overseas and didn‘t include victims being
trafficked locally, if the local trafficking is included the number is way higher than 100,000.6
Despite there are so many cases going around, again the patterns and types of whether online
or traditional sex trafficking relies the same, they are told they are being recruited by the fake
media, or even close friend, for positions as cultural ambassadors or traditional dancers in
Japan. The recruitment process for Malaysia and Singapore promises them jobs in karaoke
bars and restaurants as singers, hostesses, or even domestic workers. Nevertheless, when the
women arrive in said countries, they are instead forced into providing sexual services. 7 Labor
migration is also common types of human trafficking, legal and illegal, occurs in great
numbers. An estimated 700,000 labor migrants have left Indonesia primarily to work in
Malaysia and countries in the Middle East. Abuse against migrant workers, primarily illegal
workers, is compounded by the fact that labor agencies control most aspects of the migration
process from Indonesia to Malaysia with very little oversight from either government.8
Lack of opportunities, mainly in the villages where people originated has been
recognized despite chronic poverty as the push factor on why people migrates (moves) to
other places. With limited skills and education, villagers can be easily persuaded going to big
cities. Higher wages, wide opportunities and open network are some features that the
villagers perceived on living in big cities. On the other hand, demand on domestic worker and
low-wages unskilled labor for manufacturing and construction industries is higher from time
to time.
Thousands of people migrate from rural to urban areas. Some of them luckily get job
while still many of them are not. For the later, informal business is the most relevant sector
where they can get job though with low wages and no job insurances. These unskilled labor
are mostly undocumented by official agencies and therefore the agencies are difficult to
monitor and control. In most human trafficking cases, the doers are undocumented workers.
However, research in this topic remains limited because of security and access issues.
Human trafficking becomes hot debate where it is known that the issue develops into
other serious crime. One of them is online sex trafficking. As happening now in Indonesia,

3
Deborah Haynes, “International Community Must Fight Child Sex Networks in SE Asia: UN,‖
Agence France Presse, Apr. 19, 2004. See also Brian Calvert, ―In Trafficking Case, Court Balks Again,‖
Cambodia Daily, Feb. 27, 2002.
4
Indonesia: Trafficking fuels commercial sex work, INTEGRATED REGIONAL INFORMATION
NETWORKS (IRIN), June 3, 2009, available at: http://www.irinnews.org/Report.aspx?ReportId=84678.
5
INTERNATIONAL DEVELOPMENT LAW ORGANIZATION, HUMAN TRAFFICKING (2008),
available at: http://www.idlo.int/DOCNews/Human_trafficking.pdf.
6
UNICEF-Indonesia, Overview-Child Protection, Because domestic workers often labor in isolation
and the government provides little regulatory
http://www.unicef.org/indonesia/protection.html (last visited Jan. 28, 2010).
7
Abhijit Dasgupta, An Overview of Trafficking in Indonesia, WHEN THEY WERE SOLD, 2006,
available at: http://solidarityv2.timberlakepublishing.com/files/when_they_were_sold_chapter2.pdf.
8
Press Release, Human Rights Watch, Indonesia: Protection to Child Domestic Workers, Feb. 11,
2009, available at: http://www.hrw.org/en/news/2009/02/10/indonesia-protect-child-domestic-workers.
 115

some metropolitan cities like Jakarta and Surabaya have been operating policy and regulation
on banning prostitution. The closing of Dolly-one of the biggest prostitution area in Southeast
Asia- is now trending topic.9 Surabaya‘s mayor; Tri Rismaharini, has successfully changed
Dolly from prostitution area into children-friendly neighborhood with sufficient support for
developing local business. Indeed, this is one of her achievements as being Mayor. In fact,
the prostitution business is not ended yet.
Being headline in local news, conventional prostitution like Dolly is now changing
into ‗modern type‘ of online business.10 Operated easily like other online business, online
prostitution is now developing into more serious business with transaction of millions
rupiah.11 In this case, the age of prostitute ranges between 19-22 years. Many explanations on
why they are part of the business but most commonly are the economic motives. In relation to
this, social media like Facebook, messengers and the likes are used as media to interact
among people who are in need for prostitution. Cheap, simple and quick are the main
advantageous offered by online prostitution.
As early stated, online prostitution becomes a new trend in the case of human
trafficking. Different to conventional prostitution, the members of prostitution groups do not
necessary have to show up their face or profiles to potential customers. Noted in the case of
online prostitution in Surabaya, East Java, the brothel keeper said that she only shares name,
short picture and tariff to customer. When it comes to business, the prostitute and customer
may arrange their own for place and time. About 30-40% from tariff will be taken by the
brothel keeper for each transaction.12
Another trend and method of online prostitution, as mentioned by a brothel keeper
from Bandung is to set a plan in different city, book the hotel and arrange the time.
Accordingly, ―this way is more beneficial to prostitutes as they get more customers and I get
more money.‖ 13 Due to this scheme, the online prostitution business is hardly founded
physically. From the statement made by accused woman who organized more than 1800
sexual workers in Surabaya, customer starts to ask online prostitution by asking cashier in spa
or beauty center. Then, information is given personally by sharing their PIN or mobile phone
numbers. There are plenty of choices for customer to freely select their preferences. Young
underage girls are the favorite in this case. In Jakarta, the business is also developing. Police
officer who arrested one of the brothel keepers said that the Police has monitored the
operation of online prostitution long time ago, but no report so far. This makes Police
difficult to trace.14

9
Mail Online, Largest Muslim Country in Bid to Shut its Giant Red-Light District - by Paying its 1,500
Prostitutes to Quit Brothels, http://www.dailymail.co.uk/wires/ap/article-2666677/Indonesia-prostitutes-resist-
red-light-shutdown.html, accessed 21 October 2014.
10
The Jakarta Post, Prostitution Goes Online
after Dolly Closure, http://www.thejakartapost.com/news/2014/11/01/prostitution-goes-online-after-dolly-
closure.html, accessed 21 October 2014.
11
TribunNews.com, Online Prostitution Network in Surabaya is Revealed,
http://www.tribunnews.com/regional/2014/08/19/jaringan-prostitusi-online-di-surabaya-terbongkar, accessed 21
October 2014.
12
Tempo.co, Police Reveal Online Prostitution in Surabaya,
http://www.tempo.co/read/news/2014/12/11/058627918/Polisi-Bongkar-Prostitusi-Terselubung-di-Surabaya,
accessed 21 October 2014.
13
JPNN.com, Brothel Owner Received Rp. 5.000.000,- per Week from Online Prostitution,
http://www.jpnn.com/read/2014/08/19/252646/Mucikari-Ekspo-Prostitusi-Online-Minimal-Raup-Rp-5-Juta-
Seminggu-, accessed 21 October 2014.
14
Kompas.com, On Online Prostitution in Indonesia,
http://english.kompas.com/read/2011/01/20/0846533/On.Online.Prostitution.in.Indonesia, accessed 21 October
2014.
 116

Fairly admitted by the Police, online prostitution is an issue that is not easy to solve.
Though the business is accessible and traceable, it is still difficult to stop as the new members
of prostitute are continuously coming. In addition, poverty is no longer the most common
source of problem in online prostitution. Many prostitutes are identified as from rich family
supported with sufficient allowance. For them, joining into online prostitution is part of
modern life style. However, it cannot be theorized so far that such life style contributes to the
emerging and trending of online prostitution.
As online prostitution developed increasingly, the prostitute might be from different
place of Indonesia. Young women from China, Russia, as well as from Morocco and other
countries are found as part of wide network on online prostitution. This can be anatomically
classified into transnational crime where national law and regulations are difficult to enact. It
can be operationalized if one or two countries have arranged special agreement on that case
accordingly. 15 Indonesia has regulated some policies related to online prostitution but not
specifically on the case. For instance, Law 11/ 2008 on information and electronic
transaction. Deeds distribute and / or transmit and / or make accessible electronic information
and / or electronic documents that have a charge of violation of decency.
With the operation of online prostitution as well as human trafficking, initial efforts
have been made. In 2013, there was a ministerial meeting held in Bali named Bali Process
where join cooperation between states were set to overcome this problem. The Indonesian
delegation, represented by the Ministry of Foreign Affairs said that the importance of the
cooperation is undoubted. Accordingly, he mentioned three approaches namely prevention,
early detection and protection. At the operational basis, the rule of civil society on providing
adequate information on the case and intensified awareness of its dangers are very crucial.
Apart from legal and formal approaches to stop online prostitution, there are
alternatives to doing that. One of those is censoring the web content and its patterns. As
technically advised by expert, it is possible to limit the access of prostitution by customer to
prostitution web simply by identifying and blocking the web.16 Besides technical solution, it
is also advised to stop online prostitution by social approaches. At least five ways are
identical to this approach namely social sanction, open employment, education, good
neighborhood and political willingness. 17 Among these five, the rule of the state to stop
online prostitution is very important. Two testimonies from people who are living in ex-Dolly
Surabaya East Java mention that, in relation to good neighborhood, they often felt regretful
and shame whenever their friends ask for address. These people are stigmatized as they live
in the red-light area. 18 Because of this, their family members cannot live socially like it
supposed to be.
In fact, legal enactment and policy resign to deal with online prostitution is not
without challenges. On the ITE Law, there is a voice saying that monitoring media is a form
of violation against human rights and liberation of freedom of speech. As this Law may
enforce to people who are texting, posting and mentioning any words that are considered
‗taboo‘, many opponents to this Law afraid that the Law will be used by ignorant to control
society.

15
Ibid.
16
Techno, Ways to Prevent Online Sex Trafficking,
http://techno.okezone.com/read/2010/02/08/55/301449/banyak-cara-mencegah-prostitusi-online, accessed 21
October 2014.
17
Republika Online, 5 Islamic Ways to Counter Prostitution, http://www.republika.co.id/berita/dunia-
islam/islam-nusantara/14/06/14/n754ld-ini-lima-cara-islam-atasi-masalah-prostitusi, accessed 21 October 2014.
18
Republika Online, Inside the Story of the People Who Live in Prostitution,
http://www.republika.co.id/berita/nasional/jawa-timur/14/06/14/n74cg2-curhatan-warga-asli-lokalisasi-dolly,
accessed 21 October 2014.
 117

Patterns and Types of Online Sex Trafficking in Indonesia

In the last decade, many researches have discussed about criminal network analysis.
Jeffrey Scott McIllwain argues that the power of organized crime is on its network.19 His
report is based on the anthropological approach with qualitative method resulted in a
concluding remarks of the criminal network that is the members of organization need time to
build trust and sense of belonging. He also states that criminal network is a gradual process
that finally entails with more organized action.
Using the different method, Carlo Morselli reviews on the analysis of organized
criminal networks ranging from brokerage position in drug trafficking and hierarchical
organization like Hells Angel in Quebec.20 He reveals that the inaccuracy of relational data
within the network turns out to be challenges of social network analysis.21
Gordon Stovin and Chris Davies claim that academician and practitioner has a gap in
countering organized crime since lack of communication and available case studies is blamed
for this uncoordinated action.22 They argue that social network mapping has a limitation on
explaining the nature of organized crime. This article derived from practitioner‘s perspective
on how to tackle criminal network using hotspot matrix method by Ratcliffe.23
There are plenty of patterns and types of traditional sex trafficking, however with the
new possibility offered by the technology, the criminals are just getting more and more
creative. The basic principles of online sex trafficking are the same in comparison with the
traditional sex trafficking, patterns such as; Recruitment, False Promises, Fraud, Scam and
Deception. The main reason relies the same that most of the victims who are thrown to the
sex prostitution (read: trafficking) is because a classical reason, which is an economic reason.

Picture 1. Patterns of Traditional Sex Trafficking

19
Jeffrey Scott McIllwain, ‗Organized crime: A Social Network Approach‘ (1999) 32(4) Crime, Law
and Social Change [301] <http://www.proquest.com.ezproxy.uow.edu.au/> at 25 September 2014.
20
Carlo Morselli, Inside Criminal Network (2009).
21
Ibid.
22
Gordon Stovin and Chris Davies, ‗Beyond the Network: A Crime Science Approach to Organized
Crime‘ (2008) 2(4) Oxford Law Journal-Policing [497]
<http://policing.oxfordjournals.org.ezproxy.uow.edu.au/> at 25 September 2014.
23
Ibid.
 118

The burden of economy has blinded their eyes to take any possible opportunities
without further and in-depth consideration. In another perspective, it‘s safe and fair to say,
that this is actually the failure of the Government to provide a decent job opportunity for the
victims because people will never go to the world of prostitution if there is a better option of
getting money. Sex trafficking has gone along the way throughout Indonesia, domestic
trafficking occurs to Bali, Bintan, Jakarta, Jambi, Papua, Riau, Surabaya and some other big
city.24
In fact, Indonesia is primarily a country of origin for trafficking in women and
children. Indonesian women and children are trafficked to Southeast Asia, East Asia, the
Middle East, Australia, North America, and Europe.25 Those are the primary area to where
the victims were trafficked to, the demands in those destination is also one of the leading
factors why the conduct of sex trafficking is still going around along the way. The methods
however, could be varies, however, today most of the methods are conducted in a more
techno-based. The traffickers are selling the victims through the internet by uploading their
pictures to a certain website, in which then the sex-consumer (read: sex predator) could
taking benefit of them by having them for nude video-calling or even the traffickers could
sell them into various online sex prostitution services world-wide.
Based on the Kenney‘s network theory,26 the first pattern can be classified as a wheel
network consisting of several cell workers where the core group leader (that is trafficker)
controls decision making authority including trading and distributing where the victim is
trafficked. In some cases, the core group leader remains anonymity and does not affiliate with
their cell workers. On the other hand, in first pattern, the core group leader and cell managers
involve themselves in the most daily matters of everyday operations. Consequently, after
several weeks of running the prostitution under the traditional scheme, the police successfully
raided and arrested the perpetrator within the network.

Picture 2. Patterns of online sex trafficking

24
Ruth Rosenberg, ed., International Catholic Migration Commission and American Center for
International Labor Solidarity Trafficking of Women and Children in Indonesia, 2003,
http://www.icmc.net/pubs/trafficking-women-and-children-indonesia, accessed 21 October 2014.
25
Ruth Rosenberg, Ed. supra at 1.
26
Michael Kenney, ‗The Architecture of Drug Trafficking: Network Form of Organization in the
Colombia Cocain Trade‘ (2007) 8(3) Global Crime [242] <http://dx.doi.org/10.1080/17440570701507794> at
23 October 2014.
 119

Based on Kenney‘s theory,27 the second pattern which show online sex trafficking can
be categorized as the chain network which every chain organizes several core groups by
using internet scheme. The one-on-one transaction28 underlies the sex transaction amongst the
dealer. Even though the core members of a trafficking group have ultimate decision in giving
instruction, the hierarchal command can not be found within this network. The standard rule
of Mafia applies in this network; that is the existence of a broken cell/chain system. Everyone
is only responsible of the stage which they play the role so that the trafficker does not know
one another when maintaining transaction. The traffickers have no clue how to obtain the
victim from suppliers and where the victim is trafficked in the next stage of the consumer
since all of the transactions are conducted through online.29 As a result it will be difficult to
crush their links in the investigation process.

Indonesia’s Legal Perspective and Legal Challenge

Given the fact that 70% of human trafficking case are happening in the field of sex
trafficking, an extraordinary effort need to be cultivated to battle the crime. In order to deal
with the on-going uprising and potential threat regarding human trafficking, Indonesia‘s
government had begun their countless work since 2007 where the first-ever human trafficking
act was officially enacted. The law itself was called the Law Number 21 Year 2007 about the
Eradication of Human Trafficking Crimes, which adopts a comprehensive approach to
address human trafficking. The act contains numerous human trafficking and sex trafficking
crimes as well as the punishment. In addition to that, the Law No. 21 Year 2007 has also
provided numerous guarantees for the fulfillment of the rights of victims, as follows:
1. The right to confidentiality of the identity of victims of crime of trafficking
in persons and their families to the second degree. (Article 44)
2. The right to protection from threats that endanger themselves, life and/or
property (Article 47)
3. The right to restitution (Article 48)
4. The right to receive medical rehabilitation, social rehabilitation,
repatriation and social reintegration of government (Article 51)
5. The victims who are trafficked abroad entitled to be protected and returned
to Indonesia at the expense of the state (Article 54).

Regarding with sex trafficking, the article in the law Number 21 year 2007 which is
most-related towards sex trafficking is article 2 point 1 (one), states:
Everyone who perform the recruitment, transportation, shelter, transfer, or
acceptance of someone with the threat of violence, the use of violence, abduction,
confinement, forgery, fraud, abuse of power or of a position of vulnerability,
entrapment debt or giving payments or benefits even though obtaining the consent of
a person who have control over another person, for the purpose of exploiting such
person in the territory of the Republic of Indonesia, shall be punished of
imprisonment for at least 3 (three) years and a maximum of 15 (fifteen) years, and
fined at least Rp120.000.000,00 (one hundred and twenty million rupiah) and at most
Rp600.000.000,00 (six hundred million rupiah30).

27
Kenney above n 242.
28
Ibid.
29
Ibid.
30
Article 2 (two) point 1 (one) of the Law Number 21 year 2007 about the Eradication of the Crimes of
Human Trafficking
 120

However, in the implementation level, it seems that the need for more advanced
human trafficking law is necessary since the current law is not able to accommodate the
human and sex trafficking crimes which are getting increasingly widespread year over year.
The revised towards the current law is a necessity since the article regarding with sex
trafficking in the current law don‘t have a specific elements in regards with online sex
trafficking, which make the case of current online sex trafficking less of legal certainty.
In order to address that problem, in 2008 Indonesia‘s government made a huge leap-
forward in addressing the phenomenon of sex trafficking, where 2 (laws) are enacted at 2008,
they are; Law Number 11 year 2008 about ITE and Law Number 44 year 2008 about
Pornography. The law number 11 year 2008 about ITE is a regulation governing a wide
online or offline activities regarding the internet usage, however in the context of human or
sex trafficking, there is only 1 (one) article that correlate the most, which is the article 27
point 1 (one) which stated ;
“Every person who is deliberately and without right to distribute and/or transmit
and/or make accessible Electronic Information and/or Electronic Document has a
charge which violates morality.‖ 31

While the Law Number 44 year 2008 about Pornography, there is only 1 (one) article
regarding with sex trafficking, which is written on the article 4 (four) point 1 (one), which
stated :
“Every person is prohibited to produce, create, reproduce, copy, distribute,
broadcast, importing, exporting, offering, reselling, lease, or provide pornography
that explicitly includes:
a. mating, including aberrant mating;
b. sexual violence;
c. masturbation;
d. nudity or displaying nudity-impressed content;
e. genitals; or
f. child pornography.‖ 32

Even though there was an improvement towards the regulation when it comes to the
usage of the internet and pornography in 2008, there are few points that still couldn‘t
accommodate to the problem of online sex trafficking, the Law Number 11 year 2008 about
ITE, couldn‘t be related too much towards the case of online sex trafficking since the
elements isn‘t highly-related towards the human trafficking law. The Law Number 44 year
2008 about Pornography is the same case, where there is a lack of online-elements as well as
there is no further and in-depth relation towards the human trafficking law. However, the
elements of the Law Number 11 year 2008 about ITE and Law Number 44 year 2008 about
Pornography is basically enough to deal with the current problem, something that still lack is
once again, the elements of the Law Number 21 year 2007 about human trafficking that needs
to be harmonized and synchronized with the current relevant laws.
As a consequence, it doesn‘t necessarily mean that the person who commits such
online sex trafficking crimes will not be punished or charged with the laws, the perpetrator
will still get a charged with the certain articles, however it will makes a legal difficulties for
the law enforcement agencies upon which laws or which article applicable towards them,
because there is still less legal uniformity in regards with the case of online sex trafficking
among those laws.

31
Article 27 point 1 (one) of the Law Number 11 year 2008 about ITE
32
Article 4 point 1 (one) of the Law Number 44 year 2008 about Pornography
 121

In conclusion, there are a few ways that our government need to do in order to
maintain and giving more legal certainty towards the case of online sex trafficking, and there
is no better way than to revise the Law Number 21 year 2007 about the Eradication of Human
Trafficking crimes. The revised must be focused upon the articles that have a correlation
towards the internet as the new tool that can be used by the trafficker. Actually, there is also
an international law governing about Convention on this Cybercrime, the definition of that
convention is, international treaty with a provision to combat child pornography on the
Internet, it does not go so far as to explicitly criminalize the use of the Internet to traffic
children or to sell children into sexual servitude. 33 So as a purpose of reference, the
Government could study the content inside the convention and then applied to Indonesia‘s
legal system. There are also various other international law and international convention
regarding with the issue of online sex trafficking which can be used to strengthen the
elements on the Indonesia‘s law of human trafficking, which in the end of the day will
benefit so much towards our legal system which will ended up towards more legal certainty
regarding with the case as well as giving more legal certainty towards the legal enforcer upon
the application of the laws specifically about the crimes of online sex trafficking.

33
Council of Europe, Convention on Cybercrime, Explanatory Report, 6, Nov. 23, 2001, S. Treaty
Doc. No. 108-11, 2001 WL 34368783, 41 I.L.M. 282, C.E.T.S. No. 185 [hereinafter Explanatory Report]
available at http:// conven-tions.coe.int/Treaty/en/Treaties/Html/185.htm , archived at
http://www.webcitation.org/5oockmhYp.
 122

PLENARY SESSION

E-Commerce Law in the Perspective of Intellectual Property Rights and Consumer

Protection Laws

Presenters:

Hudriyah Mundzir
Yuliati
 123

CONSUMER PROTECTION LAWS IN E-COMMERCE TRANSACTION

TO FACE 2015 ASEAN ECONOMIC COMMUNITY

Hudriyah Mundzir and Sri Hudiarini1

ABSTRACT
There are many things to prepare in order to face the ASEAN Economic Community
(AEC) and one of them is in the field of commerce. Recently, 2015 Asean Economic
Community is one of the most-commonly discussed terms in both public discourse and studies
on social or transformational change. Moreover, the use of the internet or cyber net
nowadays allows business transaction to be conducted not only face to face or direct selling
but also online. The internet is considered as an efficient media for business and thus, people
often utilize it for their business activities. The business transactions or activities conducted
by utilizing the internet are then defined as electronic commerce (e-commerce). Furthermore,
e-commerce is devided into two; namely business to business e-commerce and business to
consumer e-commerce. Business to business is indeed more dominantthan the latter due to its
transaction values although the latter has its own potential market share.
Despite its strengths, e-commerce lalso has weaknesses. Using this electronic
transaction method, both the business person and the consumer do not have to meet face to
face. Besides, the consumer cannot directly see the merchandise so it may potentially create
such problems on the consumer side as the inconsistency of the promised merchandise in
terms of its type and quality, its delivery time, and the transaction security. The transaction
security is crucial for the consumer and it is supposed to be seriously taken care of since it
has been proven that there are many cases related with it, for instance credit card fraud,
stock exchange fraud, banking fraud, unauthorized access to a system (hacking), website
defacement, and data forgery.
Such law cases described above and their solutions are actually intended to provide the
consumer protections on the e-commerce transaction even though it is not explicitly
explained. Yet, it implies that the problems are often faced by the consumer and their
solutions can be given both substantially and procedurally. Therefore, the proposed
solutionsabove can be applied to giveprotection for the consumer.
In Indonesia, the law rules the consumer protection is prescribed on UU No. 8 year
1999 about Consumer Protection. Hence, this law specifically does not include the
development of information technology in it. On the other hand, internationally, there have
been agreements especially made to give protection to the consumer in conducting e-
commerce transaction.

Keyword : AEC 2015, Consumer Protection, E-Commerce Transaction

1. INTRODUCTION
Recently, 2015 Asean Economic Community is one of the most-commonly discussed
terms in both public discourse and studies on social or transformational change. With the
emergence of 2015 Asean Economic Community, ASEAN countries should be able to face
global competition. There are several aspects to prepare in order to face 2015 Asean
Economic Community (AEC 2015). One of them is preparation in commerce because it
functions to support economic growth of certain country. The economic growth plays crucial
role due to that all country expect better economic condition and that will be one of the

1
State Polytechnics of Malang, Email: hudrie_mundzir@yahoo.com, hudiarini@yahoo.co.id
 124

indicators indicating the succesfull economic development of certain country. There are many
things that can be done to accelerate the economic growth ranging from managing internal
economic condition of a country to conducting international partnership in all aspects to
contribute on the acceleration of economic growth.
2015 Asean Economic Community is a forum in which the ten member countries of
Asean gather and work together to improve the quality of live of their people. Initially, 2015
Asean Economic Community is intended to function in 2010. However, based on the result of
the 12th KTT, ASEAN countries agreed to accelerate the 2015 Asean Economic Community
and it starts from 2015. There are three supporting factors for the emergence of 2015 Asean
Economic Community. Those are Politics and Security Community of ASEAN, Economic
Community of ASEAN, and Social and Cultural Community of ASEAN. Each factor has its
own purporse and this paper will focus more on 2015 Economi Community of ASEAN. It is
intended to improve economic stability in ASEAN and it is also expected that 2015 Asean
Economic Community will be able to handle economic problems faced ASEAN countries
like economic crisis in Indonesia in 1997.
Concerning 2015 Asean Economic Community, Indonesia expects that it will able
able to bring about transformation for the betterment of Indonesian economy. In one side,
2015 Asean Economic Community is intended to create stability of economic condition of
ASEAN countries. On the other side, it also means that 2015 Asean Economic Community
will liberalize the coming of goods, workers, investments and capitals. Liberalizing goods
inflow means eliminating rules hindering foreign investments. It also means reducing and
omitting tariffs barrier. Liberalizing investment will be realized by omitting all administrative
rules hindering capital investment, meaning that it will be easy for everybody coming from
all countries in ASEAN to invest their capital. In addition, employees from all ASEAN
countries will be free to find occupation accross those countries.
Concerns come up reflecting doubts on whether Indonesia is ready to face 2015
Asean Economic Community or not. It is due to problems faced by business sectors in
Indonesia such as the coming of Chinese goods with more reasonable price. China occupies
Indonesian domestic market and it can destabilize Indonesian economy. We do not expect
that 2015 Asean Economic Community give negative impact on our local product and
enterprises. We also do not expect that micro scale, small and middle scale business
enterprises break down to to their inability to compete with the product of other Asean
cpuntries.
For the preparation to face 2015 Asean Economic Community, the government of
Indonesia joined the World Summit on The Information Society (WSS). Based on the result
of the meeting, Indonesia sets target that by 2015 half of Indonesian population should be
able to access Information and Communication Technology (ICT). 2 Indonesian government
provides full support on the development of information technology to accelerate economic
growth. It is expected that the acceleration of economic growth will transforms culture of
conducting transaction in commerce. The afore-mentioned cultural change is using electronic
media to communicate and conduct business through the use of internet. Electronic
commerce or e-commerce is one of the forms of internet-based business. E-commerce is
process of purchasing, selling or exchanging products, services and information through
computer network.3 It is also defined as distributing, purchasing, marketing and delivering

2
Maharani, Diah Arum, dkk. 2011. Kajian tentang Persepsi Masyarakat terhadap Pemanfaatan E-
Commerce,Jurnal Penelitian Pos dan Informatika, ISSN. 2088-9402 VOL 1 No. 2 Desember Tahun 2011 hal 96.
3
Siregar, Riki R. 2010. Strategi Meningkatkan Persaingan Bisnis Perusahaan dengan Penerapan E-
Commerce.http://blog.trisakti.ac.id/riki/2010/03/12/strategi-meningkatkan- persaingan- bisnis- perusahaan-
dengan-penerapan-e-commerce/. diakses tanggal 01 Agustus 2011.
 125

service of related product which is conducted through electronic system such as internet or
other computer networking.4
E-commerce and other computer-based activities are able to be driving force to
accelerate economic growth of Indonesia because it can integrate domestic and international
commerce in single electronic transaction. E-commerce enables us to conduct not only direct
(face to face, direct selling) but also indirect business by using this technology. However, E-
commerce also has weaknesses. One of them is that by using electronic transaction,
businessmen and costumers do not meet directly and it could be the source of problem.
Another source of problem that potentially put costumer in har mis that costumer could not
directly see the product. The other problems are differences on types and quality of received
product, ill-timed delivery and insecure transaction. The security of payment method
becomes key concerns on the part of consumer because there are many cases in E-commerce
related with transaction security such as credit card fraud, stock exchange fraud, banking
fraud, unauthorized access to information system (hacking), web site hacking and data
stealing.
Based on the above background, the writer intends to present discussion on how to
protect costumers in E-commerce transaction to face 2015 Asean Economic Community.

2. REVIEW OF LITERATURE
A. Definition and types of E-Commerce
Up to now, there is no standardized and commonly-agreed definition on E-commerce. It is
due to that different experts give different emphasis on e-commerce. However, there is
general definition on E-commerce,5 which is as follows
“e-commerce is dynamic set of technologies, applications, and business process that
link enterprises, consumers, and communities, through electronis transactions and the
electronic exchange of goods, services, and information.”

According to Laudon and Laudon (1998),6 e-commerce is a process of purchasing and

selling product through electronic system by costumer and/or from company to company by
using computer as medium of business transaction. Kalakota and Whinston (1997)7 provides
different definition on e-commerce. They stated that the terms can be viewed from three
different perspectives. Those are:
1. From communication perspective, e-commerce is delivering goods, services,
information or payment through computer network or other electronic devices.
2. From business process perspectives, e-commerce is application of technology toward
automated process of business transaction and work flow.
3. From service perspective, e-commerce provides facility to purchase and sell goods or
information through internet and other online facilities.

Based on its characteristics, there are two types of e-commerce.8

1. Business to business. Its characteristics are

4
Rahmawati, 2009, Pemanfaatan E-Commerce dalam Bisnis di Indonesia,
http://citozcome.blogspot.com/2009/05/pemanfaatan-e-commerce-dalam-bisnis-di.html . diakses tanggal 6
Agustus 2011.
5
Baum, David, 1999.Business Links, Oracle Magazine, No. 3, vol. XII, May/June, 1999, pp. 36-44.
6
Laudon, Jane dan Laudon, Kennetth C. 1998. Essentials of Management Information Systems. New
Jersey : Prentice Hall.
7
Kalakota, Ravi dan Whinston, Andrew B. 1996. Electronic Commerce : A Manager‟s Guide. Boston :
Addison-Wasley Professional, 1st Edition.
8
Purbo, Onno W. Dan Wahyudi, Aang Arif. 2001. Mengenal e-Commerce. Jakarta : Elex Media.
 126

a. There are trading partners who know each other well enough and they have long
term relationship.
b. There is continuous and periodical data exchange using the commonly-agreed data
format.
c. One of the parties does not depend on the other party to send data.
d. The commonly-used model is peer to peer, in which intelligence distribution could
be done to both.
2. Business to Consumer. Its characteristics are
a. It is open for public and the information are disseminated publicly. Services used
can also be used by all people.
b. Client-server approach is commonly applied.

E-commerce is going to transform all marketing activities as well as reducing operational

cost for trading. E-commerce commerce process is as follows.9
1. Electronic presentation (website development) for product and service.
2. Order is processed directly and bill is automatically given.
3. Automating consumer accounts is save (both account number and also credit card
number).
4. Direct payment (online) and transaction handling.

B. Consumer Protection
Consumer protection in Indonesia is regulated under Law no 8 of 1999 on Consumer
Protection. It reflects all efforts to provide rule of law in order to protect consumer. In fact,
the law is not sufficient to cover the development of information technology including E-
commerce. However, the law is imposed by government toto protect consumer on the
national level
Consumer protection law covers several consumer rights. They are: 1) right to get
comfort, security, and safety to consume goods and/or services; 2) right to select and
obtain goods and/or services which are in line with its exchange rate and condition an d
guaranty; 3) right to obtain right, accurate and genuine information; 4) right to deliver
complaints; 5) rights to obtain law defense; protection and solution for dispute
concerning consumer right; 6) right to obtain education and training on consumer; 7 )
right to obtain treatment and service properly and non discriminatively; 8) right to
obtain compensation/ indemnity and/or replacement if goods and/or services received
are not in line with the agreement.

3. DISCUSSION
E-commerce is one of the needs in business. E-commerce is also supporting factor to
accelerate economic growth with the coming of ASEAN Economic Community of 2015. In
the context of economic growth, E-commerce reflects one of the efforts to expand or enlarge
market in order that Indonesian market can compete with those of foreign countries in
ASEAN Economic Community of 2015. E-commerce has strengths and weaknesses. One of
the strengths compared with conventional commerce is the availability of various and
detailed information which can be accessed by consumer. Through internet, for example,
consumers are able to obtain numerous informayion on goods and services from many
websites providing advertisement of various brands of product equipped with product
specification, prices, terms of payment, delivery and even track and trace facility which

9
Irmawati, Dewi, 2011. Pemanfaatan E-Commerce dalam Dunia Bisnis, Jurnal Ilmiah Orasi Bisnis –
ISSN : 2085-1375, edisi ke-VI, November 2011.
 127

enable consumer to trace their order. Those will give benefit to consumers because their need
of product and services could be fulfilled. Besides, consumers are also able to select types
and quality of product and services based on their need and budget efficiently.
Besides their strength, E-commerce also has weaknesses. Electronic tansaction in E-
commerce prevents face to face meeting on the part of consumers and suppliers and
consumers cannot observe the product directly. Those weaknesses might be disadvantageous
on the part of consumer. Other problems faced by consumer are differences in terms of types
and quality of product received with those advertised, ill-time delivery and insecurity of
transaction. Securities issue such as payment method security is crucial for consumers. It
needs special attention dua to many E-commerce cases regarding transaction security such as
credit card fraud, stock exchange fraud, banking fraud, and unauthorized access to
information system (hacking), website hacking and data forgery.10
Cases concerning transaction security in E-commerce are disadvantegous for
consumers. Therefore, guaranty in E-commerce transaction is needed to develop consumer
trust. The lack of security guaranty will reduce the benefit of E-commerce and in turn it will
hinder the effort to develop E-commerce.
Discussion on legal problems and their solution is intended to protect consumer in E-
commerce transaction. It is expected that we can formulate substantial and procedural
solution for problems faced by consumer in order to protect consumer. Asril Sitompul stated
that security is crucial issues in the use of electronic media especially internet [10]. Without
security guaranty, businessman won‘t use this media. To obtain that security, we should all
pay attention on company location so that in case there is law dispute, we know exactly legal
standing of the company offering products through internet.
In one side, the above condition gives benefit for consumers because they can
fulfill their need of goods and/or services and they are free to select types and/or quality
of products based on their needs and budget. On the other hand, the afore -mentioned
condition breaks the balance of consumer-company positon and consumers are in
disadvantegous position. Consumers will be the business object of company to get as
much profit as possible through promotion, way of selling, and application of
standardized agreement which is disadvantageous for consumers.
As stated in Law of Consumer Protection, the purpose of consumer protection is
1) to improve consumers‘ awareness, capability and independence to protect
themselves; 2) to improve consumers‘ value and dignity by preventing them from
negative access resulting from the use of goods and/or services; 3) to improve
consumers‘ empowerement in selecting, determining and demanding their right as
consumers; 4) to create system of consumer protection covering rule of law and
information exposure and access for information; 5) to develop companies‘ awareness
on the importance of consumer protection so that they will be genuine and responsible
doing their business; and 6) to improve quality of goods and/or product assuring the
viability of production of goods and/or services, health, comfort, security and safety on
the part of consumers.
The main weakness of consumers is low level of awareness of their right, which
is mainly due to their low level of education. Thus, law of Consumer Protection is
intended to be legal basis to empowerment activity for consumers through training and
education. Law of Consumers Protections also regulates rights and responsibilities of
companies as well as their prohibition. The law is intended to protect consumers and

10
Elwina, Marcella, 2013. Aspek Hukum Transaksi (Perdagangan) Melalui Media Elektronik (E-
Commerce) di Era Global : Suatu Kajian Perlindungan Hukum terhadap Konsumen. Jurnal LegalityISSN 0854-
6509, ejournal umm.ac.id vol 20 no 2 (2013) September 2012-Februari 2013.
 128

describes right and responsibilities of consumers. However, protection of concumers‘

right in E-commerce transaction is not sufficient though Law of Consumers‘ Protection
because, though it states clearly rights and responsibilities of consumers, it is not
appropriate to be applied in E-commerce transaction. The development of science and
technology in production process of goods and/or services is not anticipated by existing
laws and regulation.
Besides the afore-mentioned right, consumers also have responsibilities which are
intended to protect them from their carelessness. The responsibilities are reading or following
information and procedures of using and utilizing goods and/or services for their security and
safety; possessing good willingness in purchasing and/or services; paying for goods and/or
services using the agreed exchange rate; and obtaining solution for legal dispute of
consumers‘ protection properly.
Besides right and responsibility of consumers, companies also possess their own
rights and responsibilities to fulfill consumers‘ right. There is also some prohibitions on the
part of companies which if they are violated, administrative, criminal and indemnity saction
will be charged upon the company. Those prohibitions are as follows:
1) To produce and sell goods and/or sercises which is not inline with existing standards;
doesn‘t reflect the net weight, net content or netto and it is different with the
condition, guaranty, privilege and efficacy stated on label of the product.
2) To offer, promote, advertise goods and/or services improperly and/or it is pretended
that a certain type of good has fulfilled certain quality standard, has special discount,
has special types, haracteristics, history or certain usage; the good is good and/or new;
and doesn‘t have hiddent defect.
3) To produce advertisement containing false, or inaccurate information.
4) To put fixed clause stating referral of responsibility of company; stating that
company has right to deny restitution of purchased product or money paid by
consumers; declaring to get power from consumers directly or indirectlt to conduct all
activity related to product purchased by consumers by instalment; declaring the
consumers‘ obedience on the new rules, additional rules, continuation and/or change
of rule conducted by one party; to put fixed clause which its forms and positions are
hard to see or couldn‘t be read clearly or hard to interpret.

Consumers in e-commerce also face certain threat in conducting their activities. Diah Arum
Maharani formulates those threats in E-commerce. Those are as threats that are potentially
faced when using E-commerce mechanism:11
1. System Penetration
People having no authority to access computer may do many things as he wants.
2. Authization violation.
To violate or misuse of legal authority from person having rights to access a certain
system.
3. Planting.
To put certain thing in a system which is considered legal but in the future, it might be
condered the other way around.
4. Communications Monitoring.
Someone is able to monitor all secret information by making simple communication
to communication network
5. Communications Tampering.
11
Sitompul, Asril, 2004.Hukum Internet : Pengenalan Mengenai Masalah Hukum di Cyberspace,
Bandung : Citra Aditya Bakti.
 129

It includes all things that may harm somene‘s secret without penetrating a system
such as changing transaction information or making fake server system to deceive
people to give their secret information voluntarily.
6. Denial of Service.
Preventsomeone to access information, resources and other facilities.
7. Repudiation.
Deny for transaction or communication intentionally or unintentionally.

Despite the above threat in E-commerce, there many benefits given. According to
Dewi Irmawati, E-commerce benefits many people, such as:

For Organization
1. Expanding market to cover national and global market so that company could reach
more consumers, select the best supplier and establish partnership with the best
partner.
2. Pressing cost of composing, processing, distributing, saving and accessing paper-
based information.
3. Pressing cost of supply and overhead by facilitationg the management of chain value
of ―pull‖ type in which the process is started from facilitating consumers and using
just in time manufacture.
4. Improving employees‘ productivity through process business engineering.

For Consumers
1. Enabling consumers to shop or do other transaction simultaneously (7 days 24 hours).
2. Providing more product options and supplies to consumers.
3. Enabling consumers to obtain more reasonable product and services because they can
shop in many places simultaneously and compare the prices.
4. Providing digitalized product and quick and real time product delivery.
5. Enabling consumers to interact with other consumers in electronic communities and
share ideas and experience.
6. Enabling consumers to take part in virtual forums.

For Public
1. It enables more people to work at home.
2. It enables the seling of certain types of goods with reasonable price.

E-commerce also possesses positive and negative impact. Devi Irmawati stated that its
positive impacts are: 1. New revenue stream which is more promising and it cannot be
provided by traditional transaction system; 2. It improve market exposure; 3. It reduces
operating cost; 4. It expands global reach; 5) it improves consumers‘ loyalty; 6. It improves
supplier management; 7. It shorthens production times; 8. It improves value chain. Its
negative impacts are: 1) direct financial loss due to fraud. A deceiver transfers money from
one account to others or replaces existing financial data; 2) stealing valuable secret
information. Someone may uncover all secret information and give them to unauthorized
person and it will be disadvantegous for the victims; 3) loosing business opportunity due to
service problems. This is non technical problems such as sudden blackout; 4) access to
system by unauthorized person. For example a hacker who hacks banking system and transfer
money from several persons‘ account to his own account; 5) loosing consumers‘ trust. It is
due to several factors such as someone who deliberately try to ruins company‘s reputation; 6)
 130

unexpected loss. It is caused by problems, dishonesty, improper business pratices, human

error, or system failure.
Law of Consumer Protection strictly states that efforts to protect consumers are
done due to expansion of global business called ASEAN Economic Community of 2015.
More exposure of national market resulting from economic globalization should guaranty
improvement of people welfare and quaranty on quality, number, and security of goods
and/or services from market
From the above mentioned discussion, it is clear that there is a need for special rule
for consumers‘ protection especially for those conducting business transactions using
electronic technology (E-commerce). Law no 11 of 2008 on Electronic transaction and
Information and Law No 8 of 1999 on Consumer Protection are too general to provide
regulation on E-commerce. Thus, there is a need for regulations on consumers‘ protection in
E-commerce. It is due to that the existing laws regulating consumers‘ regulation do not cover
the need.

4. CONCLUSION AND RECOMMENDATION

From above discussion, the writer draws the following conclusion:
1. In facing 2015 ASEAN Economic Community, there is development of information
technology resulting in global transformation which in turn developing new
commerce activities and one of them is transaction or trades using electronic media
(E-commerce transaction).
2. To protect consumers in E-commerce, there is a need for special lawscontaining
regulations to protect consumers. However, the existing laws do not cover protection
for consumers in E-commerce. It is due to special characteristics of E-commerce
especially transnational transaction across national legal borders. Using those special
laws, consumers‘ rights as user of electronic technology in E-commerce could be
guarantied.
3. Consumers should be prudent and carefull in doing electronic transaction (E-
commerce transaction) in order to prevent themselves from financial loss.
Advertisements by vendor in internet, for example should be examined carefully
especially if it is related to offering, promoting or advertising goods and/or services.
 131

LEGAL PROTECTION OF REGISTERED TRADEMARKS OWNER AS INTERNET

DOMAIN NAMES ON E-COMMERCE IN INDONESIA1

Yuliati.,SH.LL.M2

ABSTRACT
A trademark is a sign that individualizes the goods of a given enterprise and
distinguishes them from the goods of its competitors. Trademarks are important because they
are use to identify the source of goods or service. Meanwhile, internet domain name is an
easy name to remember when someone access on to a web site. It is a unique map consist of a
serial number related to internet protocol (IP) which circulating address on internet. More
over, internet domain names act as the first link between the physical world and cyberspace;
they are a prerequisite for engaging in electronic commerce. Internet domain names allow
users and search engines to locate businesses and other web sites on the Internet. These
names are online source indicators and they are increasingly being used to identify the
source of a good or service available online, a function conventionally served by trademarks
The developing regulation on trademarks law and domain names law in Indonesia
has create an interface problems between trademarks and internet domain names
particularly on e commerce activities. The legal frame on trademarks law base on
territoriality principle whereas internet domain names law is borderless law regardless the
jurisdiction of a state.
This paper will examine carefully the legal issues related on Legal Protection Of
Registered Trademarks Owner As Internet Domain Name On E-Commerce In Indonesia as
follows: To what extend Indonesia Trademarks Law a well as Indonesia Electronic
Transaction And Information law provide an adequate protection to Registered Trademarks
Owner As Internet Domain Name On E-Commerce In Indonesia.

Keywords: trademarks, domain names, e-commerce

A. INTRODUCTION
The issues surrounding intellectual property rights have nowadays becoming foremost
topic, however it is useful to know the basic concepts of intellectual property rights before
discuss it in more detail. Unlike real property, intellectual property is an abstract object which
is quite difficult to understand, as it is intangible rights. Mc Keough and Stewart state that:3
―Intellectual property is a generic term for various rights or bundles of rights which the law
accords for the protection of creative effort, or more especially for protection of investment in
creative effort.‖ Meanwhile Rose and Wasserman give more clear definition :4―Intellectual
property refers to legal rights in a new idea that are covered by copyrights, patents and
trademarks. The terms also refers to new forms of creative endeavor such as computer
software, integrated circuit and future technological advances‖. Moreover, August divides
clearly intellectual property into two categories. The first category is copyrights which
includes artistic property such as artistic works, literary and musical works. The second is

1
This is the first draft, do not cite any part of this paper without permission of the author
2
Faculty of Law, Brawijaya University, yuliaticholil@ub.ac.id, yuliaticholil@gmail.com, http:
//www.ub.ac.id
3
Mc Keough, J and Andrew Stewart, ―Intellectual Property in Australia‖, 2nd edition, Butterworth,
Sydney, 1997, p. 1.
4
Ross and Wasserman, ― The GATT Uruguay Round: A Negotiating History (1986-1992)‖, Kluwer
Law and Taxation Publishers, Deventer, Boston, 1993,p 9-10.
 132

industrial property which covers invention such as patents and also trademarks. 5 In
conclusion, intellectual property is a group of rights which give protection to humans
intellectual works which are have commercial values. In addition, the basic differences
between copyright and industrial property right is copyright protects expression of ideas in
tangible forms whereas industrial property right protects products or services which
generated from those ideas.6
Intellectual Property Rights have two concepts, the first concept is concerning with
the result of human intellect such as ideas, inventions, literary, arts, trademarks and so on.
Whereas, another concept is a legal concept which define as follows : ― IPR is a generic term
embracing a diverse group of legal rights designed to protect the outcome of innovative
thought and action which will ultimately yield a benefit of an economic or cultural kind in
relation to human needs or wants of various kinds‖.7
There are two kinds of IPR, firstly is Industrial Property rights including Patent,
Trademarks, Designs, Trade Secrets and Lay Out designs of Integrated Circuits. Secondly is
Copy Rights including Literary and Artistic Works.8
There are two arguments which support IPR protection as Jill Mc Keuogh and
Andrew Stewart maintain that there are moral and economic arguments. Based on moral
argument a person who has been done a creative work deserve to have natural right to be
entitle with one‘s creation as it recognized on article 27 (2) Universal Declaration of Human
Rights: ―everyone has the right to the protection of the moral and material interest resulting
from any scientific, literary or artistic production of which he is the author‖. Based on
economic argument, it can be said that every creative process need some expenses, time,
efforts as well as risks that must be pay off.9Furthermore, legal protection of IPR are also
important to encourage people doing an innovative research and to protect unfair
competition. In addition, the adequate legal protection on IPR will create reward cycles to the
inventor, the business entity, as well as a whole society.

B. The Developing On Indonesia Trademarks Law

World Intellectual Property Rights (WIPO) defines trademarks as follows:
―trademarks as any signs that individualizes the goods of a given enterprise and distinguishes
them from goods of its competitor‖10Meanwhile article 15 TRIPs says:
Any sign or any combination of signs, capable of distinguishing the goods or service
of one undertaking from those of ather undertakings, shall be capable of constituting a
trademarks. Such signs, in particular words including personal names, letters,
numerals, figurative elements and combinations of colours as well as any combination
of such signs shall be eligible for registration as trademarks…

More over, WIPO states that there are two basic elements that can be use as
trademarks. The first element is any signs including words and phrases, pictures and symbols,
letters and numerals, devices, colors, three dimensional signs, audible signs and olfactory
signs. Moreover, the second element is capable to distinguish.11The distinctive signs means a
sign can be distinguish goods or services from others when it applied as identity of goods or
5
August, Ray, ―International Business Law‖, 2nd edition, Prentice Hall, New Jersey, 1997, p.430.
6
―Submission to the Intellectual Property and Competition Review‖, Department of Industry, Science
and Resources November 1999, P. 31.
7
Stephen Crespi, IPRS under siege: first Impressions of the Report of The Commission on IPR, EIPR,
2003, 25(6), p.243
8
WIPO Reading Material, Geneva, 2005, p. 4
9
Mc Keough, J and Andrew Stewart, op.cit, p.16-17
10
‖Introduction to Trademark Law and Practices, a Basic Concepts‖, Geneva, 1988, p.46
11
WIPO Reading Material, op.cit, p.23-26
 133

services in marketplace. For example the word ―apple‖ can be applied in various ways. The
word ―apple‖ cannot be registered for trademark of apple fruit because it is too general,
whereas, it can be registered as trademark of a company that sells computers because it is an
inherently distinctive because there is no relationship between ―apple‖ and computers.
Furthermore, a picture of apple with a bite taken out can be registered as a trademarks
because it is a distinctive symbols. ( Ferrera et.al, Cyber Law,2004:50)
Comparing to copyrights or patents, trademarks had had legislation since Indonesia
under the Dutch colonization. Indonesia became member of Paris Convention since 1934. 12
The first industrial property act which enacted by the Dutch government was Reglement
Industrieele Eigendom Kolonien, staatsblad 545 the year of 1912.13 The aims of regulation is
to protect the Dutch companies and their trade marks against counterfeiting goods in the
market.14
At independence Era, the Indonesian government decided to review all the prior
Dutch law and adopted into its legal system, with some consideration.15 In respect of trade
marks law, the Indonesia government still enforced it until 1961, when the new Trade Marks
Act 21 of 1961 was replaced the previous one.16 The Trade Marks act 21 1961 applied first
use principle, it means that a person who registered a trade mark is assumed as the owner of
the trade mark. Directorate General Copyright, Patent and Trade Mark only registered the
application without conducting any searching or examination. More over, it did not provide
publication or opposition to trade mark registration.17In practice, It created many problems.
The most important case is Nike case ( Nike International Ltd. v Lucas Sasmito and DCPT).
The plaintiff is American shoes company, the owner of the Nike trademark while the
defendant is an Indonesian shoes manufacture who registered Nike trademarks for the first
time in Indonesia. The decision of The Central Jakarta District Court and The High Court are
same, They said that based on the Trade Marks Act 1961, the defendant is the owner of the
trade marks, since he registered the trade mark for the first time.18 However, the decision of
the Supreme Court is different. The Supreme Court found that there are some mistake in
applying law, the Supreme Court said that It was not wrong to decide a case base on the act,
however, it can not applied literally without enough consideration. In fact, the defendant
deliberately used and registered the trade marks without good faith because he has enough
knowledge that Nike is famous trade marks including in Indonesia even though the owner of
the trademark has never been registered it. 19 The Supreme Court order are : granted all
plaintiff claims, declared that the plaintiff is the owner of the trade mark, canceled
registration of Nike on behalf of the defendant‘s name, gave order to Directorate General
Copyrights, Patents and Trade Marks to delete Nike trade mark on behalf on defendant‘s
name from the Trade Marks Gazette. 20 This case laid a new milestone in Indonesia trade
marks law, because the Supreme Court decision can be used as a reason of Minister of Justice
Decree no. M02-IIC.01.01.1987 Which regulates ground of rejection of registration of trade
marks which have similarity with well-known marks.

12
Djumhana, Muhammad and R. Djubaedillah, ―Hak Milik Intellektual‖, Sejarah, Teori dan Praktek di
Indonesia, Citra Aditya Bakti, Bandung, 1993, p.118.
13
ibid
14
Keyzer, Patrick, ―Trade Marks Law and Practice in Indonesia‖, AIPJ, vol.10, Pebruary 1999, p.7.
15
see supra note 9, p.157. see also article 37 1945 Indonesia constitution.
16
see supra note 78, p. 119.
17
Gautama, Sudargo, ―Segi-Segi Hak Milik Intelektual‖, Eresco, Bandung, 1995, p.19
18
see supra note 83, p. 20.
19
ibid.
20
Nike Case, The Supreme Court Decision , 16 Pebruari 1987, Reg. No. 220PK/Perd/1986.
 134

In 1992 the Indonesia government enacted a new Trade Marks act 19 of 1992 to
replaced the old one, it came into force in 23 July 1992. 21There are two consideration to
revised the trademarks law. First, the declaration system which used in previous act has
created some conflict in practice. Second, the government thought that it is important to
change the act in accordance with the development of trade regionally and internationally.22
Comparing to the Trade Marks Act 1961, the new act adding some important
provision related to trade marks protection. For instance, definition, registration, infringement
and enforcement.
The Trade Marks Act 1992 provides a wider definition including service marks and
collective marks which has not been covered by the previous act.
Article 1 the Trade Marks Act 1992 as follows:
(1) Marks means a signs in the form of picture, name, words, letters, number,
composition of color or combination of said element, having distinguishing features
and used in trade in goods and services.
(2) Trade Marks is a mark that used on goods which are traded by person or jointly by
several person or legal entity to distinguish the goods from other similar goods.
(3) Service Mark is a mark that used for services traded by person or jointly person by
several persons or legal entity to distinguish the service from other similar services.
(4) Collective mark is a mark that is used on goods or services having the same
characteristics which are traded jointly by several persons or legal entities to
distinguish the goods or services from other similar goods or services.

The Trade Marks Act 1992 has changed the Declarative System into the Constitutive
System, it means that in order to obtain a trade mark, one has to use and register the trade
marks. The purpose of the system is to eliminate action of unfair competition and to reduce
counterfeiting goods.23
An application for registration can be rejected if trade mark contains one or more elements
such as states on article 5 Trade Marks Act 1992 as follows:24
A mark can not be registered if :
a. against morality or public order;
b. has no distinguishing feature;
c. became public domain;
d. related to goods or services for which the application is pending.

Article 6 says that an application for registration can be rejected if a mark has
similarity in its essential part or in its entirety with a mark owned by another person which
has been previously registered for the same kind of goods or services.25
The trade marks act 1992 also introduces right of opposition which was not existed in
previous act. 26 The trade mark act gives protection for ten years and can be extended for
additional period of ten years.27In Addition, it also accommodates trade marks registration
with priority rights.28

21
see supra note 9, p.168.
22
Consideran of Trade Marks Act 19 of 1992.
23
see supra note 78, p.140.
24
Article 5 Trade Marks Act 1992.
25
Article 6 Trade Marks Act 1992.
26
Article 22-23 Trade Marks Act 1992.
27
Article 7 Trade Marks Act 1992.
28
Article 12-13 Trade Marks Act 1992.
 135

In respect of infringement, the most important changes in the Trade Marks 1992 was
the implementation of constitutive system and protection to well known mark and addition
provision related to service marks and collective marks.
The Trade Marks Act 1992 applied higher sanction than the previous act, both civil
sanction as well as criminal sanction. The owner of a registered mark can take civil action
against a person or legal entities that uses the owner‘s mark which is similar in essentially or
entirety. The owner can also claim for compensation and to stop the use of mark. 29 Any
person deliberately using a mark that is in entirely similar to a registered mark owned by
another person or legal entity to produce and or trade the same type of goods or services shall
be sentenced to imprisonment for seven years and fined Rp.100,000,000.30 All action that
mention on article 81 is categorized as a felonies.31
On the whole, it is obvious that the Trade Marks act 1992 provides better protection
than the previous one, it seem that not only to fulfill legal needed but also to response from
international complaint such as the United states and France which said that Indonesia trade
mark system contributes counterfeiting goods.32
In 1994 Indonesia government ratified the Agreement establishing the World Trade
Organization,33 which the TRIPs is part of the agreement. As a result, Indonesia government
bound by TRIPs requirements. It is obvious that Indonesia government has changed
intellectual property rights law dramatically. 34 Since, only one year Indonesia government
enacted three new acts related to intellectual property, namely, the Copyrights Act no.12 of
1997, the Patents Act no.13 of 1997 and the Trade Marks Act no.14 of 1997 meanwhile at the
same time Indonesia Government also join with Paris Convention without reservation 35 .
Moreover, Indonesia also ratified the WIPO Copyrights Treaty, 36 the Bern Convention37, the
Patent Cooperation Treaty38 and the Trade Mark Law Treaty39.
In the area of trade marks law, there are some significant revision and addition in
order to comply with TRIPs requirements. For instance, registration of well known mark,
regulation on geographical indication, implementation higher sanction and new remedies.
The Trade Mark Act 1997 has added some provision in order to provide clearer and
better protection to well known mark.40 Article 6 The Trade Mark Act 1992 has amended by
adding some provisions, so that the whole article 6 states as follows41:
(1) An application for registration of a trade mark shall be refused by trademark office
if it has a similarity in its essential part or in its entirety with a trade mark owned by
another person which has previously been registered for the same kind of goods or
services.
(2) An application for the registration of a trademark shall be refused by the Trade
Mark Office if:

29
Article 72(1) Trade Marks Act 1992.
30
Article 81 Trade Marks Act 1992.
31
Article 83 Trade Marks Act 1992.
32
see supra note 83,p. 18.
33
with enacted Law no.7 of 1994.
34
―Intellectual Property Law passed‖, the Jakarta Post, 22 March 1997.
35
―New Changes in Indonesian Intellectual Property Law‖, Indonesian Law and Administration
Review 34, 1997, p.38,49. see also Presidential Decrees 15of 1997.
36
with enacted Presidential Decrees 19 of 1997.
37
with enacted Presidential Decrees 18 of 1997.
38
with enacted Presidential Decrees 16 of 1997.
39
with enacted Presidential Decrees 17 of 1997.
40
Kesowo, Bambang, ―IPR in Indonesia Today: Challenges and Opportunities‖, Workshop on IPR and
Economic Development, Jakarta 2 october 1996, p.2.
41
Article 6 Trade Marks 1997.
 136

a. it constitutes the name of a famous person, photograph, and the name of a legal
entity belonging to another person except with the written consent of the entitled
parties;
b. it constitutes an imitation or a resemblance of a name or abbreviation of a name,
flag or coat of arms or symbol, or an emblem of state, or a national or international
institution except with the written consent of the competent authority;
c. it constitutes an imitation or a resemblance of an official sign or seal or stamp used
by a state or a government institution, except with the written consent of the
competent authority; or
d. it constitutes or resembles to a creation of another person which is protected by
copyright, except with the written consent of the copyright holder.
(3) The Trademarks office may refuse an application for registration of a trademark
which has a similarity in its essential part or its entirety with a trademark which is
already renowned belonging to another person for the same kind of goods and or
services.
(4) The provision as referred to in paragraph (3) may also apply to goods and or
services which is not of the same kind provided that it fulfills certain requirement as
shall be further regulated by a Government Regulation.

Furthermore, the Trade Marks Act 1997 also gives opportunity to the owner of
unregistered well known marks to propose cancellation of unauthorized used of well known
mark after lodging application for registration42. The law suit can be filed against the owner
of the trade mark and the Trademark Office. In case of the owner of well known mark
domiciles outside Indonesia, any claim shall be filed in the Central Jakarta District Court.43 In
addition, the Trade Marks Act 1997 also allows an application for registration which covered
more than one class of goods and or services.
The Trade Marks Act 1997 provides new remedies which previously can be found in
Common Law system. In case of infringement, the owner or the licensee of registered mark
can file a claim to the court to stop the use of the mark (similar to injunction) while the case
is still in process 44 . More over, the owner or the licensee can also file a claim for
compensation (similar to damages) and order to delivery up of the goods using unauthorized
mark or to pay the profit that may be obtained by the owner (similar to account of profit) 45. In
addition, it also give power to the investigator to conduct examination in particular area
where the evidence might be found(similar to Anton pillar order).46
To sum up, it can be said that the TRIPs agreement has considerably influenced to the
trade mark law reform in Indonesia. Since, most of the amendment of the current act in line
with the TRIPs requirement. In addition, in order to comply with the TRIPs provision,
Indonesia government has adopted some remedies which has been existed in Common Law
System.
The newest Indonesia trademarks law is the law number 15 the year of 2001. Most of
the features of the new law is very much similar to the previous ones. For example, the basic
definition concerning with marks 47 , trademarks 48 , service marks 49 and collective marks 50
42
Article 56(3,4) the Trade Marks Act 1997.
43
Article 56 (5) the Trade Marks Act 1997.
44
Article 74 (1) the Trade Marks Act 1997.
45
Article 74 (2) the Trade Marks Act 1997.
46
Article 80 (2d, 2e) the Trade Marks Act 1997.
47
Article 1 point (1) The Trademarks Law 2001
48
Article 1 point (2) The Trademarks Law 2001
49
Article 1 point (3) The Trademarks Law 2001
50
Article 1 point (4) The Trademarks Law 2001
 137

remains same with the previous law. An application of trademark must be based on good
faith,51 more over, the requirements on trademarks registration as stated on article 5 and 6 are
same with the previous law. However, this law is still adopted first to file principle and the
infringement of trademark became a crime. In fact, this law is also offer some various dispute
settlement on private law as well as on criminal law procedure. For example, cancelation of
trademarks law suit can be file on commercial court. 52 Whereas, in case of trademarks
infringement the owner of registered trademarks can file a law suit for damages and or
injunction to commercial court.53while in light of trademarks infringement criminal sanction
is also applicable.54 In addition it also offer Alternative Dispute Resolution as part of disputes
settlement mechanism55.

C. Legal Protection Of Trademarks As Internet Domain Names In Indonesia

The development of information technology can be trace from the competition
between the USA and the former UUSR at cold war era. The research related to
telecommunication technology is primary done by the development of Advance Research
Project Agency Network (ARPANET) that an important network which connected between
US Department of Defense and the military researchers at California Los Angeles and
University of Santa Barbara (UCSB), moreover, the Stanford Research Institute and
university of Utah continued this research till 1969. Up till 1972 ARPANET already had 72
connection with many universities in the USA.( Agus Raharjo, 2002:61). In addition, the
research continued in order to find a new device which can connect among computers
networks that known as Packet Networks or Transmission Control or Internet Protocol(IP). In
1983, the University of Wisconsin introduce their server as Domain Names. Furthermore, the
also develop the regulation related to Domain Name System(DNS), meanwhile, the
registration body of domain name is the Internet Assigned Numbers Authority
(IANA)(Annette Kurr,1998, the domain name v trademark dilemma
,www.intellectprop.mpg.dl)
Domain name is an easy name to remember and to use by internet user in order to find
the websites to replace IP addresses that usually contains serial number. (Patrick Gunning,
2000, trademarks and Domain Names, Cyber law resources, http://www.austlii.edu.au).
Domain names consist of three elements namely: 1) the second level Domain is an
unique name that shows web site, it can be a person‘s name, company or the owner of
domain name. 2) the generic top level domain(gTLD) is an alphabet which shows the certain
kind of organization who has the domain such as <edu>,<ac>,<com>,<biz> etc.3)the country
code top level domain (ccTLD)is an alphabet that shows the country origin of domain names
registrations such as <id>,<jp>,<my> etc.(Michael Handler,2000,internet and trademark law,
http://www.law.murdoch.edu.au).
Domain names should be an unique name, an applicant must be sure that there is no
one has been registered the name. Meanwhile, The Internet Corporation for Assigned Names
and Numbers (ICANN) is a non government organization who has authority to register
internet domain names.
The rapid development of domain names is in line with e commerce activity,
therefore, the existing domain names could be overlapping with trademarks especially
registered trademarks. This phenomenon is also occur in Indonesia. As stated before in
previous point that application a trademark must be based on good faith, it means that the

51
Article 4 The Trademarks Law 2001
52
Article 68 The Trademarks Law 2001
53
Article 76The Trademarks Law 2001
54
Article 90-94 The Trademarks Law 2001
55
Article 84 The Trademarks Law 2001
 138

applicant do not register trademark belongs to other. Whereas, the application of a domain
names adopted the first come first serve principle. The implementation of this principle
created many problems since it is hard to know that the first that the applicant of domain
names is a person who has the trademarks rights. As a result, it creates cyber squatting and
cyber piracy.
Brian Firtzgerald states that Cyber piracy or Domain Names Hijacking is use well
known marks or similar to well known marks as domain name by a person who does not have
rights in order to gain economic advantages. Meanwhile, cyber squatting is register a domain
name by using name or trademarks unlawfully in order to ban the owner of name or
trademark to register it.(Brian Fritzgerald.et al,1998:4)
The trademarks Law 2001 has provided an adequate protection for registered
trademarks owner against trademarks infringement, in fat, it can not apply on cyber squatting
as well as cyber piracy due to some reasons. Firstly, trademarks is a sign use as an identity of
goods or services in a marketplace, whereas, domain name is an address pointing to a certain
website. Secondly, the existing on a website do not always has direct connection with
commercial activities, since many sites are only provide information. Thirdly, registered
trademarks have legal protection within the territory of the country and apply first to file
principle. In fact, domain names follow fist come first serve principle so it can be assumed
that whoever files an application of domain name for the first time, he is the owner of it.
More over, cyberspace is borderless space without any jurisdiction geographically or
politically. Fourthly, one of the requirement on registering trademarks is it must be unique,
original, non generic terms and have distinctive features, whereas, registering domain names
do not require provision like trademarks. Even though, the basic use is similar, however,
almost every names can be registered as domain names.
In 2008 Indonesia government enacted the law number 11 the year of 2008
concerning with Information and Electronic Transaction. According to this law domain name
is internet address belong to government, person, legal entity or society that use to
communicate each other by internet, that is a serial code or a unique character to show certain
location on internet.56 This law is also apply first come first serve principle as a basic of
registration.57More over, Article 23 (2) states: ― the registration of domain name should base
on good faith, do not contrary with fair competition as well as do not contravene with others‘
rights‖.58 Article 23(3) states: ―every government, person, legal entity or society have right to
apply cancelation of domain names when their domain names has been use by other people
without any consent of the owners.
This law regulates an independent organization in order to register domain names in
Indonesia. Whereas, in case of a domain name disputes it still refers to Uniform Domain
Names Dispute Resolution Policy (UDNRP) 1999.
To sum up, it can be said that the Information and Electronic Transaction Law 2008,
has clear definition related to domain names, however it has not provide adequate protection
to registered trademarks on cyber squatting and cyber piracy act.

BILBIOGRAPHY
Anette Kurr, 1998, The Domain Name vs Trademark Dilema, www.intellecprop.mpg.de.

Agus Raharjo, 2002, Cyber crime, Pemahaman dan Upaya Pencegahan Kejahatan
berteknologi Tinggi, Citra Aditya Bhakti, Bandung.

56
Article 1 point 20 Information and Electronic Transaction Law 2008
57
Article 23 (1) Information and Electronic Transaction Law 2008
58
Article 23 (2) Information and Electronic Transaction Law 2008
 139

Barda Nawawi Arif,2001, Antisipasi Penanggulangan cybercrime dengan hukum pidana,

Citra Aditya Bhakti.

Brian Firtzgerald et.al, Marketing Your Website: Legal Issues Relating to the Allocation of
Internet Domain Names, UNSW Journal Vol 21 no.2 , 1998.

Introduction to Trademark Law and Practices, a Basic Concepts, 1988, WIPO Training
Manual, Geneva.

Imam Syahputra, 2002, Problematika Hukum Internet di Indonesia, Prehallindo, Jakarta.

Michael Handler,2000, Internet Domain Names and Trademark Law,

http://wwwlaw.murdoch.edu.au.

Patrick Gunning, 2000, Trademarks and Domain Names, cyberlaw resources,

http://www.austlii.edu.au.

Rapin Mundiarjo, Yurisdiksi Kejahatan dalam Internet, Konvergensi nomor 01, Agustus
2000.

Rebecca Rohan, What‘s in a name, Black Enterprise Journal,Vol 30(10), May 2000.

Ronny nitibaskara, Pidana Khusus cybercrime, Kompas, 10 mei 2000.

The Electronic Frontier: the Challenge of unlawful Conduct Involving the Use of the Internet,
http://www.usdoj.gov

Bertahan Hidup di Sarang Penyamun Internet, Warta Ekonomi, no.9/5maret 2001

 140

PLENARY SESSION

Introducing E-Commerce Law in the Criminal Law and Islamic Law

Presenters:

Nur Chanifah
Alfons Zakaria
Rosalinda Elsina Latumahina
 141

E-COMMERCE IN FIQH MUAMALAH PERSPECTIVE

Nur Chanifah,S.Pd.I, M.Pd.I1

And
In’amul Wafi

ABSTRACT
In this current era of globalization, the utilization of technology in both business and
trading sectors through electronic media are growing rapidly among society. It can be seen
from the increasing transactions of item and service via electronic media, we know in
popular as an electronic commerce (e-commerce). These developments because of the
transaction are more efficient than the traditional transaction, both in time and cost. If it‟s
examined from the system and its operational principles, then e-commerce is actually a kind
of trading tool, the trader‟s execute all the transactions through the internet. These studies
reviewed from Islamic law perspective are classified into the rules of fiqh muamalah
discourse. In principles of fiqh (usul fiqh) is explained that "al-ashlu fi al-mu‟âmalati al-
ibâhah Hatta yadulla al-dalîilu 'ala Tahrîmiha" (the original law of muamalah transaction is
permitted unless there no argument for its prohibition). Therefore e-commerce transactions is
permitted by Islam based on the maslahah principle, as long as the transaction is nothing
contrary to Islam, (1) the object of the transaction is not a prohibited item, (2) based on the
principle of compliance and mutual agreement, (3) the procedures or systems that run does
not contain elements of fraud, and forgery. E-commerce transaction is actually similar to as-
Salam (indirect trading) which is the items is not in hand when the contract conducted, but
only concretely explained how the object or by presenting examples to the consumer.

Keyword: e-commerce, fiqih muamalah, perspective

A. Background of Study
Comprehensiveness of Islamic teachings can be perceived in providing guidelines for
human life both in spiritual-materialism, individual-social, physical-spiritual, earthly-
hereafter in harmony and proportionality. In terms of economic activities, Islamic religion has
provided rules and directions of guideline in order to afford opportunities for the progress of
economic actions in the future2.
One of Islam's most important studies in the business is about fulfilling promises and
covenants that must be met by both parties. As described in Surat al-Isra verse 34; "fulfil
your promise, the promise was certainly held accountable". This proves that Islam wants
justice to be enforced in all the deals approved.
With the development of human civilization, the trading systems also have evolved in
modern procedure. One of those changes is a form of trade through cyberspace or internet. E-
commerce is a model of arrangement in trading with dissimilar characteristics compare to the
classical transactions, especially it would cover not only local but also worldwide.
E-commerce phenomenon has been documented in Indonesia since 1996 by showing
http://www.sanur.com as the first Indonesian online bookstore. Although not too popular, in
1996 many sites come out with e-commerce transactional model. Throughout the 1997-1998
ecommerce existence in Indonesia was neglected caused by economic downturn, moreover in

1
Nur Chanifah,S.Pd.I, M.Pd.I, Faculty of Law Brawijaya University, Malang Indonesia,
bilqis_azza09@yahoo.com or nur.chanifah@ub.ac.id; In‘amul Wafi, Brawijaya University, Malang Indonesia,
inamulwafie@gmail.com
2
Suhrawardi K. Lubis, Hukum Ekonomi Islam, Sinar Grafika, Jakarta, 2000, p.. 3-4
 142

1999 up to nowadays it returns to rise back but still in limited people of Indonesian who
acquainted with technology.3
Building trust and customer satisfaction become a major priority in the development
and progress of e-commerce transactions. In addition, the businessman makes any effort to
build consumer confidence 4 because of that indirect transaction. These models frequently
create problems such as; the sent items are not in accordance with the display, the items are
not sent although the paid has been made and so forth.
The economic activities are involved in the review of Islamic Jurisprudence.
Consequently, the rule that used in identifying these transactions is fiqh mu'amalah.
Furthermore, this form of trading entails in-depth analysis according to Islamic jurisprudence
and muamalah in terms of e-commerce original law and how the transaction should be made.
Due to the problems that arise from e-commerce transaction, this paper purposely expects to
provide scientific literatures in economics and enhancing community perspective in carrying
out e-commerce transactions.

B. The Meaning of E-Commerce

Etymologically, the word e-commerce derived from the English language which is an
abbreviation of electronic commerce. Meanwhile, in economic terms it is widespread as a
transaction system using an electronic instrument for online business. According to Gia
Putra, e-commerce is electronical business mechanism which focuses on the individual-based
business transactions using the Internet services (network-based digital technology) as a
medium of exchange of stuff and services.
The core objective of e-commerce is to simplify the transaction, primarily towards
sale and purchase transactions online in safe, secure and trusted in both of trading and
services. Hence, to provide secure services in the transaction are compulsory requires
providing the framework of legal and policy on e-commerce transactions.5
E-commerce system is not an immediate process, but it is a transformation strategy and
business systems are constantly develops in line with improvement of the company and
technology. The existing processes within e-commerce are as follows:
1. Website utilization for displaying products and services.
2. Booking order and direct billing are enabled.
3. Safe and secure guarantee for customer accounts (both account and credit card
numbers)
4. Direct Payments (online) and Customer satisfaction orientation.6

C. Fiqh Muamalah
Fiqh Muamalah entails of words Fiqh and Muamalah. Etymologically, Fiqh means
understanding, insight and knowledge.7 Fiqh defined as the religious knowledge which cover
the jurisprudential and law of Islamic religion in the form of faith, morals, and worship. In
addition, by further definition known as "knowledge toward Islamic law related to individual
actions that have grown up and sensible (Baligh) which taken from the comprehensive
arguments8 (dalil Aqli & Naqli). Some of Moslem scholar such as Imam Haramain stressed
3
Azhar Muttaqin, Transaksi E-Commerce dalam tinjauan Hukum Islam, not published research, Lemlit
Unmuh Malang, 2009, p. 3-4
4
Veithzal Rivai, dkk, Islamic Transaction Law in Business dari Teori ke Praktek, Bumi Aksara,
Jakarta, 2011, p. 1-3
5
http://fahmilaziz.blogspot.com/2012/06/e-commerce-dalam-pandangan-islam.html, accessed on 10th
of October 2014.
6
http://secretdark.wordpress.com/2011/01/19/159/, accessed on 3rd of November 2014
7
Zainuddin Ali, Hukum Ekonomi Syari‟ah, Sinar Grafika, Jakarta, 2008, p. 118
8
Rachmat Syafe‘i, Fiqh Muamalah, Pustaka Setia, Bandung, 2001, p. 13
 143

on the definition of fiqh as "the legal knowledge of Personality 'by ijtihad. On the same point
of view, Al Hamidi found that the science of fiqh is assessed through reasoning. On the other
hand, some of Islamic legal knowledge come out with direct regulation with no ijtihad
needed (research), for instance; daily prayers and the prohibition of adultery, thus principles
is excluding fiqh, because it is definitive.9
Thus definition indicates that fiqh is knowledge of Islamic guidelines which is
achieved through shedding intellectual abilities of muslim scholars (ulama). And it‘s resulted
the level truth that only lead to the rank of zhanni (relatively), not qathi (absolute), and lead
to the possibility of a different opinion and orientation among scholars.
The disagreements of opinion in Islamic jurisprudent would not indicate to diversity
and legal uncertainty, because the distinction is more in terms of freedom of the scholars in
issuing their opinions, in accordance with a their understanding of the sources of Islamic
teachings as well as the arguments used. Differences of opinion are usually caused
differences in the understanding of similar arguments, or it could be caused each scholar have
or uses the different proposition in solving problems, and in fact can also due to different
methods of ijtihad. However, thus disagreements should not entirely out of the general
principles of the Qur'an and Sunnah as the primary source of Islamic teachings.10
The word Muamalah is grammatically similar to mufa'alah (each act). It describes an
activity of a person or people to seek their individual needs. While the terminology of fiqh
defined as the laws relating to human legal action as muslim in this world.11

D. Islamic Business Transaction

Business is well-defined as a series of working activities in a several forms which
makes the owner has the unlimited numbers of quantity of his property (items/services),
including profit, but it is restricted in how the acquisition and utilization of his property (rules
of halal and haram). In fact, we already have the ultimate figure to refer and give us good
examples of worldwide business.12
Prophet Muhammad SAW, as a successful dealer established a noble example and
principles toward all business operation. He implements a trading transaction in honest, fair,
and avoid customers complains or disappointment, he always pays attention to a sense of
responsibility for every transaction he made. By keeping the words and controlling the
quality standards according to customer demand, he gains trustworthy and good reputation.
Muhammad SAW is most trusted and honest people ever existed in world of business.
Compulsory principles in conducting business transactions in accordance with Islamic
teaching:
a. The commercial items and services are legal and in accordance with Islamic
principles of muamalah and none of those items are prohibited in Islam. As declared
in the Qur‘an surah al-Maidah verse 2: "And cooperate in righteousness and piety,
but do not cooperate in sin and aggression”
b. The existence of willingness. Islamic principle pronounce that all transactions should
be made on the basis of the mutual willingness of each party, those regulation
regarded as prerequisites for conducting the transaction. As defined in surah al-Nisa
verse 29. “O you have believed, do not consume one another‟s wealth unjustly but
only (lawful) business by mutual consent”

9
Ibid., p. 14
10
Nasrun Haroun, Perdagangan Saham di Bursa Efek, Tinjauan Hukum Islam, Kalimah, Jakarta, 2000,
p. 11
11
Nasrun Haroun, Fiqh Muamalah, Gaya Media Pratama, Jakarta, 2000, p. viii
12
Abdul Aziz dan Mariyah ulfa, Kapita Selekta Ekonomi Kontemporer, Alfabeta, Bandung, 2010, p.
133
 144

c. Trust and satisfaction guarantee. In business, the value of honesty and trust of
transaction management are primary characteristic that should be shown. Prophet
Muhammad SAW says: “A honest and trustworthy traders is in hand with the
Prophets and the Martyrs".13
On the contrary, there some negative action that should be avoided in conducting e-commers:
a. Any practice of dealings that involve the elements of interest (riba) is clearly
prohibited, it will adverse either of the parties who transact.
b. Islam prohibits the uncertainty transactions (Gharar). The items and services were not
in hand or owned, the existence of items is doubted, or undelivered items. This model
will lead to the buyers complains, disadvantages and remorse. Uncertainty transaction
(ghahar) could be in the form items, contract and and trading agreement.
c. Fraud on quality and quantity of items, fraud on the prices tag, unscheduled delivery
and invalid agreement.
In addition, there some components that make the business transactions are unlawful, namely;
a. The transactions that carried out by mad person.
b. Contracts agreement is not in accordance with Islamic law. For instance, the
agreement of either businessperson does not match up.
c. The object of transaction is prohibited in Islam, such as unclean items (najis) or drug
and so on.
d. Purchase an items which already bought by someone else.14

E. e-commerce in fiqh muamalah perspective

The main purpose of Islamic jurisprudence in muamalah is to establish positive
dealing order. In addition, to manage the issues of fiqh muamalah, Alqur'an and Sunnah are
regularly determine the patterns, principles and rules in general term, and it's further analysis
are submitted to expert moslem scholar. As the result the application field of muamalah leads
to the diversity of process in achieving prosperity. Thus, will provide benefits for the
community in the implementation of positive economic.
Thereby, to determine the legality status of e-commerce should be refer to the rules of
fiqh, specifically; "al-ashlu fi al-mu‟âmalati al-ibâhah Hatta yadulla al-dalîilu 'ala
Tahrîmiha" (the original law of transaction is permitted unless there no argument for its
prohibition) 15 it shows that Islam has given wide opportunities for the development of
community needs.
According to Jamal al-Din Athiyah, the principles of muamalah contain some sense,
namely:
a. To establish a form muamalah skill is not required to find a legal syar'i (Qur‘an and
Hadith) because the original law is allowed (permissible), not unlawful.
b. Text description in Alqur‘an and Hadith related to muamalah are not intended as a
limitation in finding new forms of muamalah which did not exist in the Qur'an and
Hadith.
c. In creating a new form of muamalah and to determine the legal skill, analogical
approach is not required for what have been described in the Alqur‘an.
d. To determine the permissibility also unnecessary analogy (ilhaq) with an Islamic legal
opinion the results of ijtihad, or with some form of muamalah that already exist in the
literature of Islamic law.

13
Fathurrahman Djamil, Hukum Ekonomi Islam, Sejarah, Teori, dan Konsep, Sinar Grafika, Jakarta,
2013, p. 156-158
14
Ibid., p. 159-172
15
Ibid., p. 127
 145

e. Provision the only thing that should be considered in determining the permissibility of
new muamalah is not violated texts that forbid it, both the texts of the Qur'an and
hadith. Therefore, it should be done when creating a new muamalah is researching
and looking for texts that forbid it.

Additionally, any muamalah transaction should in tune with the principles of positive
predominate (maslahah), which is all forms of goodness and benefits that contains elements
of the Shari'ah compliance (halal) for all integral aspects and that not cause problems. Thus
Benefit are aimed to the fulfilment of the vision in maqasid al-Shari'ah which consists of five
elements, namely religion (al-din), descent (al-nasl), soul (al-nafs), wealth (al-maal) , and
reasoning (al-aql).
The success positive predominate (maslahah) indicates both direct and indirect
benefit such as welfare, happiness, profitable and ease. While the indicator of problems
(madharat) are miserable, troublesome, costly, difficult, and burdensome.
Based on the rules and principles of usul fiqh, then there are no arguments indicates
the prohibition of e-commerce. Thereby, the law of e-commerce is permissible as long as
there was no element that makes it illegitimate. 16 This is due to the human need for
technology to keep on trying to improve and prevent things that are contrary to the principles
of the Islamic jurisprudence (muamalah). If the negative element still appears, then it must be
eliminate. In another rules of fiqh noted that "al-dhararu yuzalu" (the danger should be
eliminated). 17 Hence, to avoid the elements, which prohibited in Islam, the e-commerce
should notice several rules given below:
a. Items and services that become the object of the transaction is not an illegitimate by
the rules of Islam (al-Maidah verse 90)
b. The principle of mutual willingness from all parties (al-Nisa 'verse 29) and the Hadith
of the Prophet "Surely it must be buying and selling on the basis mutual agreement"
(Reported by Ibn Hibban, Ibn Majah, and al-Bayhaqi).18
c. The system transactions executed does not contain elements that are prohibited in
Islam, such as deception, ambiguity, fraud and forgery. As described in Hadith of the
Prophet "Whoever commits fraud, he is not one of us" (Muslim)

By paying attention to these rules, then the e-commerce transactions will not be
contrary to the principles of Islam. In addition, as long as the principle of Islam is held, then
the provision is flexible, dynamic, and innovative in terms of muamalah. This is because man
is created by God as a Caliph who has given the mandate and the willingness to jazz up the
earth by following the guidance.
In addition, if it reviews from the system and its operational principles, the e-
commerce in muamalah jurisprudence is actually a tool, media and technical methods which
in Islam is flexible and dynamic. This includes the technical problems of the world (al-umur
al-dunya) so that the prophet fully devolved to control and utilize for the sake of prosperity
along with the corridor of Islamic teaching. However, the principles of sharia in transaction
should not be violated simply just to follow the development.
While for the technical operations, is returned to the traditions or the existing system,
including the actualization of agreement (ijab-qabul), furthermore, the sale does not have to
do with saying or physical meeting. Technically can be done by clicking or push the certain
button options in cyberspace, then made a payment to settle by any technology or media
which be considered trusty valid to requirements of sharia and resulted the agreement among
16
Dahlan Tamrin, Kaidah-kaidah Hukum Islam, UIN Maliki Press, Malang, 2013, p.8
17
Ibid., p. 153-155
18
Setiawan Budi Utomo, Fiqih Aktual, Jakarta, Gema Insani Press, 2003, p. 70-71
 146

them. As explained in Al-Qur‟an surah al-Maidah verse 1 "O ye who believe, fulfill all the
contract-agreement" and also described in the hadith, Prophet Muhammad said; "Muslims
were obliged to fulfill their commitment to the agreement, unless the agreement for justify the
unlawful or forbid the legal" (Reported by Abu Dawud, Ibn Majah, and Tirmidhi).
When it comes into a deep definition of fiqh muamalah, the e-commerce transaction is
similar to the contract transaction (Bai‟us Salam). 19 Contract trading is a sales transaction
where the items are still dependents to seller, but the payment of such items has been made
direct by the buyer. While the item is the object of buying and selling is also not in place.
Sellers only explain about the example, the conditions and characteristics of the item.
Identically the same essential with e-commerce transactions, in which the seller is only giving
examples or characteristics of items through cyberspace. When the deal and agreement has
been made, the buyer can continue the transaction by committing from both sides, including
how the payment and its delivery.

F. Conclusion
When it examine from a system and its operational principle, then e-commerce on
Islamic jurisprudence (muamalah) is actually an instrument, media, technical methods and to
conduct positive transactions. Therefore, for analysing its legal status require to consider the
rules of jurisprudence in accordance with muamalah. In ushul-fiqh terminology described as
"al-ashlu mu'âmalati fi al-al-al-ibâhah Hatta yadulla dalîilu 'ala Tahrîmiha" the original law
of the muamalah transaction is permitted unless there no argument for its prohibition. In any
terms of the sale and transactions, holding a positive principle are required to fulfil the vision
of benefit which is covered in maqasid al-Shari'ah that consists of five elements, namely
religion (al-din), descent (al-nasl), soul (al nafs), wealth (al-maal), and reasoning (al-aql).
Thus, based on that regulations and principles, the law of e-commerce is permissible as long
as there no element which makes it illegitimate. Human needs for technology update to keep
on trying to improve and prevent things that are contrary to the principles of the Islamic
teaching. If it still appears an element of illicit transaction then should be eliminated.
Therefore, to avoid the forbidden elements in Islam, the E-Commerce is compulsory pay
attention to the rules of Islamic jurisprudence, for instance; the items and services of the
transaction is not a prohibited in law, the principle of willingness from all parties, the
transaction systems does not contain aspects that are prohibited in Islam, such as fraud,
ambiguity, deception, forgery, and so on. In-depth review, E-Commerce transactions is a
similar essence with dependent contract (ba‟ius salam), which is a trading transaction in
which items or stuff are still dependents seller, but the payment of such items has been made
in advance by the buyer, while the item does not exist.

G. Bibliography
Ali, Zainuddin, 2008. Hukum Ekonomi Syari’ah, Sinar Grafika, Jakarta.
Aziz, Abdul dan Mariyah ulfa, 2010. Kapita Selekta Ekonomi Kontemporer, Alfabeta,
Bandung
Djamil, Fathurrahman, 2013. Hukum Ekonomi Islam, Sejarah, Teori, dan Konsep, Sinar
Grafika, Jakarta
Haroun, Nasrun, 2000. Perdagangan Saham di Bursa Efek, Tinjauan Hukum Islam,
Kalimah, Jakarta
Haroun, Nasrun, 2000. Fiqh Muamalah, Gaya Media Pratama, Jakarta.
Lubis, Suhrawardi K. 2000. Hukum Ekonomi Islam, Sinar Grafika, Jakarta

19
Surahwardi K.Lubis and Farid Wajdi, Hukum ekonomi Islam, sinar Grafika, jakarta, 2012, p.154
 147

Lubis, Surahwardi K. and Farid Wajdi, 2012. Hukum ekonomi Islam, Sinar Grafika, Jakarta.
Muslich, Ahmad Wardi, 2013. Fiqih Muamalah, Amzah, Jakarta
Muttaqin, Azhar, 2009. Transaksi E-Commerce dalam tinjauan Hukum Islam, not
published research, LEMLIT UNMUH Malang.
Rivai, Veithzal, dkk, 2011. Islamic Transaction Law in Business dari Teori ke Praktek,
Bumi Aksara, Jakarta.
Syafe‘i, Rachmat, 2001. Fiqh Muamalah, Pustaka Setia, Bandung.
Tamrin, Dahlan, 2013. Kaidah-kaidah Hukum Islam, UIN Maliki Press, Malang.
Utomo, Setiawan Budi, 2003. Fiqih Aktual, Gema Insani Press, Jakarta
http://fahmilaziz.blogspot.com/2012/06/e-commerce-dalam-pandangan-islam.html, accessed
on 10th of October 2014
http://secretdark.wordpress.com/2011/01/19/159/, accessed on 3rd of November 2014
 148

CORPORATE CRIMINAL RESPONSIBILITY IN INDOENSIAN ACT NO. 11 YEAR

2008: FORMULATION ISSUE

Alfons Zakaria1

ABSTRACT
Legality principle is fundamental legal standing for prosecution of criminal offences.
The principle requires not only that all laws must be written (lex scripta), but also they must
detail in formulating provisions (lex certa). These will protect people from abuse of the
authority and to ensure fairness of judicial process. However, in Indonesian Act No. 11 year
2008, the legislators might miss to detail the formulation of provision regulating corporate
criminal responsibility. Only in Article 52 paragraph 4 regulates that the punishment for
corporation violating the law shall be exacerbated two third from main punishments. The Act
should provide provisions related to when corporation shall be categorized committing
crime, who party shall be responsible when corporation commits crimes, and what
punishment shall be proper for corporation. This paper will argue that the absence of some
provisions related to corporate criminal responsibility in the Act will lead to some issues. The
paper will initially describe the principles that should be embraced related to provision of
corporate criminal responsibility. Then, it will analyst the formulation problems in the Act
No. 11 year 2008 related to corporate criminal responsibility. Finally, it will identify the
elements that should be contained in provisions of regulation related to corporate criminal
responsibility.

Key words: Corporate Law, Criminal Responsibility, IT Law

A. BACKGROUND
Provisions of criminal sanctions for corporation in the Law of Electronic Information
and Transactions, regulated in Article 52 which contains provision of the addition of
criminal sanctions, paragraph (4) states that ―Dalam hal tindak pidana sebagaimana
dimaksud dalam Pasal 27 sampai dengan Pasal 37 dilakukan oleh korporasi dipidana dengan
pidana pokok ditambah dua pertiga‖ ("Criminal acts as intended from Article 27 to Article
37 committed by corporations shall be sentenced to the basic sentence plus two-thirds"). The
provision is considered as a deficient provision in regulating corporate criminal
responsibility. There are no other provisions that regulate corporate criminal responsibility in
the Act.
On the other hand, in identifying the things that need to be regulated in a corporate
criminal responsibility is not separated from the form and nature of the corporation. At least
there are four things that need to be regulated specifically regarding corporate criminal
responsibility according Barda Nawawi Arief, which are:2
a. When the corporation is said to do a criminal act;
b. Who can be accounted for;
c. In the terms of how corporations can be accounted for;
d. What are the type of sanctions that can be imposed to any corporation.

Moreover, in relation to the principle of legality, legislators should formulate

regarding the acts referred to criminal offenses clearly and in detail. This is called the
principle of lex certa or bestimmtheitsgebot. Legislators should define clearly without vague
1
Alfons Zakaria, Faculty of Law Brawijaya University. E-mail: al_zaka@yahoo.com
2
Barda Nawawi Arief, 2007, Masalah Penegakan Hukum dan Kebijakan Hukum Pidana dalam
Penanggulangan Kejahatan, Kencana Prenada Media Group, Jakarta, p. 151.
 149

(nullum crimen sine lege stricta), so there is no ambiguity regarding the formulation of a
prohibited act and given sanction. Formulation of unclear or overly complicated will only
bring legal uncertainty, and then it would lead to the failure law enforcement.
This paper will argue that the absence of some provisions related to corporate
criminal responsibility in the Act will lead to some issues. The paper will initially describe
the principles that should be embraced related to provision of corporate criminal
responsibility. Then, it will analyst the formulation problems in the Act No. 11 year 2008
related to corporate criminal responsibility. Finally, it will identify the elements that should
be contained in provisions of regulation related to corporate criminal responsibility.

B. PRINCIPLE OF LEGALITY
The principle of legality or nullum delictum, nulla poena sine praevia lege poenali or
it means no offense, no punishment without penal provisions which preceded it. Hazewinkel-
Suringa also use the words: Geen delict, geen straf zonder een voorafgaande. There is a
Latin term which is often used: Nullum crimen sine lege stricta, which means no offense
without a clear provision or in Dutch: Geen delict zonder een precieze wettelijke bepaling.3
Based on the above explanation, according to Sudarto, the principle of legality
contains two things:4
a. A criminal offense must be formulated/stated in the law. About this there are two
consequences, the first is that the act of someone who is not listed in the law as a
crime, cannot be punished. So with this principle, unwritten law lacked power to be
applied. Whereas the second consequence is an assumption that the prohibition of the
use of analogies to make an action become a criminal offense as defined in the law.
b. Regulation of this law must exist prior to the occurrence of the crime. Consequently,
the law must not be retroactive.
Meanwhile, according to Moeljatno, from the formulation of the principle of legality
can be concluded that:5
1. There are no actions which prohibited and threatened with criminal penalties if it was
previously not stated in the law.
2. To determine the existence of criminal acts must not use analogy.
3. The rule of criminal law does not apply retroactively.

While according to Fajrimei, in the tradition of civil law systems, there are four
aspects of the principle of legality which is applied strictly, namely: legislation (law),
retroactive, lex certa, and analogy. Regarding to these four aspects, according to Roelof H
Haveman, ―though it might be said that not every aspect is that strong on its own, the
combination of the four aspects gives a more true meaning to principle of legality‖.6 Based on
the history and definition, it can be concluded that:
a). The regulation must be in writing (lex scripta)
In the civil law tradition, the first aspect is the judgment must be based on the law, in
other words based on the written law. Law (statutes) should regulate the behavior
(actions) which regarded as criminal offenses. Without law governing the prohibited
acts, such actions cannot be regarded as a criminal offense.
b). The regulation should be formulated in detail (lex certa)
In relation to the written law, legislators should formulate regarding the acts referred
to criminal offenses clearly and in detail. This is called the principle of lex certa or

3
Andi Hamzah, Asas-asas Hukum Pidana, Rineka Cipta, Jakarta, 1994, p 40
4
Sudarto, Hukum Pidana I, Yayasan Sudarto, Semarang, 1990, p 22.
5
Moeljatno, Asas-asas Hukum Pidana, Rineka Cipta, Jakarta, 2002, p 25
6
Fajrimei A. Gofar, Asas Legalitas Dalam Rancangan KUHP 2005, ELSAM, Jakarta, 2005, p 6
 150

bestimmtheitsgebot. Legislators should define clearly without vague (nullum crimen

sine lege stricta), so there is no ambiguity regarding the formulation of a prohibited
act and given sanction. Formulation of unclear or overly complicated will only bring
legal uncertainty and hinder the success of the prosecution (criminal) because people
are always going to be able to defend themselves that such provisions are not useful
as a code of conduct.
c). The regulation does not apply retroactively (non-retroactivity)
The principle of legality requires that the provisions of laws and regulations that
define criminal offenses cannot be applied retroactively (retroactive). The rationales
of the prohibition of retroactive to the principle of legality are:7
1) Guarantee of the freedom of the individual against the arbitrariness of the
authorities.
2) Crime is also a psychic compulsion (psychologist down). With the threat of
punishment against those who committed the crime, the authorities tried to
influence the psyche of people who are about to commit crime to not doing it.
d). The regulation does not interpret by analogy
As mentioned earlier, the principle of legality in detail and meticulously
restricting what actions can be imprisoned. However, in practice, the law provides an
opportunity to do the interpretation of the formulas of the prohibited act. In the
science of criminal law known some methods or ways of interpretation, namely:
grammar or grammatical interpretation, logical interpretation, systematic
interpretation, historical interpretation, teleological interpretation or sociological,
opposite interpretation, limitation interpretation, expand interpretation, and analogical
interpretation.
Among the many interpretation methods, analogical interpretation has
provoked debate among the jurists who divided into two groups, the group who accept
and oppose analogical interpretation. In summary, analogical interpretation is if there
is an act which is not a criminal offence at the time happened, then applied provisions
of criminal law applicable to other action or an offence that have similar nature or
form with that action, so that both of the actions are deemed analogous to one another.

C. PRINCIPLE OF LEGALITY IN PENAL CODE

Penal Code in Indonesia is derived from Wetboek van Strafrecht voor Nederland
Indie which, according to the Law of Republic of Indonesia Year 1946 No. 1 applied in
Indonesia until now although with the changes and additions. Penal Code also adheres to the
principle of legality mentioned in article 1, paragraph (1): ―An action cannot be convicted,
except by the power of the criminal provisions of the law which has existed beforehand
(Geen feit is strafbaar dan uit kracht van eene daaraan vooragegane wettelijke
strafbepaling).‖
As well as the explanation above, the principle of legality mentioned in article 1,
paragraph (1) of the Penal Code contains three basic understandings:8
1. The provision of the criminal law should be set earlier in writing.
The rule of law must be in writing because it means to be set first and then enforced.
Criminal provisions should be in writing not only in law, but also in writing in the
form of other regulations. Thus, the criminal law is not only a source of law in the
formal sense, but also in the sense of material including Government Regulation,

7
Sudarto, op cit, p 22
8
Adami Chazawi, Pelajaran Hukum Pidana Bagian I, PT. RajaGrafindo Persada, Jakarta, 2005, p. 172
 151

Regional Regulation, President Regulation, and other which contain aspects of

criminal law.
2. In regard to determining whether an action is in the form of a criminal offense or not,
should not use the analogy interpretation.
The reason why the analogy is prohibited under the criminal law is to ensure legal
certainty. Perceived as an assault and a violation of the certainty of the rule of law if
the analogy is applied, as the basis of the establishment of the formulation of article 1,
paragraph (1) of the Penal Code is in the background of legal certainty in order to
protect the people from the effort of ruler's arbitrariness.
3. The provision of criminal law should not be retroactive (terugwerkend or retroactive).
The provision of article 1, paragraph (2) of the Penal Code is an exception from the
provision that should not be applied retroactively. Criminal law can be applied
retroactively if they meet three conditions, which are:
a. There must be a change in the law regarding an action;
b. The change occurred after the action is done;
c. The new law is more favorable or relieve the offender.

D. CORPORATE CRIME
Corporate crime is a crime that is organized, which is a crime that occurs in the
context of complex relationships and relating to expectations among the board of Directors,
executives and managers on the one hand and between headquarters, sections and branches
on the other hand9.
The development of these communities creates various crimes related to corporate.
The diversity of this crime creates so many terms of crimes related to corporation become
increasingly diverse. In the future to prevent the misapplication of this term, there will be a
distinguished between crimes for corporation, crime against corporation and criminal
corporation.
Crime for corporation is corporate crime committed for the benefit of the corporation
and not for the employees.10 Crime against corporation is crimes committed by the employee
performed by the employee or worker of the corporation, such as embezzlement of company
funds by officials or employees who are in the corporate. 11 Criminal corporation is a
corporation that is deliberately created and controlled to commit a crime.12 In other words,
the perpetrator of a criminal corporation is from outside the corporation, or the corporation is
only used as a tool to carry out a crime. The thing that is distinguishing these three crimes
are related to the perpetrator and the result of the crime.

E. THEORY OF CORPORATE CRIMINAL LIABILITY

In the responsibility of a corporation, there are principles that can be applied, namely:
1. Absolute Responsibility (Strict Liability)
The development of criminal law at the present time in certain matters, the principle
geen straf zonder schuld, was held irregularities. Such irregularities occur if for a
particular criminal act otherwise applicable principles of strict liability. The principle
of strict liability is an expression that showed a criminal act does not require fault to
one or more elements of the actus reus.13 According to this doctrine, a person can be
justified for certain criminal offenses even though he has no fault (mens rea) or, in

9
Setiyono, Kejahatan Korporasi, Bayumedia Publishing, Malang, 2009, p. 40
10
Ibid p. 21
11
Ibid
12
Ibid
13
Mahrus Ali, Kejahatan Korporasi, Arti Bumi Intaran,Yogyakarta, 2008, p. 53
 152

short, it can be interpreted as a liability without fault. This means that someone shall
be punished, if he have committed acts as defined in the legislation without seeing
how the inner attitude.14
The provisions concerning this doctrine are also known in criminal law
according to LB. Curson. According to him the use of this doctrine is necessary in
implementing criminal law, based on the reasons, as follows: 15
(a) to ensure the fulfilment of certain important regulation which is necessary for
social welfare is very essential.
(b) proving the existence of mens rea would be very difficult for violations related
to social welfare
(c) high levels of social danger caused by any actions that concerned

Theoretically, this doctrine has been introduced and is known since the mid-
19th century. This doctrine is interpreted as an absolute obligation without the need
to proof (fault) further as the main characteristic. In Indonesia, the knowledge of the
principle of strict liability is not limited in the theoretical or knowledge of criminal
law. Therefore, the true principle of strict liability has been applied for a long time in
law enforcement, especially in traffic law enforcement in the event of violation of
the rules of traffic laws and road transport.16
In the science of criminal law, there is a different opinion on this doctrine. The
majority opinion states that the doctrine of "no fault at all" must be applied, unless if
it is found a big mistake on the perpetrators. While others say that the
implementation of this doctrine, should be made stricter requirements, depending on
the cases concerned.17
The reason on the premise that states there is no fault at all in strict liability is
that someone is not necessarily convicted even though he already committed action
that prohibited by law. In contrast, strict liability that must be made stricter
requirements (absolute liability) is that in the case of strict liability a person who has
done the forbidden act (actus reus) as defined in the law, may be convicted without
the need to question whether he has fault (mens rea) or not.18
2. Vicarious Liability
Vicarious liability is a criminal liability imposed on a person for the actions of others
(the legal responsibility of one person for the wrongful acts of another). So, it is generally
limited to cases concerning the relationship between employers and workers, servants or
subordinates. Thus in terms of vicarious liability, even though someone is not doing a
criminal offence themselves and have no fault in the usual sense, he can be justified.19
With regard to the concept of vicarious liability by Ruslan Saleh, it is said that in
general, a person responsible for his own actions. But there is so-called vicarious liability the
person responsible for the actions of others, and in this matter, the law will determine who
will be seen as responsible.20

14
Barda Nawawi Arief, Pelengkap Bahan Kuliah Hukum Pidana I, Fakultas Hukum Universitas
Diponegoro, Semarang, 1984, p. 68.
15
Muladi dan Dwidja Priyatno, Pertanggungjawaban Pidana Korporasi, Kencana, Jakarta, 2010, p.
108.
16
Ibid, p. 189.
17
Hulsman, dalam Hamzah Hatrik, Asas Pertanggungjawaban Korporasi Dalam Hukum Pidana
Indonesia (Strict Liability dan Vicarious Liability), Raja Grafindo Persada, Jakarta, 1996, p. 14.
18
Ibid, p. 110.
19
Ibid, p. 109-110.
20
Roelan Saleh, dalam Hamzah Hatrik, Op cit, p. 116.
 153

Law may find vicarious liability, in case of the following matters:21

a. A person can be held responsible for acts committed by others, if that person has
delegated his authority under the law to others. In this case we need a condition or
principle of responsibilities which is delegated (the delegation principle).;
b. An employer can be held responsible for an action physically carried by labourers or
workers, if under the law the act of the labour is seen as an act of the employer (the
servant act is the matters act in law).

Based on the principle of vicarious liability, corporate leaders or anyone who assigns
or give an order to their workers so they responsible for acts committed by their workers.
This responsibility extends to acts committed by persons based on the employment
relationship or other relationship. Thus anyone who works and in an employment relationship
or other relationship, as long as what they do is in related with the corporation, if something
goes wrong then the corporation will be responsible.

3. Identification Liability
This responsibility is different from absolute liability (strict liability) and vicarious
liability, in which the doctrine of this identification, the principle of mens rea is not ruled out,
while in the doctrine of strict liability and vicarious liability the principle of mens rea is not
required, or the applicability of principle of mens rea is not absolute.
The law now recognizes that any actions and inner attitude of certain person closely
related to the corporation and the management of corporate affairs, which is seen as an act
and inner attitude of the corporation. Those people are called senior officers or senior
officials of the company. The corporation held responsible for criminal acts committed by
senior officials in the company as long as the senior officials commit it within the scope of
authority or in matters of corporate transactions.22
In the view of C.M.V Clarkson, an action and inner attitude of a senior officer in a
corporate structure or corporation is identified (equivalent) as an action and inner attitude of
the company.23 The responsibility of corporations is direct. Direct here means that as a senior
officer in a corporation does not mean that the senior officer representing the corporation. But
the corporation criminally liable for a criminal offense committed by a senior officer in the
corporation as long as the senior officer commit it in the authority or in matters of corporate
transactions.
In cases where the law requires a person's fault in a liability in the field of loss or civil, it
means that the fault of the manager seen as the fault of the corporation. Similarly, in criminal
law, in cases where the law requires fault (evil inner attitude) in a criminal offense, then the
fault of the director and the manager seen as the fault of the company itself. Therefore, for
legal purposes, senior officers are the ones who control the company, either alone or together
with other senior officers. It represents an attitude of mind and will of the company, and it is
distinguished from those who merely as an employee and agent of the corporation who shall
carry out the instructions of senior officers. In general, the controlling company is the
directors and managers.24

21
Ibid, p. 116
22
Dwidja Priyatno, Kebijakan Legislasi Tentang Sistem Pertanggungjawaban Pidana Korporasi Di
Indonesia, CV.Utomo, Bandung, 2004, p. 89-90
23
Setiyono, op cit p.68
24
Ibid, p. 91-92
 154

F. MODEL OF CORPORATE CRIMINAL LIABILITY

In the history of the development of criminal law, there are three models of corporate
criminal liability as the subject of a criminal offense, namely:25
1. The board of corporation as the makers and administrators who responsible
The model, at this stage, the drafters of the Penal Code still accept the principle of
―societas/universitas delinquere non potest‖ (a legal entity cannot be committing a crime). If
in the case of the corporate board as makers and administrators who are responsible, to the
board of the corporation charged to certain obligations. Actually, the obligation imposed is an
obligation of the corporation. The board of the corporation who do not fulfil the obligations
shall be sentenced to criminal penalties. The rationale is the corporation cannot be accounted
for an offense, but the administrators who perform the offense. And so the board will be
punished and convicted. 26 Thus, if there is a criminal offense in a corporation, then it is
considered as a criminal offense committed by the corporation board.
This is consistent with the meaning of article 59 of the Penal Code which states that: ―In
cases where by reason of misdemeanour punishment is imposed upon directors, members of a
board of management or commissioners, no punishment shall be pronounced against the
director or commissioner who evidently does not take any part in the commission of the
misdemeanour.‖
The subject of criminal offense in accordance with article 59 of the Penal Code is human. 27
Von Savigny expressed the theory about a fictional theory related to the corporation which,
according to the fictional theory assumes that the corporation is subject to the law. However,
it is not recognized in criminal law because the Dutch government at the time was not willing
to adopt the doctrine of civil law in criminal law.28
2. Corporations as the maker and administrator who responsible
In this model, corporations as a maker and administrator hold a responsibility, thus it
is confirmed that the corporation may be the maker. The board of a corporation designated as
the one who hold responsibility, seen as which is seen committed by a corporation is what is
done by means of corporation equipment according to the authority based on its articles of
association. Criminal offenses committed by certain person as administrator of the legal
entity. The person who leads the corporation hold a criminal responsibility, regardless of
whether he knew or not about the occurrence of the offense.29
3. Corporations as the maker who is responsible as well
In this model of responsibility, there has been a shift in the view that corporations can
be accounted as a maker besides a human being (naturlijk persoon). Thus, rejection of
corporate criminal prosecution has experienced a change by accepting the concept of
functional offender (functioneel daderschap).30 So in this third system of responsibility is the
beginning of the direct responsibility of the corporation.
This model is the beginning of the direct responsibility of the corporation where the
corporation as well as the maker who is responsible. The motivation is to pay attention to the
development of the corporation itself, which is for some particular offense, the enactment of
the board of a corporation as the one to be convicted is not enough. In the economic offenses
is not impossible that the fine imposed as a penalty to the board of the corporation compared
to the benefits that have been received by the corporation to perform the act or losses incurred
in the community, or suffered by rivals, gains or losses and it is greater than the penalties

25
Setiyono, Op cit, p. 12-14.
26
Dwidja Priyatno, Op cit, p. 53-54.
27
Sudarto, dalam Muladi dan Dwidja Priyatno, Op cit, p. 61.
28
Hamzah Hatrik, Op cit, p. 30.
29
Ibid, p. 55.
30
Muladi, dalam Setiyono, Op cit, p. 16.
 155

imposed as punishment. The punishment of the board of the corporation does not provide
sufficient assurance that the corporation will not commit such actions which have been
forbidden by the law. It is not enough to hold the repression of offenses committed by or with
a corporation. Therefore it is also necessary to convict corporation and the board of the
corporation or just the board of the corporation.31
Not only that, there are some things that can be used as a justification that the corporation as
a maker and at the same time as the one who is responsible, firstly, because in many criminal
acts of economic and fiscal, corporate profits or losses suffered by the community can be so
big, so it will not may be balanced when the criminal is only imposed on the board alone.
Second, with only criminalize the board only, there is no guarantee that the corporation will
not repeat the criminal offense again. With corporate criminalized by type and weight
according to the nature of the corporation, the corporation is expected to be able to comply
with the relevant regulations.32

G. CORPORATION (LEGAL ENTITY) AS THE SUBJECT OF A CRIMINAL

OFFENSE IN THE LAW OF ELECTRONIC INFORMATION AND
TRANSACTIONS
Formulation of criminal offenses in the Law of Electronic Information and
Transactions always begins with the words "any person" which showed the understanding of
a person. Article 1 sub 21 of the Law of Electronic Information and Transactions affirmed
that the definition of "person" is a person, an individual, either Indonesian citizens, foreign
citizens, or a corporation. This indicates that the subject of a criminal offense in the Law of
Electronic Information and Transactions is not only a person but also a legal entity.
Corporate issues as the subject of criminal law cannot be separated from the aspects
of civil law. In civil law, the individual is not the only subject of law. This is because there
are still other legal subjects who have rights and can take legal actions together with the
individual. This view is different from the Penal Code which only recognizes an individual as
a subject of law. In other words, human is the one who can commit criminal acts and be
prosecuted and burdened with criminal responsibility. It is based on Article 59 of the
Criminal Code which states that: ―In cases where by reason of misdemeanour punishment is
imposed upon directors, members of a board of management or commissioners, no
punishment shall be pronounced against the director or commissioner who evidently does not
take any part in the commission of the misdemeanour.‖
The Indonesian Penal Code does not regulate a legal entity or corporation as a legal
subject. Therefore, the placement of the corporation as a legal entity or natural person who
applies in Indonesia stipulated in legislation outside Penal Code. Corporate governance as
legal subjects outside the Penal Code justified by the provisions of article 103 Penal Code,
which states that: ―The provisions of the first eight Chapters of this Book shall also apply to
facts on which punishment is imposed by other statutory provisions, unless determined
otherwise by statute.‖
Article 103 of the Penal Code is a bridge that provides the basis for justifying a law
which deviates from Penal Code as a general rule of criminal law. It can also be regarded as a
special criminal law which in terms of regulation contains penal provisions. As explained by
Sudarto:33
―Criminal laws other than the Penal Code, which is the parent of criminal law rules.
The central notch of Penal Code is mainly because it contains the general provisions
31
Dwidja Priyatno, Op cit, p. 57.
32
Setiyono, Op cit, p. 15.
33
Sudarto, Kapita Selekta Hukum Pidana, Alumni, Bandung, 1986, p. 64.
 156

of the criminal law in Book I, which applies also to the crimes that are beyond Penal
Code, unless the statute determine otherwise (Article 103 of Penal Code). The
understanding that we asked is broad, because not questioning: a. codifying problem
or not; b. criminal law issues "in the real sense" or administrative criminal law; c.
matter whether criminal acts involving only certain groups of people or not.‖

Further, he also explained that:34

“Arrangement of criminal law material outside the Penal Codebrings the possibility
of irregularities, both from the general and of the particular part. This irregularity can also be
about the rights of the law relating to criminal procedure, it is about the investigation,
prosecution and examination of his case in court. To what extent is the irregularities, the
more or less does not be a measure of the presence of specific criminal laws.‖
This means that Penal Code as a general rule (lex generali) of the provision of
criminal law beyond the Penal Code, so it applies the principle of lex specialis derogate lex
generali, means that the specific law waive or take precedence over the general law.
Legal entity is an association of people that enter into an agreement and on this basis
have raised an entity that meets the requirements specified by law. 35 Legal entity is also
considered as "person or persoon" so that the legal entity has their own right and obligation
apart from the people who become the officers of the legal entity. A human is termed as
―naturlijk persoon‖, whiile a legal entity termed as "rechts persoon". 36 Thus, in law, a legal
entity has its own interests as human. The interests of the legal entity shall be protected by
law and in defending the interests, legal entity can do judicial proceedings, either as plaintiff
or defendant.
The placement of the corporation as a legal subject of the criminal law can not be
separated from social modernization, according Satjipto Rahardjo, that:37
―The impact of social modernization should be recognized that the more modern the
society, will cause the social system, economic, and politic in it become more
complex, hence the need for a formal life control system will be greater. Social life
can no longer be left to the laid rule, but desired the existence of a more organized,
clear, and detail regulation. Although these ways are possible to meet the needs of a
growing society, but the problems that are caused is not few in number.‖
/
If the law allows a human to make an entity beside humans, which makes them equal
means that "the public interest need it", that is to achieve something which cannot be
achieved or is very difficult to be achieved by individuals.38
The consequences of the position of the legal entity or corporation affected the
criminal offense that can be done with some exceptions. In connection with such exceptions
Barda Nawawi Arief stated that although in principle corporation can be accounted just like
people, but there are some exceptions, which are:39
1. Conducted those cases which by its nature cannot be done by the corporation, such as
bigamy, polygamy, perjury, and etc.
2. In the case that the only punishment that can be imposed may not be charged to the
corporation, such as imprisonment or the death penalty.

34
Ibid, p. 65.
35
Soeroso, Pengantar Ilmu Hukum, Cetakan Kedua, Sinar Grafika, Jakarta, 1996, p. 238.
36
Achmad Ali, Menguak Tabir Hukum (Sebuah Kajian Filosofi dan Sosiologis), Cetakan I, Chandra
Pratama, Jakarta, 1996, p. 239.
37
Satjipto Rahardjo, Hukum Masyarakat Dan Pembangunan, Alumni, Bandung, 1980, p. 3-4.
38
Ibid.
39
Barda Nawawi Arief, Perbandingan Hukum Pidana, Rajawali Pers, Jakarta, 1990, p. 37.
 157

There are several proposed definitions of the corporation. According to Sutan Remy
Sjahdeini, the corporation can be seen from the narrow meaning, as well as a broad meaning.
Then Sutan Remy Sjahdeini revealed that: 40
― According to the narrow meaning, that is a legal entity, a corporation is a legal
figure that the existence and authority to be authorized or able to perform legal acts
recognized by civil law. That is, the civil law that recognizes the "existence" of the
corporation and give "life" to be authorized to take legal actions as a legal figure.
Similarly, the "death" of the corporation. A corporation is only "dead" legally if "the
death" of the corporation is recognized by the law..‖

Furthermore Sutan Remy Sjahdeini express the definition of corporation in broad

meaning can be seen from the definition of corporation in criminal law, which says that:41
― In criminal law, the corporation includes both legal entity and not a legal entity. Not
only legal entities such as limited liability companies, foundations, cooperatives,
associations which have been approved as a legal entity that is classified as a
corporation under the criminal law, but firm, a limited partnership or CV, and a
fellowship or maatschap, namely enterprises which according to civil law is not a
legal entity.―

From the civil aspect, the law recognized two kinds of legal subjects, individual and
legal entity, while in the criminal law or in Penal Code only recognize individual. But the law
beside the Penal Code recognize corporation as a legal subject, whether as a legal entity or
not. In line with the above opinion, Setiyono argued that:42
― The corporation is a term commonly used by the criminal law and criminology
experts to refer to a legal entity (rechtpersoon), a legal body or legal persons. The
concept of a legal entity that actually stems from the concept of civil law that grew as
a result of the development of society. The understanding the corporation in the
Indonesian criminal law is broader than the notion of legal entities, as in the concept
of civil law. In various criminal law regulations in Indonesia stated that the definition
of the corporation is an organized group of persons or property and either a legal
entity or not.‖

H. ARRANGEMENT OF CRIMINAL SANCTIONS FOR CORPORATION IN THE

LAW OF ELECTRONIC INFORMATION AND TRANSACTIONS

The arrangement of the inclusion of criminal sanctions in the Law of Electronic

Information and Transactions conducted separately with articles regulating prohibited act.
Prohibited acts set forth in Article 27 through Article 37. While the criminal provisions set
forth in Article 45 through Article 52. The following will be presented a summary of the
types of crime in the Law of Electronic Information and Transactions.

40
Sutan Remy Sjahdeini, Pertanggungjawaban Pidnaa Korporasi, Grafiti Pers, Jakarta, 2006, p. 43
41
Ibid. p. 45.
42
Setiyono, Op.Cit, p. 17
 158

Tabel 1
The Type of Criminal Sanctions in the Law of Electronic Information and
Transactions

Article Regulating Article Regulating

the Sanction Prohibited Actions Type of Criminal Sanctions
Article Paragraph Article Paragraph
45 (1) 27 (1), (2), (3), (4) imprisonment and/ or penalties
(2) 28 (1), (2) imprisonment and/ or penalties
(3) 29 imprisonment and/ or penalties
46 (1) 30 (1) imprisonment and/ or penalties
(2) 30 (2) imprisonment and/ or penalties
(3) 30 (3) imprisonment and/ or penalties
47 31 (1), (2) imprisonment and/ or penalties
48 (1) 32 (1) imprisonment and/ or penalties
(2) 32 (2) imprisonment and/ or penalties
(3) 32 (3) imprisonment and/ or penalties
49 33 imprisonment and/ or penalties
50 34 (1) imprisonment and/ or penalties
51 (1) 35 imprisonment and/ or penalties
(2) 36 imprisonment and/ or penalties
? 37 ?

Based on the above table it can be seen also that criminal sanctions that regulated in
the Law of Electronic Information and Transactions only consists of two kinds, namely
imprisonment and fines. If the above types of crime associated with the provision of Article
52 paragraph (4) of the Law of Electronic Information and Transactions, the criminal
sanctions which may be imposed on the corporation is imprisonment and or a penalty (plus
two-thirds). Based on this, the question arose as to whether imprisonment can be applied
against the corporation? Or corporation can only be sentenced to a penalty?
Provisions of criminal sanctions for corporation in the Law of Electronic Information
and Transactions, regulated in Article 52 which contains provision of the addition of criminal
sanctions, paragraph (4) states that "Criminal acts as intended by Article 27 through Article
37 committed by corporations shall be sentenced to the basic sentence plus two-thirds."
Based on this paragraph can be drawn two important things about the sanctions for the
corporation: (1) that the principal of criminal sanctions also apply to corporations that
violated Article 27 through Article 37, and (2) that the main criminal sanctions plus two-
thirds. The use of imprisonment for the corporation is impossible.43 Corporations may not be
sentenced to death, imprisonment and confinement. So that criminal sanctions can be
imposed on a corporation in violation of Article 27 through Article 37 of the Law of
Electronic Information and Transactions is only fined, with plus two-thirds.
Another problem arises in the application of the penalty is a fine substitute for
criminal provisions when corporations cannot fulfil the obligation to pay the penalties. The
Law of Electronic Information and Transactions does not regulate at all about the
replacement of criminal penalties. This means, the applicable general provisions in Penal
43
Setiyono, op cit p. 118
 159

Code which is in Article 30, that the maximum imprisonment of replacement is 6 (six)
months or can be a maximum of 8 (eight) months if there is a weighting
(recidivism/concursus). The next problem is imprisonment as a replacement may not apply to
corporations. This is a legal loophole for corporations who have committed a crime to not
carry criminal penalties that have been handed down to him, because there is no provision of
criminal sanction to substitute a fine.
The use of criminal sanctions in the Law of Electronic Information and Transactions,
especially for corporations, should pay attention to the purpose of punishment. Punishment is
one means to address the social problems that exist in society in terms of achieving the goal,
which is to the welfare of society. Packer describes the requirements in terms of the
application of criminal sanctions in order to function optimally. These requirements
include:44
a) According to the society, the prohibited act is considered as a danger to society and
not justified by what society considered important;
b) The application of criminal sanctions must be consistent with the goals of the
punishment;
c) The eradication of the prohibited act is not going to hinder people's behavior desired;
d) The application of criminal sanctions can be applied in a manner that is not biased and
non-discriminatory;
e) The application of criminal sanctions through the process of criminal law will not
give the impression to aggravate both qualitatively and quantitatively;
f) There are no sanctions other than criminal sanctions that can be applied in resolving
the prohibited act.

The setting of corporate criminal liability is closely related to the imposition of

criminal sanctions. Penal Code regulates the criminal sanctions for perpetrators of criminal
offense in general, if the provisions of a special nature has not been regulate. Article 10 of
Penal Code regulates the criminal types, namely:45
a. Main criminal sanctions, which consists of:
1) death penalty
2) imprisonment
3) confinement
4) penalty
b. Additional criminal sanctions:
1) Revocation of some specific rights
2) Deprivation of some specific goods
3) Verdict

The imposition of sanctions in the form of criminal sanctions against corporate crime
filled with an economic motive should be considered as true urgency. 46 For corporations,
imprisonment and the death penalty cannot be imposed on the corporation. Criminal types
that can be applied and imposed on corporations that commit criminal offense is main
criminal sanction in form of criminal penalties, additional criminal, and criminal acts.
Criminal types that can be imposed on the corporation are:47
1. The closure in whole or in part the company for a certain time;

44
Setiyono, op.cit., p 117
45
Erdianto Effendi, Hukum Pidana Indonesia: Suatu Pengantar, RefikaAditama, Jakarta, 2011, p. 23
46
Setiyono, op.cit., p 116
47
M. Sholehuddin, Sistem Sanksi Dalam Hukum Pidana, Raja Grafindo Persada, Jakarta, 2003, p 173
 160

2. Revocation in whole or in part certain facilities that have been or can be obtained
from the government by the company for a certain time;
3. The placement of the company under guardianship for a certain time.
Corporate recognition as a subject of criminal law lead to the development of the type
of crime that applies to the corporation. Severity of losses on committed corporate criminal
offense may lead to the consideration of criminal compensation for the corporation. 48
Severity of committed criminal offenses affect the severity of the criminal sanction which is
imposed.
There must be weaknesses and advantages of the application of criminal penalties.
The weaknesses of the application of criminal penalties, among others:49
1) Criminal penalties are not directly perceived by the convict because criminal penalties
only paid or incurred by the third party.
2) Criminal penalties may also burden the innocent third parties, so the third parties will
be forced to feel the criminal penalties.
3) Criminal penalties are more profitable for the capable person.
4) There are difficulties in the collection of penalties by prosecutors as the executor.

In addition to the weaknesses of the application of the criminal penalties as described

above, on the other hand the application of criminal penalties also has advantages, namely:50
1) The imposition of criminal penalties can hide the identity of the convict.
2) Criminal penalties are not stigmatizing.
3) Criminal penalties can increase revenue for the State and the legal process is easier
and cheaper.

Criminal penalty is the only main criminal sanction that can be imposed to any
corporation committed crimes or offenses, so that the imposition of criminal penalties on
corporations become a necessity (imperative). The position of criminal penalties which
become the main criminal sanction for corporation cause criminal penalties should be able to
prevent the corporation to commit the crime again or prevent other corporations to commit
criminal acts. In order for criminal penalties can be effective or having a deterrent power, the
criminal penalties imposed on corporations that commit criminal offense must be very heavy.
The imposition of a very severe penalty is intended that the corporation cannot be
economically calculated between the risk and the cost incurred by the target of crime. A
penalty or sanction will be effective as a deterrent if the potential proceeds of crime less
severe than the penalty imposed.

I. ELEMENTS THAT SHOULD BE REGULATED IN A CORPORATE CRIMINAL

LIABILITY REGULATION
In identifying the things that need to be regulated in a corporate criminal liability is
not separated from the form and nature of the corporation. At least there are four things that
need to be regulated specifically regarding corporate criminal liability according Barda
Nawawi Arief, which are:51
a. When the corporation is said to do a criminal act;
b. Who can be accounted for;

48
Ibid
49
Niniek Suparni, Eksistensi Pidana Denda Dalam Sistem Pidana Dan Pemidanaan, Sinar Grafika,
Jakarta, 2007, p 67-68
50
Ibid, p 68
51
Barda Nawawi Arief, op cit, p. 151.
 161

c. In the terms of how corporations can be accounted for;

d. What are the type of sanctions that can be imposed to any corporation.
The following will be described on the need for those four things to be arranged
specifically in a regulation.
1. Criteria of Corporations Conducting Criminal Offense
The subject of criminal offense is a person and a corporation. Thus a criminal offense
may be committed by a person only, or corporation or both. The problem that appears is
when is a crime can be said to be committed by a corporation. This is because basically the
corporation can only run by people.
The provisions of criteria or restrictions on when a corporation can be said has
committed a criminal offense should be clearly regulated to determine which party that can
be accounted for. The provisions that can be used as the criteria or guidelines for determining
when a corporation has been said to commit criminal offense spread over several laws.
In the Law Number 31 Year 1999 concerning the Eradication of Corruption has been
regulated in particular in Article 20 paragraph (2) about the criteria of corporation
committing corruption: ―Criminal acts of corruption committed by a corporation are action by
persons either in the context of a working relationship or other relationships, undertaken
within the environment of the aforementioned corporation, either singularly or jointly‖.
However, the provision of "other relationships" is still considered very wide so it needs to be
clarified again what is meant by the term "other relationships" to narrow the interpretation.
The same Redactional also contained in Article 17 paragraph (2) of Law No. 15 Year
2003 concerning Government Regulation in Lieu of Law No. 1 Year 2002 on the Eradication
of Terrorism, Become a Law, which states: ―Criminal acts of terrorism carried out by the
corporation if the offense is committed by people either based on the employment
relationship or other relationship, act in the corporate environment either alone or jointly‖.
Slightly different provisions contained in Article 42 paragraph (1) of Law No. 18
Year 2008 concerning Waste Management, which adds a provision "is carried out in
accordance with the achievement of the corporation objective": ―Criminal action is regarded
as corporation criminal action if the criminal action is carried out in accordance with the
achievement of the corporation objective and it is carried out by the officer who has the
authority to decide policy on behalf of the corporation or to represent the corporation to carry
out legal action or having the authority to manage and/or to supervise the corporation.‖
The most complete formulation of criteria when the corporation has committed a
criminal act contained in Law No. 8 Year 2010 concerning Countermeasure and Eradication
of Money Laundering in Article 6 paragraph (2), describes:
―Sentence shall be subject to the Corporation in the event that the criminal action of
Money Laundering:
a. is committed or ordered by the Corporation Control Personnel;
b. is committed in the framework of the objectives and purposes of the Corporation;
c. is committed in according with the function of perpetrator or the person who give the
order; and
d. is committed to give benefit for the Corporation.‖

The four criteria in the above articles have a more clear and detail provision than any
other law, which only mention ""based on labor relations and other relation, acts in a
corporate environment". Another law which also regulate in such a way is Law No. 3 Year
2011 concerning Fund Transfer in Article 87 paragraph (2) and (3), stated that:
(2) Corporations subject to criminal liability against an act done for and/or on behalf of
the corporation if the act is included in the scope of business as specified in the
statutes or other provisions applicable to the said corporation.
 162

(3) Criminal imposed against the corporation if the criminal action:

a. conducted or ordered by the personnel controlling the corporation;
b. performed in order to fulfil the aim and purpose of the corporation;
c. conducted in accordance with the duties and functions of the perpetrator or the
commander; and
d. done with the intent to benefit the corporation.‖

Based on the provisions above, it can be concluded that a criminal offense committed
by a corporation if the criminal offense:
1) performed by a person alone or on the order of the personnel controlling the
corporation, the authorized personnel make decisions on behalf of the corporation or
representing the corporation to perform a legal act or has the authority to control and/
or supervise the corporation;
2) performed in its business scope as specified in the articles of association or other
provision applicable to the corporation concerned;
3) performed in order to meet the intent and purpose of the corporation;
4) performed in accordance with the duties and functions of the perpetrator or any of the
command;
5) performed with the purpose of providing benefits to the corporation; and
6) performed either alone or together.

2. The party who is accounted for

There are three models of corporate responsibility, which is known, namely:
1) The board of corporation as the maker who responsible.
2) Corporation as the maker and administrator who responsible.
3) Corporation as the maker who is responsible as well.

Beside, in Article 52 of Law of Electronic Information and Transactions "Criminal

acts as intended by Article 27 through Article 37 committed by corporations shall be
sentenced to the basic sentence plus two-thirds" shows that this law only recognize corporate
responsibility, either the criminal offenses committed by the corporation or the corporation
board. This provision is a new model of corporate criminal liability which has been known.
In other words, there are two models of corporate responsibility that is used in the Law of
Electronic Information and Transactions, which are a corporation as the maker who hold the
responsibility and the board of the corporation as the maker who is responsible as well.
In the model of corporate responsibility, there is a change that a corporation can be
accounted as a maker besides as a human being (naturlijk persoon). Thus, rejection of
corporate criminal prosecution has been amended to accept the concept of the functional
offender (functioneel daderschap).52 It means that this responsibility system is the beginning
of the direct responsibility of the corporation.
This model is the beginning of the direct responsibility of the corporation where the
corporation as well as the maker who have the responsibility. The motivation is to pay
attention to the development of the corporation itself, which is for some particular offenses,
the enactment of the board of the corporation as the one who can be punished is not enough.
In economic offenses, it is not impossible that the fine imposed as a penalty to the board
compared to the benefits that have been received by the corporation to perform the act or
losses incurred in the community, or suffered by rivals, gains or losses and it is greater than
the fine imposed as punishment. The criminal punishment for the board of the corporation

52
Muladi, dalam Setiyono, op.cit, p. 16.
 163

does not provide sufficient assurance that the corporation will not commit the offense which
has been forbidden by the law again. It turns that it is not enough to hold the repression of
offenses committed by or with a corporation. Therefore it is also necessary to give a criminal
punishment to the corporation, and the board of the corporation or just the board.53
Not only that, there are some things that can be used as a justification that the
corporation as a maker and at the same time the one who responsible, firstly, because in many
criminal acts of economic and fiscal, corporate profits or losses suffered by the community
can be so big, so it will not may be balanced when the criminal is only imposed on the board
alone. Second, with only criminalize the board only, or there is no guarantee that the
corporation will not repeat criminal offenses again. With corporate criminalized by type and
weight according to the nature of the corporation, the corporation is expected to be able to
comply with the relevant regulations.54
The more appropriate provision is that it allows the board or corporation itself to be
accounted for, either individually or jointly, if the corporation has committed the crime.
Provisions concerning the administrators and corporate responsibility are contained in some
legislation.
In the Law No. 3 year 2011 concerning Fund Transfer in Article 87 paragraph (1),
stated that:‖if the criminal acts as intended in Article 80 through Article 85 carried by the
corporation, the criminal liability imposed on the corporation and/or its managers.‖
The Law No. 18 Year 2012 concerning Food also regulates about the responsibility of
the board of the corporation and the corporation itself, which is stated in Article 148
paragraph (1): ―In the case of action as intended in Article 133 to Article 145 is performed by
corporation, other than imprisonment and fine of its managers, punishment can be imposed
towards the corporation in the form of fine by weighting 3 (three) times than fine towards an
individual.‖
3. Criteria of Corporations that must be Responsible
The criteria of when a corporation can hold a criminal responsibility is not separated
from the criteria of when a corporation has committed a crime. If the criterion of when a
corporation has committed a crime has been fulfilled, then the responsibility can be charged
to the corporation. Later, the provision that needs to be regulated is who have to represent the
corporation in a legal process that must be followed? Some laws have given examples of who
should represent the corporation in legal proceedings.
The Law No. 17 Year 2006 concerning the Amendment of Law No. 10 Year 1995
concerning Customs in Article 108 paragraph (3) said that: ―In case a criminal lawsuit is
placed upon a legal Person, firm or corporation, association, foundation or cooperative, they
may be represented by one member of their management and the members can be represented
by his/her behalf which judicially could ask responsibility according to a legal person itself.‖
This provision indicates that the obligation of the board to represent the corporation in
facing criminal charges is in accordance with the shape or structure of the corporation.
The Law No. 31 Year 1999 concerning the Eradication of Criminal Acts of
Corruption regulates a more detail provision regarding the responsibility of the board of the
corporation to represent corporate obligations in facing criminal charges. Article 20 states
that:
(3) In the event that a corporation is prosecuted, the aforementioned corporation
shall be represented by its managers.
(4) Managers representing corporations as referred to in paragraph (3) may be
represented by other persons.

53
Dwidja Priyatno, op.cit, p. 57.
54
Setiyono, op.cit, p. 15.
 164

(5) Judges may order that managers of a corporation appear before the court
themselves and may also order that the aforementioned managers be escorted
to court hearings.
(6) In the event that criminal charges are brought against a corporation, a
summons to appear before the court and the dispatch of such summons shall
be addressed to the place of residence of the managers or their offices.‖

There is also a similar provision contained in the Law No. 44 Year 2008 concerning
Pornography in Article 40, as follows:
(1) In the case of Criminal Pornographic Acts in the name or by the name of a
Corporation, Indictments and Decrees shall be made concerning the Corporation,
Board, Management and/or Managers.
(2) In Criminal Acts of Porn, concerning Corporations when Criminal Acts concerning
People in the grounds of related work in spite of the grounds of unrelated work steps
taken in the domain mentioned.
(3) In the case of Criminal Prosecution concerning a certain Corporations, Corporation is
represented by the Board.
(4) The Board/Management representing the interests of Corporations as defined by 3
have the right to representation by others.
(5) The Judge with Jurisdiction over Management in order that Corporations appear alone
of Regulations and necessity of governance over Management shall appear alongside
the Regulations.

Based on the above regulations, it can be formulated about the party representing the
corporation in facing criminal charges as follows:
1. In the case of criminal charges made against a corporation, at the time the prosecution
presented by the board who legally be held responsible according to the form of legal
entity concerned.
2. The board of the corporation may be represented by other person.
3. Judges may order the board of the corporation to appear before the court themselves
and may also order the board of the corporation to be escorted to court hearings.
4. In the case of criminal charges made against the corporation, the call for facing and
handover a summons was delivered to the house or office of the board of the
corporation.

4. Sanctions for Corporation

The arrangement of the imposition of criminal sanctions for the corporation must
consider the nature of the corporation which is different from people. A responsibility of
corporation and people is comparable, but there are exceptions. At least there are two things
that can be used as an exception to corporate responsibility, which are:
1) In those cases which by its nature cannot be done by the corporation, such as
bigamy, rape, perjury; and
2) In the case that the only crime which may be determined cannot be subjected
to the corporation, such as imprisonment and the death penalty.55
Thus, the criminal sanctions that can be imposed on corporation are:
a). Criminal penalty;
b). Additional criminal sanction;
c). Procedural measures;

55
Setiyono, op cit, p 109
 165

d). Administrative measures;

e). Civil penalties or compensation.
While the additional sanctions are:56
a). The closure of all or part of the corporation in a certain time or forever;
b). Revocation of the facilities provided by the government to the corporation
concerned within a certain time or forever;
c). Placing the corporation under guardianship within a certain time.

The form of sanctions for corporations in the legislation that have existed are very
varied. But in general, there are two forms of criminal sanctions, the main sanction and
addtitional sanction. The Law No. 8 Year 1999 concerning Consumer Protection in Article 63
states that in addition to criminal penalty, additional criminal sanctions are:
a) confiscation of certain goods;
b) announcement of judge‘s decision;
c) payment for damages;
d) injunction to stop certain activities that cause damages to the consumers;
e) the obligation to pull out goods from circulation; or
f) revocation of business permit

Similar to the provisions of Article 15 paragraph (2) of Law No. 21 Year 2007
concerning the Eradication of the Criminal Act of Trafficking in Persons states that the
additional sanctions for corporations are:
a) revocation of its business license;
b) confiscation of proceeds derived from the crime in question;
c) revocation of status as a legal entity;
d) dismissal of the management; and/or
e) prohibition on the management to establish another corporate entity
within the same line of business.

Different arrangements contained in Law No. 32 Year 2009 concerning the

Environmental Protection and Management. Article 119 and 120 states that:
―Article 119
Besides the penalty as referred to in this law, the business entitles shall be liable to
additional penalty or disciplinary measures in the form of:
a. seizure of profits earned from the Dime;
b. closure of business and/or activity place wholly or partly;
c. improvement of impacts of the crime;
d. requirement for working what is neglected without right; and/or
e. placement of companies under custody for 3 (three) years at the maximum.

Artide120
(1) In executing the provision as referred to in Article 119 letter a, letter b, letter c,
and letter d, prosecutor shall coordinate with institution in charge of
environmental protection and management affairs to implement execution.
(2) In executing the provision as referred to in Article 119 letter e, the government
shall be authorized to manage business entities subject to sanction of
placement under custody to implement the legally fixed court Verdict.‖

56
Ibid, p 119
 166

In the setting above, there are procedural measures such as recovery from a criminal
offense and obligation to do the things that have been neglected without any rights. And it
also regulates the involvement of prosecutors as an executor in implementing the sanctions
that have been imposed.
The Law No. 9 Year 2013 concerning the Financing of Terrorism added provisions on
criminal sanction as a substitute of penalty. Article 8 states that:
(4) Main sanction imposed against the corporation in the form of a fine of up
Rp100.000.000.000,00 (one hundred billion rupiah).
(5) In addition to the criminal penalties as mentioned in paragraph (4), against
corporation may also be sentenced additional criminal sanction in the form of:
a. freezing part or all activities of the corporation;
b. revocation of business license and declared as forbidden corporation;
c. dissolution of the corporation;
d. expropriation of assets of the corporation to the State;
e. corporate takeover by the state; and / or
f. announcement of the court decision.
(6) In case that the corporation is unable to pay the fine as referred in paragraph (4)
criminal fines replaced with deprivation of the property of the corporation and/
or Corporation Control Personnel relating to the crime of terrorism which the
value is equal to the criminal fine decision which already imposed.
(7) In the case of the sale of the property of the corporation that were seized as
referred to in paragraph (6) is not enough, imprisonment as a substitute of
fines imposed against the Corporation Control Personnel by considering the
fine that has been paid.

Based on the above provisions, the sanctions that can be given to the corporation are:
1). Criminal penalties (with or without weighting);
2). Criminal sanction as a substitute of penalties;
3). Additional criminal sanctions, such as:
a) freezing part or all activities of the corporation;
b) revocation of business license;
c) dissolution of the corporation;
d) expropriation of assets of the corporation to the state;
e) corporate takeover by the state;
f) announcement of the court decision;
g) payment of compensation;
h) appropriation of profits derived from the crime;
i) dismissal of the board of the corporation;
j) prohibition to the board to set up a corporation in the same field;
k) placement companies under guardianship.

J. CONCLUSION
Based on the discussions above, it can be concluded that in the light of the principle
of legality, a regulation must be written (lex scripta), formulated in detail (lex certa), not
apply retroactively (non-retroactivity) and not interpret by analogy. Furthermore, the
provision in paragraph (4) Article 52 of the Law of Electronic Information and Transactions
containing ―Criminal acts as intended from Article 27 to Article 37 committed by
corporations shall be sentenced to the basic sentences plus two-thirds‖, would lead to the
failure of law enforcement. The reason is that the basic sentences, in the Act, are only
imprisonment and penalties. However, based on the nature of corporation, imprisonment will
 167

not be able to be imposed to corporation. Thus, penalties are the only sanction that will be
able to be imposed to corporation.
On the other hand, in Article 30 Penal Code regulates that the maximum
imprisonment of replacement of penalties is 6 (six) months or can be a maximum of 8 (eight)
months if there is a weighting (recidivism/concursus). Thus, the next problem is
imprisonment as a replacement may not apply to corporations. In the other words,
corporation will not be centenced when they violate the Law.
Furthermore, the elements that should be specifically regulated regarding corporate
criminal responsibility are:
a. when corporation shall be categorized committing crime,
b. who party shall be responsible when corporation commits crimes,
c. when corporate shall bear responsible,
d. what punishment shall be proper for corporation.

BIBLIOGRAPHY

Achmad Ali, Menguak Tabir Hukum (Sebuah Kajian Filosofi dan Sosiologis), Cetakan I,
Chandra Pratama, Jakarta, 1996
Adami Chazawi, Pelajaran Hukum Pidana Bagian I, PT. RajaGrafindo Persada, Jakarta,
2005
Andi Hamzah, Asas-asas Hukum Pidana, Rineka Cipta, Jakarta, 1994
Barda Nawawi Arief, Masalah Penegakan Hukum dan Kebijakan Hukum Pidana dalam
Penanggulangan Kejahatan, Kencana Prenada Media Group, Jakarta, 2007
------------------, Pelengkap Bahan Kuliah Hukum Pidana I, Fakultas Hukum Universitas
Diponegoro, Semarang, 1984
-----------------, Perbandingan Hukum Pidana, Rajawali Pers, Jakarta, 1990
Dwidja Priyatno, Kebijakan Legislasi Tentang Sistem Pertanggungjawaban Pidana
Korporasi Di Indonesia, CV.Utomo, Bandung, 2004
Erdianto Effendi, Hukum Pidana Indonesia: Suatu Pengantar, Refika Aditama, Jakarta 2011
Fajrimei A. Gofar, Asas Legalitas Dalam Rancangan KUHP 2005, ELSAM, Jakarta, 2005
Hamzah Hatrik, Asas Pertanggungjawaban Korporasi Dalam Hukum Pidana Indonesia (Strict
Liability dan Vicarious Liability), Raja Grafindo Persada, Jakarta, 1996
M. Sholehuddin, Sistem Sanksi Dalam Hukum Pidana, Raja Grafindo Persada, Jakarta, 2003
Mahrus Ali ,Kejahatan Korporasi, Arti Bumi Intaran,Yogyakarta, 2008
Moeljatno, Asas-asas Hukum Pidana, Rineka Cipta, Jakarta, 2002
Muladi dan Dwidja Priyatno, Pertanggungjawaban Pidana Korporasi, Kencana, Jakarta,
2010
Niniek Suparni, Eksistensi Pidana Denda Dalam Sistem Pidana Dan Pemidanaan, Sinar
Grafika, Jakarta, 2007
Satjipto Rahardjo, Hukum Masyarakat Dan Pembangunan, Alumni, Bandung, 1980
Setiyono, Kejahatan Korporasi, Bayumedia Publishing, Malang, 2009
Soeroso, Pengantar Ilmu Hukum, Cetakan Kedua, Sinar Grafika, Jakarta, 1996
Sudarto, Hukum Pidana I, Yayasan Sudarto, Semarang, 1990
----------, Kapita Selekta Hukum Pidana, Alumni, Bandung, 1986
Sutan Remy Sjahdeini, Pertanggungjawaban Pidnaa Korporasi, Grafiti Pers, Jakarta, 2006
 168

LIABILITY OF DATA BREACH PERPETRATOR IN INDONESIA

Rosalinda Elsina Latumahina S.H, M.Kn1

ABSTRACT
Privacy, or the protection of personal data, is one of the most complex legal issues in cyber
law. Unlike in some of our neighboring countries, until now there is no specific legislation in
Indonesia regulating the protection of personal data (privacy protection act). This matter is
only regulated in Article 26 of Law No. 11 Of 2008 on Information and Electronic
Transactions and Article 15 of Government Regulation No. 82 Of 2012 on the Operation of
Electronic System and Transaction, which stipulates that the use of personal data should be
done with the consent of the person concerned, and that any person whose rights are violated
can file a lawsuit. The lawsuit would be based on unlawful act, and for doing the unlawful act,
the perpetrator has the rebuttable presumption of liability or known as the fault liability with
reversal burden of proof. Nonetheless, this issue is considered very necessary to be set in its
own legislation, to improve protection for IT users in Indonesia .

Keywords – privacy, legal protection, liability.

I. INTRODUCTION
The use of information technology in Indonesia showed a significant increase from
year to year. Growth in Indonesia‘s internet sector is accelerating, with consensus forecasts
predicting that the number of internet users will grow from 55 million in 2012 to 125 million
in 2015. So from a user base that is already larger than Korea‘s, the growth rate in Indonesia
will exceed 30% per annum for the next five years. Three fundamental keys for the growth
are:
a. Economic growth is robust and consistent at around 6% per year, and personal
spending levels are currently rising by over 10% per year.
b. The middle class in Indonesia is growing rapidly, bringing with it strong demand for
technology devices and online services.
c. Intense competition between the mobile companies is pushing prices down and also
raising consumer awareness through mass market advertising campaigns. 2

The development of information technology looks at the emergence of various types

of activities based on this technology, such as e-government, e-commerce, 3 and other
varieties of activities based on cyberspace. Communication in cyberspace by the presence of
the Internet has changed the way to communicate, because the Internet is able to break down
the boundaries between countries. Information technology has changed the lifestyle of
people globally and causes changes in the socio-cultural, economic, and legal framework that
goes significantly. Although internet penetration in the community is still very less when

1
Faculty of Law, Universitas Pelita Harapan Surabaya, Email:
rosalinda.latumahina@uphsurabaya.ac.id
2
Indonesia‘s Dynamic Internet Market, http://redwing-asia.com/market-data/market-data-internet/.
3
Definition of E-Commerce by Harvard Law School: ―The broadest definition of e-commerce is "the
conduct of transactions by electronic means." (http://cyber.law.harvard.edu/olds/ecommerce/introduction.html).
The Electronic Cornmerce Expert Group (ECEG) Australia give the definition as below: ―Electronic commerce
is a broad concept that covers any commercial transaction that is effected via electronic means and would
include such means as facsimile, telex, EDI, Internet and the telephone. Other definition says that E-commerce
is the use of electronic systems to engage in commercial activities‖. (Michael Geist, A Guide to Global E-
Commerce Law, University of Ottawa, p.1).
 169

compared with the total population of Indonesia, now the electronic information and
communication system has been implemented in almost all sectors of life in society. This in
turn also resulted in the creation of a new market that has driven the development of the
economic system of the society, from the traditional economy based on manufacturing
industry towards digital economy based on information, intellectual creativity and science
that is also known as the Creative Economy. 4
Internet usage in various fields of life is not just about making things easier, but also
spawned a number of issues, including legal issues. One of the legal issues that arise are
issues related to the protection of personal data (the protection of privacy rights). Privacy is
one of the most complex legal issues facing e-commerce ventures today. Often when
someone is doing a transaction or enrollment in an organization or mailing list on the internet,
he/she must transmit a certain personal data. It often happens that the internet user then
receives a variety of junk mail in his/her inbox, which most likely originated from the leakage
of personal data that has been given. 5 Delivery of junk mails is the most lenient form of
violation of personal data, because often the personal data is used for more severe criminal
acts such as burglary or bank account extortion.
There are several cases of personal data breaches which are known to the public. One
is a case of infringement of Sony Corp., which in April 2011, a group of hackers broke into
Sony's PlayStation Network and stole data from more than 77 million accounts. The attack is
believed to be the largest in the history of the Internet and causing Sony to shut down the
Playstation Network. As a result of the infringement, the company estimates it will lose its
profit up to Rp 1.45 trillion. As compensation Sony has offered an incentive for users of the
PlayStation Network to go back to their system after an attack by hackers. 6 In 2011 there was
also a case on personal data breaches of 25 million subscribers of Telkomsel, the biggest
mobile provider in Indonesia. The absence of comprehensive data protection legislation in
Indonesia is believed to have contributed to trading of personal data by insurance companies,
banks and mobile phone service providers for telemarketing, and has created widespread
public distrust.7
Based on the data from the Norton Report 2013, the level of potential risk of cyber
crime in Indonesia has entered a state of emergency. According to the websIET Id-SIRTII /
CC (Indonesia Security Incident Response Team on Internet Infrastructure / Coordination
Center), the number of cyber crime in 2013 continues to show improvement.
The number of cyber crime is at its peak in 2013. The cases of security breaches
targeting credit and debit card users in that year hit more than 40 million consumers. In
addition, there were also attacks on social networking sIETs such as Twitter, Facebook,
Evernote, and so on. In that year, for the first time ever the computer security incidents
become things that worry many novice user. The findings were revealed based on
security reports from telecommunications company Verizon, published on Wednesday
(16/04/2014). That Data Breach Investigation Report, which is released by Verizon
every year, has received recognition from the IT industry. Verizon reported that at least
there were about 50 companies and organizations that get cyber security attacks, covers
more than 63 thousand computer security breach incidents, of which 1,347 cases have
4
Edmon Makarim, Tanggung Jawab Hukum Penyelenggara Sistem Elektronik, Jakarta: Raja Grafindo
Persada, 2010, p. 2.
5
Asril Sitompul, Hukum Internet, Pengenalan Mengenai Masalah Hukum Di Cyberspace, Bandung:
PT.Citra Aditya Bakti, 2001, p. 25.
6
Jaringan Sony Dibobol Lagi Jutaan Data Dicuri, http://www.tempo.co/read/news/2011/06/03/ 07233
8366/, June 3, 2011.
7
Graham Greenleaf and Sinta Dewi, Indonesia's Data Protection Regulation 2012: A Brief Code with
Data Breach Notification (April 16, 2013). Privacy Laws & Business International Report, Issue 122, 24-27,
April 2013; UNSW Law Research Paper No. 2013-36.: http://ssrn.com/abstract=2280044, p.1.
 170

been confirmed as a breach of security in more than 95 countries. The number of cyber
attacks is, according to Verizon, continues to increase from year to year. And in the last
2013 the phenomenon reaches its peak. Approximately 1,300 more confirmed data theft
last year were made with nine basic attack patterns. But Verizon does not break them
one by one. 8
The majority of these attacks come in the form of malware or phishing and more
targeted at banking institutions and government. Phishing is an attempt to gain an important
and confidential information illegally, such as User ID, Password, PIN, bank account
information, credit card information, or other confidential information. The term phishing is
derived from English, namely fishing, which in this case means fishing confidential
information of others. Phishing is a crime in cyberspace (cyber crime) that often occurs.
The threat of data breach in Indonesia has become increasingly prominent, especially
since the government started a program of electronic ID card (e-KTP) which is a program
that records personal data and done by the government. E-KTP card program was first
launched in early 2011, which is also the implementation of the Citizen‘s Identity Number
(NIK) program. This program requires a single identity of each citizen, which is valid for life.
Each citizen will get one card with the NIK in it. The government will record entire personal
information of citizens, including their physical attributes. The record of physical
characteristics is carried out with the scanning of fingerprints and retina, which will be used
to validate biometric ID card holders. According to Ministry of Internal Affairs, the results of
the data recorded will then be planted in the ID card. Personal data that is recorded in e-KTP
prone misused by parties who are not responsible, especially if the security is less.
There are ongoing moves within various Ministries to develop a full data protection
law, and the reasons for this are various, and discussed briefly at the end of this article. In the
Ministry of Home Affairs it is due to the launching of a national Electronic Identity Card
Program that has caused public concern, resulting in some privacy protections in the Law on
Public Administration. Another impetus comes from the international demand of partners of
Indonesia in economic cooperation, including in ASEAN and APEC, and generally to further
Indonesia‘s strategic position on international trade including electronic commerce.9
Hence the problems above, we need to give special attention regarding the security
and legal certainty in the use of information technology, media, and communications in order
to develop optimally. There are three approaches to provide security in cyber space, namely
the approach of legal aspects, technological, and socio cultural ethical. To solve the security
problems in the implementation of the electronic system, a legal approach is important
because without the rule of law, the utilization of information technology is not optimal.10

II. RESEARCH METHOD

To solve the problem, a normative research method is used. Normative research is the
study of lIETrature in order to obtain legal materials to be analyzed. Normative research is
the type of research that is often used in the field of law which is a different type from
empirical research in other disciplines.
The approach used in this study is the Statute Approach, because this study examined
the legislation, particularly substance relating to the protection of personal data. In addition it
also used the Conceptual Approach. This approach is based on concepts, doctrine, and
practice habits. The last approach used is Comparative Approach, the comparison with the
arrangements regarding the protection of personal data in some other countries. Legal

8
http: //www.idsirtii.or.id/berita/ baca/41/ setahun-40-juta-konsumen-jadi-korban-hacking. html, April
25, 2014.
9
Graham Greenleaf and Sinta Dewi, Op.Cit, p.2.
10
Law Number 11 Year 2008 On Information and Electronic Transactions, General Explanation.
 171

materials to be analyzed consist of three types, namely primary legal materials, secondary
and tertiary. Primary legal materials are materials that have the binding force of law
including: Indonesian Civil Code / Burgelijk Wetboek (Statute of 1847 No.23) (BW), Law
No. 11 Of 2008 on Information and Electronic Transactions (IET Law) and Government
Regulation No. 82 Of 2012 on the Operation of Electronic System and Transaction (GR
82/2012). As a government regulation, this is the second highest form of legislation in
Indonesia, under a Law (Undang-Undang). Secondary legal materials are materials that give
further explanation on primary legal materials such as books, magazines, newspaper articles,
and papers related to the topic of this paper. While tertiary legal materials are supporting
materials that give clues to the primary and secondary legal materials such as legal
dictionaries and dictionaries.
This research consisted of two steps, first step is to collect legal materials and second
step is to analyze the legal materials. The collection of legal materials begins with an
inventory of legal materials, then those materials are classified to focus on the most
significant materials. The classification then followed by systematization of legal materials
for ease in reading and understanding it. Second step of this research, the analysis of legal
materials, is using deductive syllogism because it begins with the provisions of a general
nature which is derived from legislation, including BW, GR 82/2012 and IET Law, which
applied to the principal issues to produce specific answers by using systematic and
comparative interpretation.

III. RESEARCH RESULTS

A. Definition of Privacy / Personal Data
By definition, "personal data" means data such as identities, codes, symbols, letters or
numbers that are a marker of someone's personal privacy. The discussion in this paper is
limited to personal data directly related to electronic data. The term data protection was first
used in Germany and Sweden in the 1970s that govern the protection of personal data by law.
Rationale for governing data protection was because at that time computer was began to be
used as a tool for storing electronic data on population, particularly for census purposes. It
turns out that in practice, there have been many violations committed by both government
and the private sector. Therefore in order to prevent the misuse of personal data then it is
necessary to make a regulation about it.11
Each country uses a different terminology between personal information and personal
data. But substantively both terms have almost the same sense that the two terms are often
used interchangeably. United States, Canada, and the Australian use the 'personal
information' term while the European Union countries and Indonesia itself in the IET Law
and GR 82/2012 use the 'personal data' term.12
In many developed countries, the term privacy as a right that must be protected is also
used, and the term is related to a person's right not to be disturbed in their personal life. The
concept of privacy for the first time was developed by Warren and Brandheis who wrote an
article in the scientific journal of Harvard Law School entitled "The Right to Privacy" or the
right not to be disturbed. In that article, Warren and Brandheis stated that by the development
and advancement of technology, there is a continual awareness that had been born that every
person has a right to enjoy life. The right to enjoy life is defined as a person's right not to be
disturbed in their personal life either by others, or by the government. Therefore, the law

11
Shinta Dewi, CyberLaw: Perlindungan Privasi Atas Informasi Pribadi Dalam E-Commerce Menurut
Hukum Internasional, Bandung: Widya Padjajaran, 2009, p. 37.
12
Ibid, p.71. Article 1.27 of GR 82/2012 give the definition of personal data as follows: personal data
is data about specific individuals that is stored, treated, and guarded so as to protect the truth and the
confidentiality of the data.
 172

should recognize and protect the right of privacy.13 Privacy is a concept that is very difficult
to define because everyone will give different restrictions depending on which side a person
will value it.
According to Indonesian dictionary, privacy means to be free, liberty or freedom.
While Black's Law Dictionary defines privacy as follows:
The right to be alone; the right of a person to be free from unwarranted public. Term
―right of privacy‖ is generic term encompassing various rights recognized to be inherent
in concept of ordered liberty, and such rights prevents governmental interference in
intimate personal relationship or activities, freedom of individual to make fundamental
choices involving himself, his family and his relationship with others.14
The right to privacy is also regulated in the Universal Declaration of Human Rights
(UDHR) Article 12, which states: ―No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence, nor to attacks upon his honor and reputation.
Everyone has the right to the protection of the law against such interference or attacks.‖

B. Regulations Concerning the Protection of Personal Data In Indonesia

So far Indonesia has no policy or regulation regarding the protection of personal data
in a stand alone regulation. Settings on the matter still contained separately in some of the
legislation and only reflect aspects of personal data protection in general. As for the settings,
among others, contained in the IET Law, Law No. 7 Of 1971 on Basic Provisions of Filing,
Law No. 8 Of 1997 regarding the Company Documents, Law No. 10 Of 1998 on the
Amendment of Law No. 7 Of 1992 concerning Banking, Law No. 36 Of 2009 on Health,
Law No. 36 Of 1999 on Telecommunications (Telecommunications Act) and Law No. 24 Of
2013 on the Amendment of Law No. 23 Of 2006 on the Public Administration.
According to Government Regulation No. 52 Of 2000 on Telecommunications which
is the implementing regulations of the Telecommunications Act, the internet incorporated
into the types of multimedia services, which is identified as a telecommunication service
provider that offers services based on information technology. It shows that the internet
settings included in telecommunications law. Telecommunications Act set a few things
pertaining to the confidentiality of information. Among others, Article 22 states that every
person prohibited acts without authority, unauthorized, or manipulation: (a) access to
telecommunication networks; and/or (b) access to telecommunication services; and or (c)
access to specialized telecommunications networks. For offenders such provisions call for
imprisonment for up to six years and / or a maximum fine of IDR 600 million. Furthermore,
Article 40 states that every person is prohibited from eavesdropping on information
transmitted over the telecommunications network of any kind. For those who violate these
provisions, call for imprisonment for a maximum of 15 years. This law also regulates
telecommunications carrier obligation to keep the confidentiality of the information sent and
received by customers or telecommunications services via telecommunication networks and
telecommunication services (Article 42 paragraph (1)). For organizers who violate the
obligations imposed with a maximum of two years in prison and or a maximum fine of IDR
200 million.
Regulation on the protection of personal data of Internet users further contained in the
IET Law. This law does not contain rules of personal data protection in particular.
Nevertheless, this law implicitly raises a new understanding of the protection of an electronic
data or information whether it is public or private. Description of the personal electronic data
further mandated by IET law in GR 82/2012 as the implementing regulation.
13
Ibid, p.10.
14
Thomson Reuters, Bryan A Garner, Black's Law Dictionary, 9th ed. 2009, accessed from Westlaw
International: http://international.westlaw.com.
 173

Protection of personal data in an electronic system in IET Law includes protection

from unauthorized use, the protection by the organizers of the electronic system, and
protection from illegal access and interference. Related to the protection of personal data
from unauthorized use. Article 26 of the IET Law requires that the use of any personal data in
an electronic media must be approved by the owner of the data concerned. Any person who
violates this provision may be sued for damages caused.
Article 26 IET Law states as follows:
1. Unless provided otherwise by Rules, use of any information through electronic media
that involves personal data of a Person must be made with the consent of the Person
concerned.
2. Any Person whose rights are infringed as intended by paragraph (1) may lodge a
claim for damages incurred under this Law.

The elucidation of Article 26 of the IET Law states that personal data is a part of a
person's privacy rights. Meanwhile, the definition of personal data can be found in Article 1
of GR 82/2012: certain personal data which are stored, maintained, while the truth is kept and
the confidentiality is protected.
The elucidation of Article 26 paragraph (1) of the IET Law also tell us more about the
sense of personal rights. The content of the elucidation is as follows: In the utilization of
Information Technology, personal data shall be a part of the privacy rights to be protected.
Privacy rights shall contain the following meaning:
a. A privacy right shall be the right to enjoy personal life and be free from any invasion.
b. A privacy right shall be the right to communicate with other persons without
surveillance.
c. A privacy right shall be the right to inspect access to information about personal life
of and data on individuals.

When we make an interpretation in general, data protection actually has been

regulated in the subsequent chapters of the IET Law, which are in Article 30 to 33 and Article
35, as a part of Chapter VII about the Prohibited Acts. IET Law expressly prohibits unlawful
access to other people's data through an electronic system to obtain information by breaking
through the security systems. In addition, the IET Law expressly states that interception is
included as a prohibited act except that act is done by a party that has the authority to do so.
Any person who feels aggrieved as a result of a prohibited act may file a lawsuit for damages,
and the perpetrators have accountability for the act(s) he did.
The further regulation concerning data protection can be found in GR 82/2012 article
15, which states as follows:
The obligations of an electronic system operator are:
i. To ensure the ‗secrecy, integrity, and availability‘ of personal data;
ii. To ensure that the ‗acquisition, use, and utilization‘ of personal data is based on the
consent of the personal data owner, unless otherwise provided by laws and
regulations; and
iii. To ensure that the use or disclosure of the personal data is based on the consent of the
data subject and is in accordance with the purpose of acquisition, which was disclosed
to the owner of the personal data at the time of data acquisition.

Article 15 (2) of GR 82/2012 states that, in the event of a failure in the protection of
confidential personal data they manage, the electronic system operator shall notify this in
writing to the owner of personal data. Article 15(3) states that this will be further regulated in
the form of Ministry regulations. There are no limitations in the regulation whether the
 174

electronic system operator is limited only to private sectors or also in public sectors, so this
regulation can be applied to every operator of electronic system in Indonesia.
Breaches of Article 15.1 is subject to administrative sanctions, which can include
warnings, an ‗administrative fee‘ (a fine), or temporary or permanent suspension of the
service (Article 84 GR 82/2012). However, such sanctions do not eliminate civil or criminal
liability (Article 84.5 GR 82/2012), such as the right to file a civil lawsuit for compensation
under Article 26 of IET Law. The 2008 law does not provide criminal penalties for breaches
of Article 26, but does for various ‗computer crime‘ activities which may involve personal
data.15

C. Data Protection Regulation In Other Countries

In some developed countries, the issue of protection of personal data has been
considered as part of the human rights that must be protected and therefore have poured in
separate legislation. Europe for example, already have laws on the protection of personal data
for more than a decade.16 In this research will be given three examples of developed countries
that already have comprehensive arrangements regarding the protection of personal data.
England regulates the protection of personal data in Data Protection Act 1998 which
came into force since 2000. This Act is the replacement of the previous rule (the Data
Protection Act 1984). In the UK there is an executive agency, The Data Protection
Commissioner, who oversees all data users who obviously have their personal data. The
protection of individual privacy rights embodied in the provisions of the Data Protection Act
1998 which allows the data subject to obtain information concerning the processing of
personal data and to prevent certain types of data processing that takes place when it is
considered to be harmful to its interests.17 The data also may be used only when necessary
and should not be kept longer than it should. The protection of personal data in this act is
very strict, this Act even prohibits the transfer of personal data to countries outside of Europe
unless a country can guarantee the same level of data protection.
Some important principles of the Data Protection Act are as follows:
1. Personal data shall be obtained only for one or more specified and lawful purposes,
and shall not be further processed in any manner incompatible with that purpose or
those purposes.
2. Personal data processed for any purpose or purposes shall not be kept for longer than
is necessary for that purpose or those purposes.
3. Personal data shall be processed in accordance with the rights of data subjects under
this Act.
4. Appropriate technical and organisational measures shall be taken against unauthorised
or unlawful processing of personal data and against accidental loss or destruction of,
or damage to, personal data.
5. Personal data shall not be transferred to a country or territory outside the European
Economic Area unless that country or territory ensures an adequate level of protection
for the rights and freedoms of data subjects in relation to the processing of personal
data.18

15
Graham Greenleaf and Sinta Dewi, Op.Cit, p.5.
16
Gupinder Assi, South East Asia: Data Protection Update, www.bryancave.com/bulletins, September
2013, p.1.
17
Edmon Makarim, Pengantar Hukum Telematika (Suatu Kompilasi Kajian), Jakarta: RajaGrafindo
Persada, 2005, p.170.
18
Data Protection Principles, http: //ico.org.uk/
for_organisations/data_protection/the_guide/the_principles.
 175

Our neighboring countries have also been regulated the protection of personal data in
its own legislation. Malaysia legislated the Personal Data Protection Act (PDPA) in 2010,
while Singapore legislated the Personal Data Protection Act (PDPA) 2012. 19 Malaysian-
owned new PDPA applied in full by August 2013, while the 2012 Singapore-owned new
PDPA applied in full by July 2014. Both Malaysia and Singapore belongs rule have many
similarities because it seems to have the same source, which refers to the rules on the
protection of personal data that is held in Europe (European Data Protective Directive). An
interesting difference in the PDPA 2012 owned by Singapore is that it facilitates the
establishment of a body called the Do Not Call (DNC) Registry. Communities can register
his phone number on the DNC Registry and officially refused to take calls and messages such
as SMS and MMS from marketing or organization that is not wanted.20
Since there are similarities, this research will only discuss one of the Act, which is the
PDPA 2010 belonged to Malaysia. Since the existence of PDPA 2010, everyone will get new
rights such as the right to be informed about his personal data and the right to access, correct
and control the processing or the use of their personal data by the other party. Cross-border
transfers of personal data are also arranged in the PDPA. PDPA established that there is no
transfer of personal data outside of Malaysia can occur except at the place specified by the
Minister of Information, Culture and Communication. Then the destination country where
personal data is transferred shall have an adequate level of protection that is at least
equivalent to the level of protection provided by the PDPA.
PDPA 2010 contains seven law principles of any data users as follows:
The Malaysian PDPA requires users of data to comply with a number of principles, the
General Principle, the justification for the processing, such as consent; the Notice and Choice
Principle, the right to be informed about the purposes for the processing; the Disclosure
Principle, no disclosure except in connection with the purpose; the Security Principle, the
obligation to take practical steps to protect data; Retention Principle, not to keep the data for
longer than necessary; Data Integrity Principle, ensure that data is accurate and up to date;
and the Access Principle, an individuals right to have access to his or her data.21
The seven principles already regulate comprehensively regarding the protection of
personal data. In the Retention Principle for example, personal data processed for any
purpose shall not be kept longer than necessary to fulfill the purpose of the protection of
personal data. In this case it will be the task of the data user to take all reasonable steps to
ensure that all personal data is destroyed or removed permanently. With the PDPA 2010, the
guarantee of security for personal data of Internet users in Malaysia has increased.

D. Jurisdiction In Cyber Space

Activities in the virtual world is not a simple thing because these activities are not
limIETd by territorial boundaries of a country. Jurisdiction problem becomes a very
important issue in cyber law, since in cyber space the territorial jurisdiction based on state
borders can not be applied simply.
According to Black's Law Dictionary, jurisdiction is:
a. The word is a term of large and comprehensive import, and embraces every kind of
judicial action;
b. it is the authority by which courts and judicial officers take cognizance of and decide
cases;
c. the legal right by which judges exercise their authority;

19
Gupinder Assi, Op.Cit, p.1-3.
20
https://www.pdpc.gov.sg/legislation-and-guide-lines/overview.
21
Gupinder Assi, Op.Cit, h.2.
 176

d. it exists when courts has cognizances of class of cases involved, proper parties are
present, and point to be decided is within powers of court;
e. the right of power of a court to adjudicate concerning the subject matter in a given
case.22

In cyber law, the principle of extra-territorial jurisdiction is used in an attempt to

enable the application of rule of law in the cyber world.23 Regulation concerning jurisdiction
in the IET Law contained in Article 2 which states as follows:
This law applies to any person who has committed the deed as provided in this Act,
either in Indonesia or in jurisdictions outside the jurisdiction of Indonesia, which has
legal effect in the territory of Indonesia and / or outside the jurisdiction of Indonesia
and harm the interests of Indonesia.

In the IET Law's elucidation, it is explained that this legislation has a range of
jurisdictions do not solely to legal acts in force in Indonesia and / or committed by a citizen
of Indonesia, but also applies to legal acts committed outside the jurisdiction of Indonesia
either by Indonesian citizens or foreign citizens or Indonesian legal entities and foreign legal
entities which have legal effect in Indonesia, given the use of Information Technology for
Electronic Information and Electronic Transactions can be cross territorial or universal.
While the definition of "harm the interests of Indonesia" includes but is not limited to harm
the interests of the national economy, strategic data protection, dignity of the nation, national
defense and security, state sovereignty, citizens, as well as the Indonesian legal entities.
The expansion of jurisdiction is also confirmed in Article 37 which states that the
prohibited act also includes a situation when a person deliberately commit a prohibited act
referred in Article 27 - 36 outside Indonesian territory toward Electronic Systems which are
in the jurisdiction of Indonesia. That is, even though the actors are not citizens of Indonesia
or outside the territory of Indonesia at the time of the adverse action, but as long as that act is
causing harm to Indonesia, then the IET Law can be applied in such cases. Of course the
doctrines of International Private Law in terms of liability of the perpetrators, and doctrines
of International Criminal Law in terms of providing criminal sanctions for the cross-border
perpetrators should be applied.

E. Theories of Liabilities In General

Liability which is referred in this study is the notion of accountability that comes from
the Dutch language ―aansprakelijkheid‖. Term of accountability here is within the scope of
private law.24 As revealed by Peter Mahmud Marzuki, that:
Accountability (liability / aansprakelijkheid) is a specific form of responsibility.
Understanding accountability refers to the position of a person or legal entity that is
deemed to be paying some form of compensation or damages after a legal event or
legal action. 25

The existence of legal events or legal actions is the cause of the occurrence of an
engagement (contract) between the two sides. Contract is governed by Article 1233 BW
which states that "All contracts arise either from an agreement, or by law". Contracts that

22
Thomson Reuters, Bryan A Garner, Ibid.
23
Danrivanto Budhijanto, Hukum Tele-komunikasi, Penyiaran & Teknologi Informasi, Regulasi &
Konvergensi, Bandung: Refika Aditama, 2010, p.136.
24
Peter Mahmud Marzuki, Pengantar Ilmu Hukum, Jakarta: Prenada Media, 2009, p. 258.
25
Ibid.
 177

come from law is regulated by Article 1353 BW, where the article states that: "Contracts,
which arise by force of law as a result of people's acts, shall be caused by a valid legal or an
illegal act".
According to Indonesian Law, a civil lawsuit may be based on two grounds, namely
default (breach of contract) and tort / unlawful deeds (onrechtmatige daad). The legal basis is
based on the provisions of Book III of Article 1243 BW for breach of contract and Article
1365 BW for tort. Lawsuits on the basis of breach of contract and tort are always tried in
separate cases. However, if the basis of both lawsuits have a very close relevance, then it is
allowed according to the jurisprudence to merge the lawsuits. Although it is highly dependent
on the judgments of judges to examine and deciding the case.
As for the starting point to differentiate between tort and breach of contract lawsuit is
that a breach of contract lawsuit always starts on the existence of a contractual relationship
(agreement) between the parties, thus giving birth to legal rights and obligations. Rights and
obligations here embodied by the so-called performance. By the time a performance is not
met / not done / not done properly according to the parties' agreement, a default happens. In a
tort lawsuit, the basis of the lawsuit is in the interests of certain parties aggrieved by the
actions of other parties, although among the parties there is no agreement whatosoever
before. The lawsuit will be accepted and sufficiently proven correct if the defendant‘s deeds
cause harm to the other party (there‘s a causal relation between the deeds and the damage). In
other words, filing a tort lawsuit solely oriented on the damage experienced by one party.
Tort set out in article 1365 BW which reads as follows: "Any act that violates the law
and bring harm to others, requiring the person causing the loss was due to his mistake to
replace these losses." This article does not contain a definition, because the definition and
limitation of unlawful acts obtained from a variety of legal literature. A tort is defined as a set
of legal principles that aim to control or regulate dangerous behavior, to give responsibility
for any loss which rises from social interaction, and to provide compensation to the victim
with a proper lawsuit.26 Meanwhile, according to Wirjono Projodikoro, "against the law is
that the act was a shock in the balance sheet of the public." 27 Black's Law Dictionary defines
the tort as "A civil wrong, other than breach of contract, for the which a remedy may be
obtained, usually in the form of damages; a breach of duty that the law imposes on the person
who stand in particular relations to one another".28
The word "act" itself in "unlawful act" means not only positive but also negative,
which include individuals who do not act in a particular case, whereas according to the law it
must do something. This is in accordance with the provisions of Article 1366 BW which
states that: "Every person is responsible not only for the loss caused by his actions, but also
for the loss caused due to the negligence or carelessness of his heart". That is, liability arising
from tort done either for doing (positive = culpa in commitendo) or for not doing (passive =
culpa in ommitendo).
In the beginning unlawful act is narrowly defined as refers from the word
"onrechmatige," which is intended only for actions that directly violate a rule of law
(legislation). But since 1919, after the Supreme Court decision in the Netherlands (Hoge
Raad decision dated January 31, 1919, known as the Lindenbaum-Cohen Arrest contained in
the magazine "Nederlandsche jurisprudentie" 1919-101), the term "onrechmatige-daad"
interpreted broadly , so the covers are also an act, which is contrary to morality or deemed
appropriate in social life in the community.29

26
Munir Fuady, Perbuatan Melawan Hukum, Bandung: PT. Citra Aditya Bakti, 2002, p. 3.
27
R. Wirjono Projodikoro, Perbuatan Melanggar Hukum, Bandung: Mandar Maju, 2000, p. 13.
28
Thomson Reuters, Bryan A Garner, Ibid
29
R. Wirjono Projodikoro, Op.Cit, p. 7.
 178

If someone is doing an act against the law, a liability is held by the perpetrators.
Nieuwenhuis found when the liability is incurred for damages suffered by others, then the
liability can be divided into three types, namely fault liability, fault liability with the reversal
burden of proof, and liability based on risks. 30
Liability based on the element of fault (fault liability, liability based on fault
principle) can be found in Article 1365 BW. These accountability rests on two things: the
unlawful act and the fault. People who inflict harm on others accountable as far as that loss is
due to a violation of norms (against the law) and the culprit may be regrettable for violating
the norm (fault).31 In order for an act to be classified as an act against the law, it must meet
the elements of the following actions:
a. The existence of an act;
b. The act was unlawful;
c. There‘s a fault on the part of the perpetrator;
d. The damages to the victim;
e. The existence of a causal relationship between the act and the loss.

Regarding the causal relationship, Nieuwenhuis found that to determine whether the
misconduct and losses have a causal relationship, we must do the following procedure:
1. First it should be investigated whether the act in relation to the losses can be assessed
as a requirement, that without such act no loss will arise (conditio sine qua non).
2. Then it must be ascertained whether the loss can be considered as a natural result
expected from the unlawful act (adequate relation).
3. If both steps are positive, then certainly there is a causal relationship between the act
and the loss.32

There are several possible claims that could be done based on Article 1365 BW,
namely:
a. Compensation for damages in the form of money;
b. Compensation for damages in the form of being restored to its original
state/condition;
c. The claim that the act is against the law;
d. Prohibition of certain acts done;
e. Negate something held unlawfully;
f. Announcement of the decision of the system which has been repaired.33

The matter of burden of proof is a matter that can not be separated from the liability
based on the element of fault. BW Article 1865 states that: "any person who claims to have a
right, or designate an event to confirm or to deny the rights of others, has to prove the
existence of such rights or events that he stated". From the article can be concluded that the
plaintiff is obliged to prove that the defendant had done a deed against the law, have faults
and mistakes that arise as a result of losses on the plaintiff. The basic principle that applies
here is "who argued, shall also prove their argument ".
The second type is the fault liability with the reversal burden of proof, among others,
adopted in Article 1367 (2)-(5) BW. This principle of liability is also known as the principle

30
J. H. Nieuwenhuis, Pokok-Pokok Hukum Perikatan, translated by Djasadin Saragih, Universitas
Airlangga, Surabaya, 1985, p. 135.
31
Ibid.
32
Ibid, h.131.
33
M.A. Moegni Djojodirdjo, Perbuatan Melawan Hukum, 2nd print, Jakarta: Pradnya Paramita, 1982,
p. 102
 179

of liability based on presumption (rebuttable presumption of liability principle). This

principle of liability is the same as the principle of liability based on fault, but the difference
is on the issue of burden of proof. If under normal circumstances the injured party must
demonstrate that the perpetrator has done against the law, then here the violation of norms
has been considered done, and further requires the perpetrator to negate these assumptions to
show that he did not violate the law. 34 According to principle of liability based on
presumption, the party deemed guilty of the loss incurred on the victim must pay
compensation without proven guilty in advance, unless that party can prove his innocence.
Liability with reversal burden of proof is also applicable in article 28 of Law No. 8 of 1999
on Consumer Protection, which states that "The giving of evidence of faults in the
compensation claims as referred to by Articles 19, 22 and 23 shall be the burden and
responsibility of the entrepreneurs". Reversal burden of proof is usually considered necessary
to apply when the parties are in a position that is out of balance, where one party has a
dominant position so that the weaker party will be very difficult to prove the fault of the
dominant party.
The latter type of liability according to Nieuwenhuis is liability based on risk. This
type of liability, among others, can be found in Article 1369 BW governing the liability of the
building owner which collapsed due to negligence in the maintenance of the building. Here
the injured party does not have to prove that the defendant has committed unlawful act. He is
enough to prove that there has been negligence on the part of the defendant. In this case the
landlord accountable without any violation of norms or faults. 35 Liability based on risk is
also known in other literature as an absolute liability (no-fault liability, absolute or strict
liability principle). According to this principle the defendant accountable for the harm
suffered by the plaintiff regardless of the presence or absence of the element of fault on the
part of the defendant. Which form the basis of liability is the intention of the defendant to
continue to implement its business although he is aware that such activities carry risks. The
implementation of the principle of strict liability should be seen from a broad social value
judgment, that a person conducting business to gain advantage for himself must bear the risks
associated with those activities.

F. Liability of Data Breach Perpetrator Based On Tort

Article 26 of IET Law in the only law that that explicitly mentions privacy. Its terms,
including in the Elucidation, are very broad and unclear. It does not specify whether it applies
to both public or private sectors, so that and other aspects of the scope of its coverage
(including the significance of the three matters mentioned in the Elucidation) are up to the
courts to interpret. But it is a key provision because it gives aggrieved persons an opportunity
for the use of personal data to be tested in court. 36 As it has been told above, the
administrative sanctions in Article 84 GR 82/2012 do not eliminate civil or criminal liability
(Article 84.5 GR 82/2012). Civil liability in form of compensation for damages may be sued
under Article 26 of IET Law
According to Article 38 of IET Law, any aggrieved victim can file a civil lawsuit
against the party which caused damages, as long as it is carried out in accordance with the
law. If a lawsuit is about to be filed against the theft of personal data, carried out by both
individuals and corporations for unlawful purposes, then it will be more appropriate if the
lawsuit is based on tort (article 1365 BW) than on default. Several reasons are as follows:
First, between the victim and the perpetrator there is necessarily no contractual relationship

34
Ibid, p.135.
35
Ibid, p.139.
36
Graham Greenleaf and Sinta Dewi, Op.Cit, p.3.
 180

before the data theft occurred. In many cases, these individuals are third-party managed to
break into a company's data security defense, where the company which is broken is the party
who usually has a contractual relationship with the victim. Secondly, the lawsuit based on tort
will be easier to prove, because it is sufficient to demonstrate the fulfillment of the elements
of misconduct as described above, with the main focus on the evidence of the offender‘s
faults and losses on the part of the victim. The suit on the basis of default will be more
difficult to prove in the case of personal data theft, because they first need to prove the
existence of a contractual relationship between the victim and the perpetrator as well as the
performance of any non-compliance resulting in defaults.
The type of liability that can be applied to the perpetrators of personal data is the
second type of liability mentioned above, namely the ‗rebuttable presumption of liability
principle‘, or fault liability with the reversal burden of proof. This is in accordance with the
principles of the consumer protection laws which also apply the reversal burden of proof,
because there are imbalances between the perpetrator and the victim who is harmed. In this
case the aggrieved party sufficient to prove the existence of the losses incurred on his part
caused by the use of personal data without permission, while the defendant must prove (if he
can) that it was not his fault in the incident. The defendant is obliged to prove that the fault is
not his and that he has done sufficient protection for the data concerned. For those who
legitimately obtain the personal data of the plaintiff but later due to the negligence cause data
leaked and misused by a third party, it is appropriate to apply a third type of liability, ie
liability based on risks / strict liability. Parties may be negligent co-defendant, if not himself
who misuse personal data claimant. Here, the injured party is not required to prove that the
co-defendant has committed unlawful act. He is enough to prove that there has been
negligence on the part of the co-defendant.

G. The importance of Setting on the Protection of Personal Data In Separate Legislation

Even though it has been regulated in general in IET Law and in several other laws,
but Indonesia is considered very necessary to quickly create a special rule regarding the
protection of personal data. One of the main reasons is to increase the value of the Indonesian
economy in the mind of the world's business people. When Indonesia has strict and adequate
rules, then the developed countries like the European Union or Singapore no longer hesitate
to do business with the people of Indonesia through cyberspace, as in business relationships
through cyberspace there will be transfer of data, meanwhile many developed countries
regulated that the data transfer can only be made to countries that have equally strong privacy
protection.
In addition to economic reasons, the privacy policy must be strengthened as part of
the law concerning human rights. Privacy is a part of human rights and special arrangements
regarding the protection of personal data is a way to honor this right. In Indonesia, there are
concerns about the protection of privacy and personal data protection because until now there
is no law that clearly and specifically regulate it. Therefore, the issues of privacy and
personal data protection has become an urgent agenda in today's modern era. Many countries
have implemented special rules for the legal protection of personal data, but it is not the case
in Indonesia. Developments in information technology and the increasing Internet services
users in Indonesia are increasingly showing the need for special arrangements to protect
privacy and personal data in Indonesia.

IV. CONCLUSION
From the above results obtained some conclusions as follows:
 181

a. Personal data is data in the form of identity, codes, symbols, letters or numbers that
are a marker of someone's personal privacy. In many countries the term is also used
for personal information or privacy.
b. Various developed countries already have regulations on the protection of personal
data, but until now, Indonesia does not have these rules. This issue is regulated in
Article 26 of IET Law and some other articles.
c. IET Law embraces extraterritorial jurisdiction, so it can be applied not only to
Indonesian citizens in Indonesia, but also to actors in other countries if his actions
bring legal consequences for Indonesia.
d. For the damages and loss, victims of the personal data misuse could bring a civil
lawsuit on the basis of Unlawful Acts and ask for compensation.
e. The perpetrator of personal data breach is liable for his actions, and the kind of
liability that is most appropriate to be applied is a liability with the reversal of the
burden of proof or rebuttable presumption of liability principle. The defendant is
obliged to prove that the fault is not his and that he has done sufficient protection for
the data concerned.

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Budhijanto, Danrivanto, Hukum Telekomunikasi, Penyiaran & Teknologi Informasi,

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 182

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 183

PLENARY SESSION

E-Commerce Law in the Consumer Protection Perspective

Presenters:

Djumikasih
Ikaningtyas
 184

JURISDICTION AND APPLICABLE LAW

FOR INTERNATIONAL ELECTRONIC COMMERCE

Djumikasih1

ABSTRACT
The court with jurisdiction over the dispute under the law of e-commerce in Indonesia is as
follows lawsuit can be filed through public or commercial court at the residence of the
defendant. If the defendant is in the Foreign Affairs enacted special jurisdiction, namely the
jurisdiction of the court which applies to people who do act outside the territory of the
country but the effect is felt in parts of Indonesia, for example, can be through the District
Court / Commerce Central Jakarta. Can also through arbitrating or other alternative dispute
resolution. That the law should be used in E-Commerce International is Lex Mercatoria
because more flexible accordance with the development and advancement of technology, or
can also be used Principle The most Characteristic connection, because: it is more
reasonable principle is used because it is easy determination and can be determined from
early without having to look for a link point links point to another. In terms of buying and
selling the seller party who is obliged to give a more characteristic achievement than the
purchaser, because seller who must deliver goods which become the object of buying and
selling, so the laws of the State of the seller that should be applied.

Keywords: Jurisdiction, Applicable Law, International E-Commerce

BACKGROUND
Electronic Commerce is generally defined as any form of trade or commerce
transactions of goods and services (trade of goods and services) by using electronic media.2
Electronic media are discussed in this paper is focused on internet media. Meanwhile,
Sjahdeni suggests that more detailed as follows: Electronic commerce or e-commerce is
abbreviated activity business activities involving consumers , manufacturers, service
providers, and middlemen by using a network of computer networks, internet . E-Commerce
has been covering the entire spectrum of commercial activity.3
Ding, suggests a more complete definition, namely: Electronic Commerce: E-
Commerce asi it is also known, is the commercial transaction between a vendor and
purchaser or parties-in-similar contractual relationship for the supply of goods, services or
acquisition of "rights". This Commercial transaction is executed or entered into in the
electronic medium (digital or medium) where the physical presence of the parties is not
required, and the medium exist in a public networks or systems as opposed to private network
(closed system). The public network or system must be considered an open system (eg, the
Internet or the World Wide Web). The transactions are concluded regardless of national
boundaries or local requirements.4
Meanwhile Cheeseman, write down the definition of a very brief but concise about e-

1
Djumikasih, Faculty of Law Universitas Brawijaya, Email:kimujd@gmail.com
2
Riyeke Ustadiyanto, 2001, Framework E-Commerce, Andi, Yogyakarta, hal. 139
3
Sutan Remy Sjahdeni, 2001, E-Commerce, Tinjauan dari Prespektif Hukum, Jurnal Hukum Bisnis,
Jakarta. page 333
4
Ibid page 334
 185

commerce, namely the sale of goods and services by computer over the internet. 5 Rather
different definition shown by Rosen, because it includes two types of e-commerce, which
states that electronic commerce or e-commerce covers the range of online business activities
of product and services, both business to business and business to consumers, through the
internet.6 While Baum, also incorporate elements of technology in the definition which states
that e-commerce is a dynamic set of technologies, applications, and business process that
links enterprises, consumers and communities through electronic transactions and the
electronic exchange of good, services and information.7
While the Electronic Transactions pursuant to Article 1 (2) of Law No. 11 of 2008 on
Information and Electronic Transaction is a legal act performed by using a computer,
computer network or other electronic networks. With the rapid advancement of technology
during this transaction by electronic means is increasingly widespread, not only carried out
by people from the same country, but the transactions between people who live in different
countries are increasingly easy. If the parties have made a choice of forum clauses and choice
of law in the deal certainly will not cause any problems This will cause problems if the
transaction turns out they did turned out to cause disputes in the future.

PROBLEM
If there is a dispute in e-commerce that the party comes from a different country, it
will cause the following problems:
1. Which courts jurisdiction over disputes international e-commerce?
2. Which law should be applied to resolve disputes international e-commerce?

DISCUSSION
A. Competent Court Decides Disputes of International E-Commerce
In general, if the agreement is carried out by the different parties of different
nationality or domicile, the parties will make a choice of forum clause on or choice of forum
or court where disputes will be tried later. Consideration of the forum selection was
dependent agreement of the parties, may be due consideration of the domicile of the
company, where he made an agreement or where the implementation of agreements or other
considerations such economic onsiderations as well as consideration of the credibility of the
forum will be selected. Therefore, the parties may choose the forum through litigation and
non-litigation forum. If the parties had picked the forum, the forum of course later the
authority to hear, but if the parties do not choose the forum would have caused problems. To
answer the problem that, in International Law, in particular the International Contract law
discussed there are some principles that can be used as a reference.

Principles were as follows:

1. Lex Loci Contractus
2. The offense in two places to choose from one of the forums
3. With respect to the branch company, choice of the forum on the location of the branch
company
4. against two defendants, chosen one of them
5. Against the consumer can select the consumer forum

5
Henry R. Cheeseman, 2001, Bussines law, Ethical, International, E-Commerce, and Environment,
Prentice Hall, Inc. Upper Saddle River, New Jersey,page 350.
6
Anita Rosen, 1999, The E-Commerce Question and Answer Book, Amacom, New York, page 5.
7
Onno W purbo dan Aang Arif Wahyudi, 2001, Mengenal E- Commerce, PT. Elex Media
Komputindo, Jakarta, page 2
 186

Actually this forum selection agreement on a legal basis, namely the 2005 Hague
Convention on Treaties Forum options (the Hague Convention on Choice of Court
Agreements) .Two of the main reasons why this Convention was born
1. Today many courts in various countries in the world have different views
regarding the status of foreign court decisions. Not a little court even refused to carry
out the foreign judgment by a variety of reasons.
2. That many courts in various countries who do not appreciate the existence of a forum
selection clause is selected and agreed by the parties.

Basic Principles of the Hague Convention 2005

1. The judicial authorities or institutions of dispute resolution chosen by the parties to a
forum selection agreement that has the jurisdiction to resolve the dispute (Article 5);
2. if there is an agreement on the choice of a forum, then the other forums that are not
chosen by the parties did not have jurisdiction and therefore should refuse to settle
disputes submitted to it (Article 6)
3. the decision issued by a judicial body chosen by the parties must be recognized and
implemented in the courts in member states of the Convention (Article 8).

Hague Convention of 2005 and Indonesia

As well as countries in general, Indonesia still adhered to the provisions of the old law,
that court decisions are made overseas will not (ever) implemented in the country. This
provision is essential. The rule of law is very high price to be paid. Not to mention the
problem of formality decision, the legal system is applied, and the decision process itself is
made. For example, the decision simple, ruling in Indonesia should start with the head of the
decision reads: "For the sake of Justice Based on God." The lack of sound judgment head like
this will make the decision becomes invalid or void (null and void).

Barriers to Implementation of Decisions of Foreign Courts:

1. get resistance from developing countries. Sitting is because of the fact that these
countries are likely to be many more faced with the decision of the problem
application for recognition of foreign court.
2. Indonesia has not or does not become a member of the Hague Conference this. Thus,
the future prospects of the binding substance of the rules of the Hague Convention of
2005 is still far from expectations.

In connection with the court with jurisdiction over e-commerce transactions in

Indonesia, based on Article 39 of the Law on Information and Electronic Transactions can be
submitted in accordance with the law of civil procedure or through arbitrating existing and
alternative dispute resolution, as set out in Article 39, the Dispute Resolution Section
(1) Civil action carried out in accordance with laws and regulations.
(2) In addition, it can also through arbitration and alternative dispute resolution.

Therefore it can be concluded that the court with jurisdiction over the dispute under the
law of e-commerce in Indonesia is as follows lawsuit can be filed through public or
commercial court in the residence of the defendant. If the defendant is in the Foreign Affairs
enacted special jurisdiction, namely the jurisdiction of the court which applies to people who
do act outside the territory of the country but the effect is felt in parts of Indonesia, for
example, can be through the District Court / Commerce Central Jakarta. Alternatively, you
can also through arbitration or other alternative dispute resolution.
 187

B. Applicable Law For International E-Commerce

In the private international law there are several principles, relating to which the law
applicable in international treaties, namely:
1. Choice Of Law (choice of law) of the parties specified in the agreement, can be
related to personal or territorial, may also due to economic considerations
2. If there is no choice of law, to determine which law can be used one of the principles
or theories below.

Principles of International Law when no Choice of Law, applicable law may be based
on:
1. The contracting / Lex Loci Contractus
2. The contract negotiations
3. The execution of the contract / Lex Loci Solusionis
4. Location of the object of the contract / Lex Rei Sitae
5. Domicile subject of the contract / lex Domicili
6. Citizenship subject of the contract / Lex Patriae
7. The position of a business entity.
8. Lex Mercatoria / customary law applicable in international trade
9. The Proper Law Of Contract: The most powerful legal system and real in the
transaction occurred, which to decide to be in search of first many point link, and then
can be determined where the applicable law, the law of the State most points link the
case is going on.
10. The Most Characteristic Connection: legal options are on the liability of either party
to perform the most characteristic achievements.

In the case of electronic transactions not all the above principles can be applied to
determine which law applies if the party comes from a different country, because electronic
transactions have different characteristics with transactions in general, for example the
principle of lex loci contratus which states that the applicable law is the law on international
treaties which the agreement was made. While in e-commerce, it is very difficult to determine
the actual agreement in which it happened, because it did not meet directly.
Meanwhile in Article 2 of the Law on Information and Electronic Transactions
Indonesia, stated that:
"This Act applies to any person who has committed the law as set forth in this Act, both of
which are in the jurisdiction of Indonesia and outside the jurisdiction of Indonesia, which has
the effect of law in the jurisdiction in Indonesia and / or outside the jurisdiction Indonesia
and harm the interests of Indonesia"
Therefore it can be concluded that the law should be used in E-Commerce
International is Lex Mercatoria because more flexible accordance with the development and
advancement of technology, or can also be used Principle The most Characteristic
connection, because: it is more reasonable principle is used because it is easy determination
and can be determined from the beginning without having to look for a link point links point
to another. In terms of buying and selling the seller party who is obliged to give a more
characteristic achievement than the purchaser, because the seller who must deliver goods
which become the object of buying and selling, so the laws of the State of seller that should
be applied.
 188

CONCLUSION
From the above we can conclude the following two things:
1. The court with jurisdiction over the dispute under the law of e-commerce in Indonesia
is as follows lawsuit can be filed through public or commercial court at the residence
of the defendant. If the defendant is in the Foreign Affairs enacted special jurisdiction,
namely the jurisdiction of the court which applies to people who do act outside the
territory of the country but the effect is felt in parts of Indonesia, for example, can be
through the District Court / Commerce Central Jakarta. Can also through arbitrating
or other alternative dispute resolution.
2. that the law should be used in E-Commerce International is Lex Mercatoria because
more flexible accordance with the development and advancement of technology, or
can also be used Principle The most Characteristic connection, because: it is more
reasonable principle is used because it is easy determination and can be determined
from early without having to look for a link point links point to another. In terms of
buying and selling the seller party who is obliged to give a more characteristic
achievement than the purchaser, because seller who must deliver goods which become
the object of buying and selling, so the laws of the State of the seller that should be
applied.

REFERENCES

Anita Rosen, 1999, The E-Commerce Question and Answer Book, Amacom, New York

Henry R. Cheeseman, 2001, Bussines law, Ethical, International, E-Commerce, and

Environment, Prentice Hall, Inc. Upper Saddle River, New Jersey

Riyeke Ustadiyanto, 2001, Framework E-Commerce, Andi, Yogyakarta

Sutan Remy Sjahdeni, 2001, E-Commerce, Tinjauan dari Prespektif Hukum, Jurnal
Hukum Bisnis, Jakarta.

Onno W purbo dan Aang Arif Wahyudi, 2001, Mengenal E- Commerce, PT. Elex Media
Komputindo, Jakarta,
 189

INDONESIAN LAW ON CONSUMER PROTECTION IN E-COMMERCE

Ikaningtyas, SH.LLM1

ABSTRACT
Through internet technology people around the world able to do transaction without
physically meet. In the field of trade, the Internet began to be used as a medium for many
business activities. Trading activities through the internet medium is popularly called the
electronic commerce (e-commerce). E-commerce transactions is different from conventional
commercial transactions that are directly (face to face), because e-commerce transactions
take place in a virtual world (cyberspace), does not unite directly with the seller and buyer of
goods on offer (faceless nature). However, because it uses a public network, the security
issues become very vulnerable matter and need to be solved such as in consumer protection
matter. The advantages derived by the consumer through e-commerce transactions, as
follows: faster to obtain information about products offered, can save time in selecting the
desired product, and appropriate with the buyer budget, because usually the product being
offered is also included in complete brand and price, but also its cause many negative
impacts to the consumers, because consumers did not directly had knowledge of the quality of
products which offered. In addition, there are constraints in terms of payment systems and
the constraints on the inaccuracy of product delivery, then the standard contract, and so on.

A. BACKGROUND
Technologies created and developed along with the human need to make their life
easier from a previous life.2 technology of information activities can be used as a means to
communicate with one another, used for the information spread, data search, business
transactions and so on. One of the products of information technology innovation is the
internet3 (interconection networking). Internet is a connection between the computer network.
Currently, internet applications have to enter various segments of human activity, such as : in
the political sector, social, cultural, and economic and business.
First time when the Internet was introduced, Internet inventor never expected, that the
impact in the future would be so great. Previously people only think that it is a globalization
of the physical world when the geographical boundaries dividing the earth into some
countries will fade and disappear. Gradually began to do business, by way of opening world
trade widest without protection from the government or other parties that govern trading
mechanism. The development of the Internet led to the formation of a new arena is
commonly known as cyberspace. Here every individual has the right and ability to connected
to other individuals without any restrictions in his way. This is globalization that has
basically done in cyberspace, which connects all digital communities or those who frequently
use the Internet in daily life activities.
In the field of trade, the Internet began to be used as a medium for many business
activities mainly because of its contribution to efficiency. Trading activities through the
internet medium is popularly called the electronic commerce (e-commerce). E-commerce is

1
IKaningtyas, SH.LLM, Faculty of Law, Brawijaya University, Email: Ummu_bitah@yahoo.co.id
2
Hikmahanto Juwana, Hukum Ekonomi dan Hukum Internasional,Lentera Hati, Depok-Indonesia,
2002, hlm 23.
3
Internet (International Network) is a very large computer network, consisting of small networks that
connected each other, reach around the world. in Indonesia, Internet started to be developed in 1983, at the
University of Indonesia, namely the FP UINet by Joseph Luhukay, who had just finished his doctoral program
Philosophy of Computer Science in the United States. (Budi Sutedjo DO, Perspekif e-Business: Overview of
Technical, Management and Strategy, Yogyakarta, Andi, 2001, p.10)
 190

divided into two segments of business to business e-commerce (trade between business
actors) and business to consumer ecommerce (trade among business customers). E-commerce
(electronic commerce) is basically the impact of the development of information technology
and telecommunications. This significantly changed the way humans interact with their
environment, which in this case related to a trade mechanism. Increasing the business world
to the Internet in conducting daily activities, indirectly creating a new world domain is often
termed a cyberspace. Unlike the real world, cyber space has unique characteristics. Unique
characteristics shows that a human can easily interact with anyone in this world as far they
connected to the Internet. There is no border among territory allows everyone in the world to
communicate with others effectively, efficiently and directly change the way companies do
business with other companies or consumers.
Peter Fingar said that:
In principle, e-commerce provides the infrastructure for the company, to expand the internal
business processes to the external environment without having to face the obstacles of time
and space. Opportunities for networking with other institutions should be utilized, because
today's real competition is how a company can take advantage of e-commerce to improve
performance in business.4

However, because it uses a public network, the security issues become very
vulnerable matter and need to be solved. This created a polemic in society, because on the
one hand e-commerce transactions were brought a lot of advantages, but on the other side
also has weaknesses in terms of security, because the use of public networks and indirect
transactions (faceless nature). The advantages derived by the consumer through e-commerce
transactions, as follows: faster to obtain information about products offered, can save time in
selecting the desired product, and appropriate with the buyer budget, because usually the
product being offered is also included in complete brand and price.
In addition, according to Atip Latifulhayat, some distinctive characteristics of e-
commerce puts the customer in a disadvantaged position, such as: 5
1. the Internet merchants do not have a physical address in a particular country, so this
will be difficult for consumers to not return the product in accordance with the order;
2. consumer faced difficulty to obtain insurance to get "Local follow-up service or
repair"
3. product that had been purchased might not fit with local requirements.

In Indonesia, e-commerce phenomenon has been known since 1996 with the
appearanced of the site as http:// http://www.sanur.com/ bookstore first on-line. Although not
very popular, in 1996 it began to appear different sites that make e-commerce. During the
year 1997 - 1998 the existence of e-commerce in Indonesia a little neglected because of the
economic crisis. But, in the year 1999 the popularity of e-commerce was back , although still
limited to the minority people of Indonesia who know the technology. 6 One Internet expert
Indonesia, Budi Raharjo, judging that Indonesia has a potential and promising prospects for
the development of ecommerce.7

4
Ricardus Eko Indrajit, E-commerce Kiat dan Strategi di Dunia Maya, PT Elek Media Komputindo,
Jakarta, 2001. Hal.2
5
Atip Latifulhayat, Personal Data Protection in E-Commerce, Business Law Journal, Vol 18, Maret,
2002,p.23
6
Esther Dwi Magfirah,Perlindungan Konsumen dalam E-Commerce,
pkditjenpdn.depdag.go.id/.../index.php?Perlindungan%20Konsumen%20Dalam%20E-commerce
7
Budi Raharjo,E-commerce di Indonesia,Info Komputer, Edisi Oktober 1999, hlm 7
 191

E-commerce transactions is different from conventional commercial transactions that

are directly (face to face), because e-commerce transactions take place in a virtual world
(cyberspace), does not unite directly with the seller and buyer of goods on offer (faceless
nature). This will cause many negative impacts to the consumers, because consumers did not
directly had knowledge of the quality of products which offered. In addition, there are
constraints in terms of payment systems and the constraints on the inaccuracy of product
delivery, then the standard contract, and so on.
In Indonesia, the protection of the rights of consumers and businessmen have been
regulated in the Law No. 8 / 1999 about Consumer Protection 8. However, this law which
came into effect April 1999 it only regulates the rights and obligations of consumers who are
still limited to trading done conventionally. As for the rights and obligations of consumers in
online transactions not explicitly regulated in this Act. Also in 2008, Indonesia government
issued law concerning Information and Electronics Transaction, Number 11 year 2008.9
Considering, that there is arranged specifically yet the legal rules that protect
consumers in a variety of transactions on the Internet by the Indonesian government, the legal
review is necessary to analyze rights of consumers and responsibilities business actors in the
transaction on the internet, as well as settlement mechanisms that can be done by consumers.
According to the facts above, the writer of this article, will raise issues concerning:
1. How is the position of consumer in e-commerce ?
2. Is Indonesia‘s laws already protect consumer in e-commerce ?

B. OVERVIEW OF E-COMMERCE
The term ‖electronic commerce‖ or ―e-commerce‖ is often seen as equivalent to
internet commerce, but it has far longer history. For over 40 years, technologies based on
private or closed electronics networks have been used to facilitate electronic communications
between commercial entities.10 So far, in the literature there is no uniform terminology and
standards regarding the transaction, or trade through electronic or e-commerce. it was caused
by problems related to e-commerce is very broad, and can be viewed from different angles.
Julian Ding11 define e-commerce as follow :
Electronic Commerce, or E-commerce as it is also known, is a commercial
transaction between a vendor and purchaser or parties in similar contractual relationship for
the supply of goods, services or the acquisition of „right‟. This commercial transaction is
executed or entered into in an electronic medium (or digital medium) where the physical
presence of the parties is not required, and the medium exist in a public network or system as
opposed to a private network (closed system). The public network or system must be
considered an open system (e.g. The internet or the www). The transaction are concluded
regardless of national boundaries or local requirements.
Meanwhile, Kamlesh K Bajaj and Debjani Nag12 stated that : E- Commerce refers to
the paperless exchange of business information using elecronic data interchange, electronic
mail electronic bulletin boards, electronic funds transfer and other network-based
technologies. It not only automates processes and paper transaction, but also helps

8
In Indonesia known as Undang-Undang Perlindungan Konsumen (UUPK) No. 8/1999), stated in
gazette of Republic of Indonesia Number 3821.
9
In Indonesia known as Undang-UNdang Informasi dan Transaksi Elektronik (ITE) no.11/2008,
promulgated in Jakarta On april 21, 2008,State gazette of the republic of Indonesia number 58 of 2008,
Supplement to state gazette of the Republic of Indonesia number 4843
10
Reed and Angel, Computer Law : The Law and Regulation of Information Technology ,Oxford
University Press, New York, Sixth Edition, 2007, p.197
11
Julian Ding, E-Commerce : Law and Practice,Sweet and Maxwell, Malaysia, 1999, p.27
12
Kamlesh K Bajaj and Debjani Nag, Executive directors-Commerce : Te Cutting Edge of Business,
McGraw-Hill International Editions, New Delhi, India, 2001, p.12
 192

organizations move to fully electronic environment and change the way they operate. Global
definition was given by Chissick and Kelman, they said e-commerce is a broad term
describing business activities with associated technical data that are conducted
ellectronically.13
From these definitions, there are 6 (six) component in e-commerce, namely:
1. the existence of contract
2. the contract operate by electronics means
3. physical attendance of the parties is not necessary
4. the contract occurred in public-net
5. the system is open, with internet or world wide web (WWW)
6. cross national jurisdiction

Furthermore, on doing of e-commerce we will find several types of e-commerce.

There are a number of different types of e-commerce: 14
1. Business to Business (B2B)
Model of e-commerce transaction is a business communication system between
businesses, or in other words electronic transactions between business actors (in this
case business) are carried out routinely and in that capacity or a large volume of
products. Business to Business e-commerce has been in use for quite a few years and
is more commonly known as EDI (electronic data interchange). In the past EDI was
conducted on a direct link of some form between the two businesses where as today
the most popular connection is the internet. The two businesses pass information
electronically to each other. B2B e-commerce currently makes up about 94% of all e-
commerce transactions.
2. B2C - Business to Consumer
Business to Consumer e-commerce is where the consumer accesses the system of the
supplier. It is still a two way function but is usually done solely through the Internet.
Example: A home user wishes to purchase some good quality wine. The user accesses
the internet site http://www.craigs.com.au and follows the links to read a report on the
recommended wines. After reading the tasting notes the user follows the links to place
an order along with delivery and payment details directly into the merchant's
inventory system. The wine is then dispatched from the supplier's warehouse and in
theory is delivered to the consumer without delay.
3. C2B - Consumer to Business
Consumer to Business is a growing arena where the consumer requests a specific
service from the business.
Example: Harry is planning a holiday in Darwin. He requires a flight in the first week
of December and is only willing to pay $250. Harry places a submission with in a web
based C2B facility. Budget Price Airways accesses the facility and sees Harry's
submission. Due to it being a slow period, the airline offers Harry a return fare for
$250.
4. C2C - Consumer to Consumer
These sites are usually some form of an auction site. The consumer lists items for sale
with a commercial auction site. Other consumers access the site and place bids on the
items. The site then provides a connection between the seller and buyer to complete
the transaction. The site provider usually charges a transaction cost. In reality this site
should be call C2B2C. Consumer to consumer is the business transactions conducted
13
Michael Chissis and Kelman cited from M.Arsyad Sanusi : E-Commerce Law and Solution,
PT.Mizan Grafika Sarana, 2001, p.14
14
www.creativexcbstore.com/portfolio/b2bbusinesstobusiness
 193

electronically between a consumer, to meet a particular need, and at a specific time,

consumer-to-consumer segment is more specialized in nature, because the
transactions are made by consumers to consumers who need a transaction
5. Costumer to Government
This kind of e-commerce is the buy-sale transaction between individuals and
government, example : tax payment.15

Thus, the parties can engage in a purchase and sale transactions electronically, not
only between the individual and the individual but also with a company, a company with a
company or even between individuals and government.
Basically, there is not much different between e-commerce and conventional
commerce. Because e-commerce actually have the same legal bases with conventional
commerce (seller-buyer contract), but e-commece here used electronic means as medium.
Also, e-commerce contract contains of offer and acceptance, and the form of e-commerce
contract is standard contract.
E-commerce change the way consumers, in a transaction. With the Internet, e-
commerce business cross the boundaries and give consumers greater access to goods and
services with cheaper prices. But besides easiness, it appeared that the e-commerce also
brings problems for consumers. Outlined, can be found several problems that arise with
regard to consumer rights in e-commerce transactions, such as :16
1. can not immediately identify, see or touch the items to be ordered;
2. Vagueness of information about the products offered and / or there is no certainty
whether the consumer has obtained appropriate information known, or a duly required
to take a decision in the transaction ;
3. lack of clarity about the status of legal subjects of business actors. there is no
guarantee transaction security, and privacy as well as explanations of the risks
associated with the system used, especially in the case of electronic payments
4. imposition of risk is not balanced, because generally when the payment was made by
the consumer, goods not received, as a guarantee that there is a delivery guarantee,
not a guarantee receipt of goods
5. then the existing contract is the standard contract, in which all clauses have been
provided by the merchants, and consumers do not have the opportunity to put his
desire in the contract.
6. transactions that cross state borders, causing problems in the event of a dispute
jurisdiction

Based on that e-commerce weaknesses above, there are several legal problems related
to e-commerce, such as :
1. Standard Contract
Traditionally, contract occurred because the consent among the parties with balanced
position .In e-commerce, majority contract arranged by producer (the merchant). Contract
already provide, and consumer accept that. These kind of contracts known as standard
contract. Hood Philips describe standard contract is :17

15
Edmon Makarim, Kompilasi Hukum Telematika,PT Gravindo Persada, Jakarta, 2000, hlm. 77
16
Abdul Halim Barkatullah, Perlindungan Hukum bagi Konsumen Dalam Transaksi E-commerce
Lintas Negara Di Indonesia,FH UII Press, Yogyakarta, 2009, hlm.44
17
Hood Philips dalam Sukarmi, Cyber Law : Kontrak Elektronik dalam baying-bayang, Pustaka Sutra,
Bandung, 2008, hlm.46
 194

These contracts (standard) contract are of the take it or leave kind, for here the
consumer cannot bargain over the terms; his only choice is to accept the terms in to
or to reject the service altogether.

Standard contract has strength and weakness. The strength are contract become more
efficient, and bussiness conduct become more simple. These kind of contract brought
advantages to the mass production contract. While, the weakness is, because the term
already provide by the one of the party, it probably make the contract is unbalanced.
consumers in many ways has (position transactional) low bargaining position than the
producers (manufacturers).
The factors that cause the standard contract becomes unbalanced, as follows:18
a) Lack of or even there is no opportunity for consumers to bargaining, so that
consumers do not have many opportunities to know the content of these contracts
b) Since the formulation of a unilateral contract, the document provider has a lot of time
to think about clauses in the contract, while the consumers did not have many
opportunities to develop his will in the contract clause.
c) Consumer protection in these transactional relation is very unbalanced, so that the
consumers only able to be take ―it‖ or ―leave‖ it. Almost all e-commerce contracts can
not be negotiated, the contract usually contains terms that are unfavorable to the
consumer. Example: contents of a clause which states that the goods are purchased
non-refundable.

England follows principles that standard contract infringed toward free consent
principle, the statement :19
Exemption clauses differ greatly in many respects. Probably the objectionable are found in
the complex condition which are now so common. In the ordinary way the customer has no
time to read them ad if he did read the, he would probably not understand them. If he did
understand and objected any of them be would generally be told that he could take it or leave
it. If he then went to another supplier, the result would be the same. Freedom to contract must
surely imply sme voice or room for bargaining. (Suisse Atlantique v. Roteerdamsche Kolen
Centrale (1976) 2 ALLER 69.76)
From the statement above we know that, standard contract in e-commerce is
contradictive with principle in contract, namely: Free consent. Because standard contract
created unbalanced position between consumer and producer (merchant), this condition tends
to bring disadvantages to consumer and placed consumer in low bargaining position. More
over, if the contract done through cross border jurisdiction, it can make the consumer position
become lower.

2. Digital Signature
The essential attributes of a signature are that indicates recognition and approval of
content of the document. In a contract, the signatures needed to declare an agreement from
the parties. Signatures can also be evidence that the parties have to know and declare the
authenticity of a contract. The signing of a document generally have the following objectives
:20

18
Abdul Halim Barkatullah, Perlindungan Hukum bagi Konsumen Dalam Transaksi E-commerce
Lintas Negara Di Indonesia, hlm.55
19
Sukarmi,Cyber Law: Kontrak Elektronik dalam baying-bayang,Pusataka Sutra, Bandung, 2008, hlm.
53
20
Abdul Halim Barkatullah, Perlindungan Hukum bagi Konsumen Dalam Transaksi E-commerce
Lintas Negara Di Indonesia, hlm.51
 195

a) Evidence,---document authentication
b) Ceremony --- the signing of a document will result in the signing of knowing that he
had committed an act of law, so that will eliminate the possibility of inconsiderate
enggagement
c) Approval--- signature represent of approval, or authorization to be made, so that the
parties knew that the signature has legal consequences

Digital Signature is a digital signature created electronically, that functions the same
as usual signature on the document used. problems arising is the validity of digital signatures,
ie whether this signature can be recognized as legally valid evidence. it is closely related to
the confidentiality21, integrity22 and authenticity23 of the consumer and business actors.
According to experts of digital signatures should be accepted as a signature validity
with the following reasons:
a. electronic signature affixed by someone / some people are willing and legally bound.
b. An electronic signature can be created or appended by using mechanical equipment as
well as signature traditional.
c. the same security properties as traditional signatures.
d. element of intent can be satisfied by electronic signatures.
e. Digital signature can be placed on any part of a document, like traditional signature

3. Consumer Protection
In e-commerce transactions, business transactions created a more practical, without
paper (paperless), and in e-commerce transactions the parties may conduct transactions
without having to meet physically (face to face). With those characteristics, e-commerce
make business transactions to be effective and efficient. But e-commerce also bring negative
effects, especially for consumers. Security problems in transaction, the standard contract used
in the system of e-commerce contracts and so on. Emergence of deviations that tend to harm
consumers, and raises many legal issues in implementing e-commerce transactions. Legal
issues concerning consumer protection, the more urgent to be solved soon. Other forms of
protection should be given in terms of consumers conduct e-commerce transactions with a
merchant. in the sale and purchase through the Internet, often there was cheating.
Deceitfulness can occur concerning the existence of business, goods or services purchased,
the price of goods, and payments by consumers. For more details, consumer protection issues
in e-commerce in particular will be discussed in the next chapter.

C. CONSUMER PROTECTION IN E-COMMERCE

The relationship between producers and consumers is continuously and sustainable
relationship. Relationship occurred because both parties wanted it to each other, and have a
high dependency rate high enough to each other. In describing the concept of producer and
consumer relationships, Purba expressed as follows: 24

21
confidentiality means a message can not be read or known by others who are not related with.
22
integrity means that recipients must make sure that the message he received was never altered since
the message was sent to accepted, an intruder can not change or swap the contents of the original message with a
false message.
23
authenticity means that recipients of the message must know or have anyone sending a message of
certainty, and that the correct message is sent by the sender. This term also relates to a process of verification of
the identity of a person
24
A.Zen Purba, Perlindungan Konsumen : Sendi-sendi pokok pengaturan,Hukum dan Pembangunan,
Tahun XXII, Agustus 1992
 196

―the main key legal protection for consumers is that consumers and producers need each
other. production means nothing if no one took it, and consume products safely and
satisfactorily, in turn, is a free promotion for producers‖.
W.J Brown expressed, one of the reason why, we must provide protection for
customer, is :25
―…that due the technical development of consumer goods, the ordinary consumer
cannot be expected to know if the goods are fit for the purpose for which they were bought, or
if the are of good or bad quality‖
In general, relationship between consumer and producer (manufacturer as seller) in e-
commerce, has same position like in the conventional trade. But, in e-commerce, consumer
has lower position than producer. It happens because :
a) there are more products, brands competing in the e-commerce
b) misleading advertising, did disinformation to consumers, than provide information on
an objective bases
c) consumer purchasing power increased
d) Basically the consumer is a low position because they do not obtain adequate
information
e) Lack of legal instruments that protect consumers from fraud producers

The relationship between business and consumers a sustainable, occurred since the
production process, distribution of marketing to offer. It is used by business actors in a
system of distribution and marketing of products in order to achieve a level of productivity
and effectiveness in achieving specific business objectives. on stage distribution and the
distribution relationship is a relationship that produces a mass character. business actors
have a tendency to "harass" the rights of consumers, and consumers take advantage of
weaknesses without having to obtain legal sanction. This situation worsened, in the e-
commerce systems. To know the development of relations between actors have with
consumers, we must first understand the doctrine or theory underlying the relationship.

1. Caveat Emptor
Perhaps the single most important underlying legal principle in the consumer law field
was expressed in Old Roman legal maxim-still sometimes heard today, caveat emptor (let the
buyer beware). The rule caveat emptor eventually was followed by the courts not only of the
Romans Empire but of almost all the ancient nations. This principle was accepted because
buyer then were almost uniformly competent to make most of their own purchasing
decisions.there was little likehood hat reasonably prudent buyer coud go wrong. 26 Previously
this theory initially very balanced, so there was no need of any protection for consumers. but
in its development, the consumer can not access the same information for goods or services
consumed. It can be due to the inability of the limited knowledge of consumers or producers
closure. so that the consumer was dictated by the manufacturer, so that any losses
experienced by consumers, producers who argued that they were mistakes consumers
themselves.
The doctrine that says let the buyer beware motion was opposed by consumer
protection movements. According to this principle in a trading relationship, which must be
careful is the buyer. the buyer's fault if the consumer is to buy and consuming goods that are
not feasible. however, with the development of economic systems, mechanisms and speed of

25
Abdul Halim Barkatullah, Perlindungan Hukum bagi Konsumen Dalam Transaksi E-commerce
Lintas Negara Di Indonesia, hlm.67
26
Charles F.Hemphill,The Consumer Protecion Hand Book A Legal Guide,A Spectrum Book, New
Jersey, 1981, p. 3
 197

trade industries, where much business is now producing goods in very many, and mass, then
the theory of Caveat Emptor caveat venditor herded into, businessmen who deserves to be
careful (or let the seller beware).

2. Duty Of Care
This theory states, producers have an obligation to be careful in marketing their
products, both goods and services. so if this theory has been applied, and then there was the
loss claimed by consumers, then consumers must prove that the producer had violated the
principle of prudence.
Terms of the burden of proof, was the plaintiff (consumer) to spread the evidence. the
business (the defendant) is being waited. based on the evidence of the plaintiff before the
defendant defend himself. but in reality quite difficult for consumers to prove the claim.
contrary, with various business actors (with a lot of advantages position) more easily defend
themselves, and avoid from consumer lawsuits. this is where the weakness of this theory.

3. Privity of Contract
This theory states, producers have an obligation to protect consumers, but this can
only be implemented if any of them had established a contractual relationship. producers can
not be blamed for things beyond the agreement. Means that consumers can sue based on
conractual liability. If there were already legal relationship, the issue is not simply done,
though often juridically expressed, between business and consumers has equal and same
position , but the fact is, consumers are those who usually always dictated by the willingness
of business actors. Phenomenon of standard contracts that many circulating in the
community, is a clearly proof, how powerless consumers in the face of the dominance of
business actors. In a contract between business and consumers that are massive, like a
standard contract, only the principle mistakes that are agreed in . result when consumers sue
business for small mistakes, businessmen can avoid, because this type of error is not included
in the contract.
Legal cases, most famously, that clearly describes the weak position of consumers in
e-commerce transactions, is the case Bay.com v. e-commerce Consumer:
This case because the result of negligence of Bay.com as a merchant websites, in Internet
transactions. Originated from the inclusion of the price of HITACHI TV 19''in February
1999. Bay.com list price of U.S. $ 164.50 or lower than the normal selling price (U.S. $ 400)
for 4 days. These low prices, caused many consumers bought these TV and make payments .
However, after it ,Bay.com refused to send goods. Consumers also feel have been cheated by
Bay.com. Bay.com fault has agreed to pay U.S. $ 575 thousand to complete the first court
battle over the price of goods in e-commerce stores.
According to Hans W.Micklitz, there two main policy types to give protection to the
consumer, such as : 27
a. complementary policy, policy that require the business actors to provide adequate
information and to publish adequate information to the consumer (right to informed)
b. compensatory policy, policy that consits of protection to consumer‘s economic
interest (right of health, right of safety)

In general, there are 4 basic consumer rights, such as:

a. the right to safety
b. the right to be informed
c. the right to be choose

27
Sukarmi,Cyber Law: Kontrak Elektronik dalam baying-bayang,hlm. 56
 198

d. the right to be heard

Guidelines for Consumer Protection of 1985, issued by UN, stated :

Consumers everywhere, from every nation, has the basic rights of social. mean the basic
rights of those is, the right to be able to get clear information, true, honest, right to redress,
right to basic human needs (home and food), the right to obtain a good environment and
clean, UN appelas the entire members to enforce these countries respectively.
Arrangement of legal protection for consumers is done by:
a) creating a consumer protection system that contains access and information, and
ensure legal certainty.
b) protect consumer interests in particular, and business parties interests in general.
c) improve the quality of goods and services.
d) provide legal protection to consumers from deceptive business practices and
misleading

Some significant efforts have been made around the world to amend the laws and
code of practice that exist, and create new guidelines governing the law for consumer
protection in e-commerce. World Trade Organizations, has established a work program on e-
commerce and published a study that identified a number of persolan related to consumer
protection. Organizations for Economic Co-operation and Development (OECD), after study
and commitment in earnest on this matter, agreeing Guidelines for Customer Protection in the
Context of Electronic Commerce. Europe Union that adopted Council Directive on Legal
Aspects of Electronic Commerce, validitated Distance Selling Directive and Privacy
Directive.

D. CONSUMER PROTECTION IN E-COMMERCE (INDONESIA PERSPECTIVE

In Indonesia, the interest of implementing Consumer Protection Act has been
attempted since the 1980s. However, those efforts were realized in 1999 through the issue of
Act No. 8, 1999, on Consumer Protection. This Act is ratified on 20 April 1999 and
effectively in effect one year later. The release of this Act has given hopes for Indonesian
community, in which consumers obtain proper protection for their lost from consuming
goods and services. The Consumer Protection Act guarantees the law assurance for the
consumers. It proves that consumer protection has been placed as part of the law‘s system,
which reflected on the objective‘s formulation of the act. ―The Consumer Protection Act is
aimed to be a strong basic law for the government and Non-Governmental Organizations in
performing efforts on consumer cultivation‖.
Prior to the release of this Act, many consumers perceived that their position was so
week and the entrepreneurs did not quite notice the consumer‘s rights. The Book of Civil
Laws, The Book of Criminal Laws, and other laws that relate to the consumer protection
efforts have been not yet enough.
The ratification of Consumer Protection Act on 20 April 1999 gives new hope on
consumer empowerment in Indonesia and placed the consumer protection into the national
law system. This Act offers alternative solutions for some problems on consumer‘s welfare
and security. This act explains that there is a future possibility for the formulation of new
regulations which basically contain determinations on consumer protection. Therefore, all
consumer rights and available instruments for enforcing the rights, can be totally
acknowledged, comprehensively conducted and integrated. This act is the foundational law
that can integrate and strengthen the enforcement of consumer protection law in Indonesia.
Generally, the Act No. No.8, 1999, contains XV chapters and 65 articles, with main ideas that
determine:
 199

a. Principles and objectives: become the fundamental principles i.e. (1) profit principle,
(2) fairness, (3) law assurance, (4) consumer‘s safety and security, and most
importantly (5) balance principle between entrepreneur and consumer (article 1 - 3)
b. Rights and obligation: There is a clarity of rights and obligation of them who have
interests in the business activities, such as regulating rights and obligations of the
consumers and the entrepreneurs (article 4 - 7)
c. Prohibited activities: reflecting claims for the entrepreneurs to product and trade the
proper distributable goods that fulfill the standard requirements, information (label,
advertisement), standard clause, selling techniques, and after sale facility (article 8 -
18)
d. Entrepreneur‘s responsibility: as an ethical and moral reference for the entrepreneur to
be responsible in giving redress of damages, libels, and/or consumer redress from
consuming goods/services. (article 19 - 28)
e. The social enforcement and supervision: as a reference for the government
responsibility in coordinating, conducting, enforcing, and supervising the consumer
protection (article 29 - 30)
f. Organization: it is needed as a mediator and government‘s partner in developing
consumer protection efforts (article 31 - 58)
g. Investigation and sanction: as the law enforcement efforts for violator (article 59 -
63)

Consumer Protection Act 1999, Also stated concerning Consumer Protection Rights,
namely :
1. Rights to comfort, safety, security in goods and services consumption
2. Right to choose of goods and/or services, and to get the goods or services appropriate
with the promises previously.
3. Right to be informed, truth, clear, honest about goods and services that purchased
4. Right to be heard the opinions and complaints of goods and services
5. Right to get assistance (advocation)
6. Rigth to educate
7. Rigth to corectly, honestly and non-discriminate threatment and service
8. Right to get compensantion, if the goods or services that accepted did not appropriate
with the agreement or not appropriate with the promised condition.

As described above, e-commerce transactions, raises several legal issues related to

consumer protection, namely :
1. Standard Contract
Article 1320 Civil Code states that the validity of a treaty requirement that the
agreement of the parties, the ability to make an appointment, a particular case and a
legitimate reason can be applied to determine the validity of electronic purchase and sale
agreement. It is mean that basically all contracts include e-commerce contract must
underlying on this requirements.
Understanding of standard clauses in Consumer Protection Act 1999, contained in
Article 1 points 10, says so:
Standard clauses are any rules or terms and conditions that have been prepared, and the first
set unilaterally by the businessmen who poured in a document and / or a binding agreement
and must be fulfilled by the consumer.
 200

Setting the standard clause is a consequence of policy efforts to empower consumers

in a balanced condition, the condition where there is a contractual relationship between
producers and consumers in the principle of freedom of contract.28
In e-commerce, consumers, for various reasons and under certain conditions will
receive, or simply sign the agreement that contains standard clauses. Consumer's position is
relatively lower than producer, it will be abused or taken advantage of the situation. Article
18 Consumer Protection Act 1999 prohibits the inclusion of standard clauses in documents or
agreement. This section prohibits such practices when it comes to eight things, namely :
(1) Business actors in offering goods and / or services intended for trading was forbidden to
make or to include standard clauses in each document and / or agreement if :
a. declare transfer business actors responsibilities
b. stated that the business actors has the right to refuse of re-purchased consumer goods,
c. stated, that business actors has the right to refuse transfer back the money paid for the
goods and / or services purchased by consumers;
d. states, the authorization of the consumer to business actors, either directly or
indirectly to make any unilateral action, which related to goods purchased by
consumers in installments; e. set about proving the loss of use of goods or use services
purchased by consumers;
f. gives principals the right to attempt to reduce benefits or reduce services consumer
assets which became the subject of buying and selling services;
g. consumer states to regulatory submission in the form of new rules, additional,
secondary and / or changes made unilaterally advanced by business actors in the use
of services that consumers buy;
h. states that empowers the consumer business to the imposition of liability rights, liens,
or rights to operate the equipment purchased by consumers in installments.
(2) Business actors shall be prohibited located the standard clauses in difficult position hat
caused difficult to read and understand.
The transfer of responsibility by business actors in e-commerce is very easy to do,
since the beginning of the consumer is confronted with a merchant that is not clear. so, if
anything goes wrong, will be easy for merchants to avoid, or shifting blame to other parties.
For business actors who violate the provisions of Article 18, threatened with criminal
penalties, a maximum of five years imprisonment, or a maximum criminal fine of 2 billion.
These provisions provided for in Article 62 paragraph 1.29
Furthermore the responsibilities of business actor toward consumer stated in article 19
of Consumer Protection Act, :
1) Business actors accountable, provide compensation for damage, pollution, and
consumer losses due to consumption of goods and or services produced or traded.
2) The compensation referred to in paragraph (1) can be refund or replacement goods and
/ or services similar or equal value, or medical care and / or the provision of
compensation in accordance with the provisions of the applicable legislation.
3) Providing compensation implemented within a period of 7 (seven) days after the date
of the transaction.

28
freedom of contract is when the parties making agreements which are in a situation and conditions,
are free to choose his will in the concept or in an agreement formula. free interpreted as not in a state of forced
and compelled, for all those who are doing the agreement. This means also that each party understands the
agreement and understand the contents of the agreement.
29
(1) Pelaku usaha yang melanggar ketentuan sebagaimana dimaksud dalam Pasal 8, Pasal 9, Pasal 10,
Pasal 13 ayat (2), Pasal 15, Pasal 17 ayat (1) huruf a, huruf b, huruf c,huruf e, ayat (2) dan Pasal 18 dipidana
dengan pidana penjara paling lama 5 (lima) tahun atau pidana denda paling banyak Rp 2.000.000.000,00 (dua
milyar rupiah).
 201

4) Provision compensation referred to in paragraph (1) and paragraph (2), not eliminate
the possibility of criminal charges based on further evidence of the existence of an
error element.
5) The provisions referred to in paragraph (1) and paragraph (2) does not apply, if
business actors can prove that the error was a mistake of consumers.

Related to Honest information, Consumer Protection Act Regulate about that in article
9: Prohibition to offered, promote, or advertise of goods and service with mislead or untruth
information. Article 13: Prohibition to offered, promoted, or to advertised with prize
promises, in fact there are no intent to distribute the prize to the customer.
Beside, Consumer Protection Act 1999, in 2008 Indonesia Government issued Act
about Information and Electronic Transaction ( IET Act) Number 11/2008, even not
completely and specifically arranged about consumer protection in e-commerce, but there are
several articles that can be legal bases to solved legal problems related to consumer
protections in e-commerce.
For electronic transaction IET Act 2008, stated in :
Article 17 sub articles (2) :
Parties that conduct Electronic Transactions as intended by section (1) must be in
good faith in making interaction and/or exchange of Electronic Information and/or
Electronic Records during the transactions
Article 18 :
(1) Electronic Transactions that are stated in Electronic Contracts shall bind on parties
Article 19
Parties that conduct Electronic Transactions must adopt agreed-on Electronic
systems30
Article 20 :
Unless provided otherwise by parties, Electronic Transactions shall occur at the time
the transaction offers sent by Senders/Originators have been received and accepted by
Recipients/Addressees.

Based on those articles, we know that electronic transaction happened (or enter into
force) when the parties agreed when the transaction offers sent by Senders/Originators have
been received and accepted by Recipients/Addressees. And the transaction based on the good
faith principles. Electronic contracts in electronic transactions, should have the same legal
force with conventional contracts. Therefore, the electronic contract must also be binding on
the parties as provided in Article 18 paragraph (1). But, this Act not completely arranged
about e-commerce transaction contract, and not describe the forms of infringement related to
electronic-contract.

2. Digital Signature
In IET Act 2008 article 1 point (12) describe digital signature as ―Electronic
signature‖ means a signature that contains Electronic Information that is attached to,
associated or linked with other Electronic Information that is used for means of verification
and authentication.
Article 5
(1) Electronic Information and/or Electronic Records and/or the printouts thereof shall
be lawful means of proof.

30
Elucidation of Article 19:“Agreed-on” in this article shall also include agreements with respect to
procedures contained in such Electronic Systems
 202

Article 12
(1) Any Person involved in electronic signing is required to provide security of
electronic Signatures he/she uses;

With the increased electronic activity, then the verification tool that can be used by
law should also include information, or electronic documents to facilitate the implementation
of the law. Also printouts of documents or information, must also be used as valid evidence
in law. To facilitate the implementation of the use of electronic evidence (either in electronic
or print), then the electronic evidence may be cited as the expansion of legal evidence, in
accordance with applicable procedural law in Indonesia. New electronic information can be
declared invalid, if using the electronic system in accordance with applicable regulations in
Indonesia. An electronic evidence can have the force of law, if the information can be
guaranteed its integrity, accountable, accessible, and can be displayed, so that explains a
situation. The person who filed an electronic evidence, should be able to show that the
information had come from a reliable electronic systems

3. Dispute Settlement
Consumer Protection Act 1999, divided COnsumen Dispute settlement into two
categories,such as :
1. Non-Litigation (Out of Court)
This mechanism also divided into two categories :
a. Peaceful settlement of disputes by the parties themselves
This alternative of dispute settlement is stated in article 43 (2) Consumer Protection
Act 1999. This article provide the possibility that the parties can solved their dispute
by their own choice, with no necessary involved the court, as long as not conflict with
the regulations. Even in elucidation of that articles describe that every stage of
consumer dispute settlement is applied peaceful settlement between the parties.
b. Dispute Settlement through Board of Consumer Dispute Settlement31
The government formed a new entity, namely the consumer dispute resolution body, to
resolve consumer disputes out of court. Each consumer, who feels harmed by business
actors, can complain to the BPSK. Complaints can be made in written or oral form.
Settlement of disputes in BPSK held to reach agreement on the form and amount of
damages, and / or on specific measures to ensure no repeat of the losses suffered by
consumers. In principle settlement of consumer disputes, sought can be done
peacefully, so as to satisfy the parties in dispute (win-win Solution) 32 . dispute
settlement procedures by BPSK regulated in the Law No 8/1999 jo Kepmenperindag
(Decree of Minister of Trade and IndustryNo.350/MPP/12/2001 on Duties and
Authority of BPSK.

2. Litigation33
When the peace efforts have failed to reach an agreement, or the parties do not want
to take the alternative of peace, then the parties can take their disputes through a court
settlement, by the way:
a) Filing of a civil lawsuit (conventional civil lawsuits, class action, legal standing, the
lawsuit by the government, or related institutions)
b) Settlement of consumer disputes in criminal

31
In Indonesia known as Badan Penyelesaian Sengketa Konsumen (BPSK)
32
Susanti Adi Nugroho,Proses Penyelesaian Sengketa Konsumen :Ditinjau dari Hukum Acara serta
Kendala Implementasinya,Kencana Prenada Media Group,Jakarta, 2008,hlm.100
33
Ibid, hlm.126
 203

c) Settlement of consumer disputes, through the instruments of state administrative law,

and through legal mechanisms to test the legal material.

Beside in the Consumer Protection Act, how to setlle the consumer cases related to e-
commerce, also can based on Information and Electronic Transaction Act 2008 article 38 and
39.
Article 38
(1) Any Person may institute actions against parties that provide Electronic Systems
and/or using Information Technology to his/her detriment. (2) The public in
accordance with provisions of laws and regulations may bring class action lawsuits
against parties that provide Electronic Systems and/or using Information Technology
to the public detriment.
Article 39
(1) Civil actions shall be instituted in accordance with provisions of laws and
regulations.
(2) In addition to resolution by civil actions as intended by section (1) parties may
resolve disputes through arbitration or other alternative dispute resolution institutions
in accordance with provisions of Laws and Regulations

Thus, people who suffer from illegal acts of others may file a civil lawsuit against the
person. Claims may be filed in representation. Civil suits are made in accordance with the
laws and regulations in force. Dispute resolution can also be solved by the method of
alternative dispute resolution or arbitration.

E. CONCLUSION
1. Consumers have a weak bargaining position compared with the business. with the
development of the way transactions via the Internet (e-commerce), the carrying of
vulnerability for the consumer's position. This is because still questioned about the
legal bases of applications of standards conract in e-commerce, digital signature, and
the dispute settlement mechanism.
2. In Indonesia itself, in general it has no rules regarding consumer protection law (Law
No.8/1999) and of electronic transactions in Law no.11/2008. but both this Act
specifically regulates belemlah on all legal issues that were born from an e-commerce
transactions. Thus, this resulted in the absence of a clear mechanism for consumer
protection and dispute resolution in e-commerce.
3. In Indonesia, the problem of e-commerce are rarely published in the media
information. This is because, do not have a problem or, in fact many problems, just
because there is no legal instruments, so there is no legal process relating to
consumer disputes in e-commerce. based on this, the Indonesian government should
immediately create and design a special law relating to e-commerce crime and how
efforts to protect consumers in e-commerce.

F. REFERENCES
Abdul Halim Barkatullah, Perlindungan Hukum bagi Konsumen Dalam Transaksi E-
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Atip Latifulhayat, Personal Data Protection in E-Commerce, Business Law Journal, Vol 18,
Maret, 2002
A.Zen Purba, Perlindungan Konsumen : Sendi-sendi pokok pengaturan,Hukum dan
Pembangunan, Tahun XXII, Agustus 1992
Budi Raharjo,E-commerce di Indonesia,Info Komputer, Edisi Oktober 1999
 204

Budi Sutedjo DO, Perspekif e-Business: Overview of Technical, Management and Strategy,
Yogyakarta, Andi, 2001
Charles F.Hemphill,The Consumer Protecion Hand Book A Legal Guide,A Spectrum Book,
New Jersey, 1981
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pkditjenpdn.depdag.go.id/.../index.php?Perlindungan%20Konsumen%20Dalam%20
E-commerce
Edmon Makarim, Kompilasi Hukum Telematika,PT Gravindo Persada, Jakarta, 2000
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Kamlesh K Bajaj and Debjani Nag, Executive directors-Commerce : Te Cutting Edge of
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PT.Mizan Grafika Sarana, 2001
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Reed and Angel, Computer Law : The Law and Regulation of Information Technology
,Oxford University Press, New York, Sixth Edition, 2007
Sukarmi, Cyber Law : Kontrak Elektronik dalam baying-bayang, Pustaka Sutra, Bandung,
2008
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serta Kendala Implementasinya,Kencana Prenada Media Group,Jakarta, 2008
 205

Student‘s Chamber

Introducing Legal Framework and Case Study of Cyber Crime in Indonesia

Presenters:

Irfan Maulana Muharikin

 206

THE REGULATION ON CYBER STALKING BASED ON

ACT NUMBER 11 OF 2008

Irfan Maulana Muharikin, Sherly Nanda Ade Yoan Sagita, Fachrun Nurrisya A 1

ABSTRACT
The development of information technology, it brings considerable impact of human life,
Positive impact activities namely make it easy for human life , while the negative effects of
inflicted is becoming increasingly new rising crime by making use of the development of this
technology. It is the same with a theory that stated that crime is product of society it‟s self.
The development of human civilization, the forms that appears crime increased as well. The
presence of computers as the spearhead of information technology revolution open the
potential of various technologies related progress. The internet opens the horizon
information knowledge and the facts from across the world. Internet without borders
produces the new crime. Cybercrime uses the information technology globally. The one of
negative effect was increased crimes that used computer and internet, that called cyber
crime. The most disturbing cyber crime which is still developing rapidly is the crime that
related to the privacy of a human being, called cyberstalking. This kind of cyberstalking
consists of harassing and threatening, but in the Act Number 11 of 2008 on Information and
Electronic Transaction only regulates the act of threatening, while harassing hasn‟t been
clearly codified.

Keywords: cyberstalking, harassing, threatening, Act Number 11 of 2008 on Information and

Electronic Transaction.

INTRODUCTION:
We live in this era named globalization. It is a process of interaction and integration
among the people, companies, and governments of different nations all around the worlds.
This worldwide movement implies the opening of local and nationalistic perspectives to a
broader outlook of an interconnected and interdependent world with free transfer of capital,
goods, and services (more towards to economic business and technology) across national
borders.
The development of information technology, also the presence of computers with the
internet networks opens the horizon of information, knowledge and the facts from across the
world. The Federal Networking Council (FNC) gives the definition about the internet on its
resolution dated 24 October 1995 as follows:2
Internet refers to the global information system that
a. is logically linked together by a globally unique address space based in the Internet
Protocol (IP) or its subsequent extensions;
b. is able to support communications using the Transmission Control Protocol/Internet
Protocol (TCP/IP) suite or its subsequent extension, and/or other Internet Protocol
(TCP/IP) or other compatible protocols; and
c. Providers, uses or makes accessible, either publicly or privately, high level services
layered on the communications and related infrastructure described herein.

1
Student at Law Faculty of Brawijaya University, Email: irfanmaulana1992@yahoo.com,
sherlynanda1994@gmail.com, risshalovva@gmail.com
2
Agus Raharjo, Cybercrime, PT Citra Aditya Bakti, Bandung, 2002, page 60.
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The internet without borders brings considerable impact of human life. The positive
impact is it makes human life easier, while the negative effects are increasing the
development of new crimes as high as the development of this technology. One of these new
crimes is cyber crime. The cyber crime use of information technology globally, such as
internets, e-mails, and other social networks, as a tool to commit a crime. This crime is
developing as fast as the development of internet and other social networks.
Picture 1. Global Internet Connectivity year 2000-2011

The most disturbing cyber crime which is still developing rapidly is the crime that
related to the privacy of a human being, called cyberstalking. This crime involves use of
internet to harass someone. The behaviour includes false accusations, threats etc. Normally,
majority of cyber stalkers are men and the majority of victims are women.
Indonesia also has regulation to overcome cyberstalking. It is Act Number 11 of 2008
on Information and Electronic Transaction. This kind of cyberstalking consists of harassing
and threatening, however in the Act Number 11 of 2008 on Information and Electronic
Transaction only regulates the act of threatening, while harassing hasn‘t been clearly
codified. Therefore, it is interesting for us to study this problem to find the most effective
solution and also to protect the society from this cyberstalking.

Legal Problem
According to Black's Law Dictionary 7th edition, cyberstalking is:
The act of threatening, harassing, or annoying someone through multiple e-mail
messages, as through the internet, especially with the intent of placing the recipient in fear
that an illegal act or an injury will be inflicted on the recipient or a member of the recipient's
family or household.
Therefore the main substances of cyberstalking are:
1. The act of threatening, harassing, or annoying someone;
2. Through multiple e-mail messages, as through the internet;
3. The intent of placing the recipient in fear that an illegal act or an injury will be
inflicted on the recipient or a member of the recipient's family or household.
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In Act Number 11 of 2008 on Information and Electronic Transaction, cyberstalking

can be categorized as a prohibited act, this declaration contained in article 4 paragraph 27 Act
Number 11 of 2008 on Information and Electronic Transaction:
―Setiap Orang dengan sengaja dan tanpa hak mendistribusikan dan/atau
mentransmisikan dan/atau membuat dapat diaksesnya Informasi Elektronik dan/atau
Dokumen Elektronik yang memiliki muatan pemerasan dan/atau pengancaman‖.
It means it is a prohibited act to any person, intentionally and without right, distributes
and/or transmits and/or makes accessible electronic information and/or electronic document
which contain extortion and/or threats. Stalking generally involves harassing or threatening
behaviour that an individual engages in repeatedly, such as following a person, appearing at a
person's home or place of business, making harassing phone calls, leaving written messages
or objects, or vandalizing a person's property.
Most of the law in many countries all around the world that regulate about stalking
requires that an act can be categorized as a crime called stalking if the offenders do the threat
to the victims. It is also regulated on Act Number 11 of 2008 on Information and Electronic
Transaction. While the act of harassment or bullying not regulated in this law. In fact, an act
of cyberstalking having the character of harassment might be the first step to the commission
of other crime. For example the kidnapping of children by a man he/she knew through
facebook. The offenders must be trailed the candidate of their victims and stalk through their
social networks.

Analysis
Sussan Brenner explains that cybercrime is divided by three categories, that is: crimes
in which the computer is the target of the criminal activity, crimes in which the computer is a
tool used to commit the crime, and crimes in which the use of computer is an incidental
aspect of the commission of the crime.3
According to PBB instrument on Tenth United Nations Congress on the Prevention of
Crimes and the Treatment of Offenders which held at Vienna, 10 until 17 April 2000, cyber
crimes can be seen in a narrow sense or in a broader sense. Cyber crime in narrow sense or
computer crime is any illegal behaviour directed by means of electronic operations that
targets the security of computer system and the data processed by them. Meanwhile cyber
crime in a broader sense or computer related crime is any illegal behaviour committed by
means of, or in a relation to, a computer system or network, including such crimes as illegal
possession, offering or distributing information by means of a computer system or network.4
The most disturbing cyber crime which is still developing rapidly is the crime that
related to the privacy of a human being, called cyberstalking. Although until 2012 there are
no cases of cyberstalking reported to police, it does not mean there are no threats to the
internet users. The presence of social networks makes cyber stalkers enable to watch updates
on their victims and in some cases, enabling them to perceive the existence of their victims.
Also the recent application software that use global positioning (GPS) technology, for
example foursquare, make them easier to discover their victim‘s place. It will facilitate cyber
stalkers do their actions.
The regulation about cyberstalking in Indonesia regulates in Kitab Undang-Undang
Hukum Pidana (KUHP) or the codified criminal law regulation as source of criminal law in
Indonesia, and Act Number 11 of 2008 on Information and Electronic Transaction.
Cyberstalking is not explicitly described, but threatening or annoying as the main substances

3
Josua Sitompul, 2013, available at http://m.hukumonline.com/klinik/detail/cl5960/ landasan-hukum-
penanganan-cyber-crime-di-indonesia. (online), 16 November 2014.
4
Ibid.
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of cyberstalking are regulated in KUHP and Act Number 11 of 2008 on Information and
Electronic Transaction.
According to Black‘s Law Dictionary, the main substances of cyberstalking are:
1. The act of threatening, harassing, or annoying someone;
2. Through multiple e-mail messages, as through the internet;
3. The intent of placing the recipient in fear that an illegal act or an injury will be
inflicted on the recipient or a member of the recipient's family or household.

Threatening and annoying someone through the internet with the intent of placing the
recipient in fear that an illegal act or an injury will be inflicted on the recipient or a member
of the recipient's family or household is regulated on article 27 until article 35 Act Number
11 of 2008 on Information and Electronic Transaction. Some of those articles that explain
about cyberstalking are article 27, 29 and 31 that reads as follows:
Article 27 paragraph (1):
Setiap Orang dengan sengaja dan tanpa hak mendistribusikan dan/atau
mentransmisikan dan/atau membuat dapat diaksesnya Informasi Elektronik
dan/atau Dokumen Elektronik yang memiliki muatan yang melanggar kesusilaan.
Article 29:
Setiap Orang dengan sengaja dan tanpa hak mengirimkan Informasi Elektronik
dan/atau Dokumen Elektronik yang berisi ancaman kekerasan atau menakut-
nakuti yang ditujukan secara pribadi.

Article 31 paragraph (1) and paragraph (2):

(1) Setiap Orang dengan sengaja dan tanpa hak mengirimkan Informasi Elektronik
dan/atau Dokumen Elektronik yang berisi ancaman kekerasan atau menakut-
nakuti yang ditujukan secara pribadi.
(2) Setiap Orang dengan sengaja dan tanpa hak atau melawan hukum melakukan
intersepsi atas transmisi Informasi Elektronik dan/atau Dokumen Elektronik yang
tidak bersifat publik dari, ke, dan di dalam suatu Komputer dan/atau Sistem
Elektronik tertentu milik Orang lain, baik yang tidak menyebabkan perubahan apa
pun maupun yang menyebabkan adanya perubahan, penghilangan, dan/atau
penghentian Informasi Elektronik dan/atau Dokumen Elektronik yang sedang
ditransmisikan.

An act of offend about those prohibited act can be rewarded by sentence such as
imprisonment or fines. That matter is set in article 45 paragraph (1), paragraph (3) and article
47 that reads as follows:
Article 47 paragraph (1):
Setiap Orang yang memenuhi unsur sebagaimana dimaksud dalam Pasal 27 ayat
(1), ayat (2), ayat (3), atau ayat (4) dipidana dengan pidana penjara paling lama 6
(enam) tahun dan/atau denda paling banyak Rp1.000.000.000,00 (satu miliar
rupiah).
Article 47 paragraph (3):
Setiap Orang yang memenuhi unsur sebagaimana dimaksud dalam Pasal 29
dipidana dengan pidana penjara paling lama 12 (dua belas) tahun dan/atau denda
paling banyak Rp2.000.000.000,00 (dua miliar rupiah).
Article 47:
Setiap Orang yang memenuhi unsur sebagaimana dimaksud dalam Pasal 31 ayat
(1) atau ayat (2) dipidana dengan pidana penjara paling lama 10 (sepuluh) tahun
dan/atau denda paling banyak Rp800.000.000,00 (delapan ratus juta rupiah).
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However regulation about cyber harassment has not been clearly codified in Act
Number 11 of 2008 on Information and Electronic Transaction. Cyber harassment refers to
online harassment. It is the use of email, instant messaging, social network, and derogatory
websites to harass an individual or group through personal attack. Cyber harassment can be in
the form of flames, comments made in chat room, or posting on blogs or other social
networking sites even often attack the victim with sexual harassment.5
The regulation about cyberstalking that unclear and unfirm, makes the criminal
penalty in Indonesia (especially for cyber harassment) seems have no deterrent effect.
Therefore the government needs to make a more complete and more decisive regulation
about cyberstalking. Moreover the government should consider a preventive means and
repressive means to overcome this cyberstalking. The preventive means such as extent the
danger of cyberstalking in the public socialization and the repressive means such as
imprisonment. The fight against cyberstalking needs a comprehensive approach. Given that
technical measures alone cannot prevent any crime, it is critical that law enforcement
agencies are allowed to investigate and prosecute cyberstalking effectively.
Furthermore the society itself must provide their self protection to prevent them from
cyberstalking. The self protection such as: do not post excess information about identity or
privacy on social networking websites; Think twice before posting pictures; Do not add
strangers to the friends list.
The government shall focus on implementing cyber security plans, addressing people,
process, and technology issues. The cyber security can be developed by the Police of
Indonesian Republic through its cybercrime division. This cybercrime division needs to
commit the resources to educate police officer on security practices, develop thorough plans
for the handling of sensitive data, records and transactions, and make a security such as
firewalls, antivirus software, intrusion detection tools, and authentication services. Therefore,
the Police of Indonesian Republic shall continue to improve the quality of its services.

CONCLUSION:
The regulation about cyberstalking that unclear and unfirm, makes the criminal
penalty in Indonesia (especially for cyber harassment) seems have no deterrent effect.
Therefore the government needs to make a more complete and more decisive regulation
about cyberstalking and shall focus on implementing cyber security plans, addressing people,
process, and technology issues. The cyber security can be developed by the Police of
Indonesian Republic through its cybercrime division. Furthermore the society itself must
provide their self protection to prevent them from cyberstalking.

5
Anonymous, http://definitions.uslegal.com/c/cyber-harassment/ (online), (15 November 2014)