Proceeding

STUDIES OF CYBER LAW IN INDONESIA AND

ASEAN COUNTRIES

Layli Email:

Abstract Act of 19/2016 contains Amendment Act No. 11 of 2008 on Information

and Electronic Transactions (ITE) Which can be the basis for implementing

of the Law on Arbitration, such as mediation that formed on the material test

results at the Constitutional Court, as amended by reason of securing due

recognition and respect for the rights and freedoms of others and to meet the

demands which are appropriate to the consideration security and public

order in a democratic society. The problem is What is the purpose and how

the arrangement of the ITE Act and its relationship to the Criminal Code and

How are the regulation of cyberspace (cyber law) in ASEAN countries?

Results of the study is that the virtual world settings related to the

enforcement of the Criminal Code but the Criminal Code has not been

adapted to technological developments. There are many other substances

that need to be changed, al-related terms. Cyberspace Law in ASEAN

Countries have made progress in accordance with the improvement of

technology, but it still needs to be adjusted to the needs of the user com-

munity.

Keywords: Indonesia, ASEAN and Cyber Law

A. Introduction Revised Act on Information and

Electronic Transactions (ITE Act) with

effect from 28.11.2016 responded to many

internet users in Indonesia. The govern-

ment revised the ITE Act because Indo-

nesia is trying to manage the Internet in

Indonesia. It was necessary given the

current happening digital transformation.

Therefore, the movement of the internet in

Indonesia is very fast. It is evident from

the number of Internet users in 2010

numbering 42 million, rose sharply to 132

million this year.1

"The movement of the internet very fast. In six years the number of users

already tripled, "said Samuel in the Mi-nistry of Communications and Informa-

tion Technology,2 "The movement of the internet very fast. In six years the number

of users already tripled, "said Samuel in

the Ministry of Communications and

1 Direktur Jenderal Aplikasi Informatika Semuel

Abrijani, Liputan 6@com, Senin 28 November 2016, di eksis di Batam, 20 Februari 2017 2 Ibid, Liputan 6@com, Senin 28 November 2016, di eksis di Batam, 20 Februari 2017.

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Proceeding

Information Technology."The presence of needs of today's society, so that the appli-

the internet is not denied benefits to the cation still needs to be interpreted by users

business world. However, there is the of the law, such as police, prosecutor, Jud-

complexity of the issues, such as technical ge and lawyers, as well as legal consul-

issues, legal issues eg online transactions tants. This can be seen on the norms that

whether legal, social, cultural example of exist in the Criminal Code.

behavior that is channeled through social The Act of 19/2016 on the Amend-

media, ment to Act Number 11 Year 2008 on

The Revision Act of ITE has actual- Information and Electronic Transaction

ly been carried out since 2012, but was changing The Act of 11/2008 on Infor-

finally set up in 2016. He emphasized that mation and Electronic Transactions on the the revision of UU ITE is expected to give results of the test material in the Constitu-

directions regarding. tional Court. This law amended by reason

Thus, in the process of government of securing due recognition and respect

discussions and listen to input and pers- for the rights and freedoms of others and

pectives of stakeholders and communities to meet the demands of a fair in accordan-

in the implementation and Communica- ce with security and public order in a de-

tion Technology (ICT). The benefits of mocratic society.

ICT must protect national interests, lest The Act was changed on material

instead sacrificed the national interest. test results at the Constitutional Court

Revision of ITE Act helpful trying to with a view to ensuring the rights and

make the Internet as possible for the freedoms through the use and utilization

people in accordance with the Constitu- of information technology in the life of

tion. Furthermore, with this revision the society, nation and state. In this regard,

government seeks to ensure the presence the rights and freedoms through the use

of ICT will strengthen social integrity and and utilization of information technology

educate the community, and to promote is done by considering the restrictions

the digital economy based on creativity. established by law with the sole purpose

Not only that, he explained the internet of securing due recognition and respect

initially present with a positive purpose, for the rights and freedoms of others and

that is to build Internet services with to meet the demands of a fair in accordan-

integrity. "Therefore, to ensure Internet ce with moral judgments, religious values, safety necessary legal basis. It was origi- security and public order in a democratic

nally why the ITE Act established that society

govern the use of the internet in order not The Act of 19/2016 on the Amend-

chaos. ment to Act Number 11 of 2008 on Infor-

Therefore, the government revised mation and Electronic Transaction Act

the ITE Act in order to establish cyber changing the Act No. 11/2008 on Infor-

world that are beneficial and can improve mation and Electronic Transaction has

civilization. Become Act of. 19/2016 on been duly modified to serve the commu-

the Amendment to Act no. 11 of 2008 on nity to help the process of change in the

Information and Electronic Transaction is era of globalization followed by rapid

related to an ordinance other regulation. technological improvement in current de-

especially in the enforcement process has velopment.

not been adjusted to the development This is in accordance with the views

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of legal experts in providing legal thinking in development, according to Mochtar Kusumaatmadja. He said that the law is a

tool for maintaining order in society. 6

Considering the legal nature of its

functions, is basically a conservative

means, nurturing and sustaining the law that has been achieved. That function is

needed in every community, including the

people who are building, because here too there are the results that should be

preserved, protected and secured. However, people who are building,

which in our definition means rapidly

changing society, the law is not enough to

have had such functions only. As Mochtar

Kusumaatmadja said that the law also

should help the process of change in

society. The views are conservative on law

which emphasizes the maintenance of order

in the sense of function static, and

emphasizes the conservative nature of the

law, assume that the law can not play a

significant role in the process of renewal. 7

In its establishment in accordance

with the spirit of the nation, although has

internationally aspects, but not con-trary

to the moral, religious values, secu-rity and public order in a system, which in

addition to renewal of legal substance, needs to be complemented by empowe-

ring bureaucracy (beureucratic enginee-ring) who put forward the concept model

or leadership, 8 so that the function of the

6 Otje Salman dan Eddy Damian (ed), Konsep-

Konsep Hukum dalam Pembangunan dari Prof. Dr. Mochtar Kusumaatmadja,S.H.,LL.M., Penerbit PT. Alumni, Bandung, 2002, hlm. V. 7 Mochtar Kusumaatmadja, Konsep-Konsep Hu-kum Dalam Pembangunan (Kumpulan Karya Tu-lis) Penerbit Alumni, Bandung, 2002, hlm. 14

8 Romli Atmasasmita, Menata Kembali Masa De-pan Pembangunan Hukum Nasional, Makalah di-sampaikan dalam “Seminar Pembangunan Hukum Nasional VIII” di Denpasar, 14-18 Juli 2003, hlm

7.

law as a means of Order & renewal, can

create harmony between the elements of the bureaucracy and the public in a con-

tainer called "Beureucratic and Social

Engineering" (BSE).

B. Identification Of Problems 1. What is the purpose and how the

rule of law number 19/2016 on the Amendment to Act Number 11 of

2008 on Information and Electro-nic Transactions?

2. How does the Act of 19/2016 on

the Amendment to Act Number 11 of Year 2008 on Information and

Electronic Transactions with the Criminal Code?

3. How will the regulation of cyber-space (cyber law) in ASEAN

countries?

C. Discussion In the following discussion will be

elaborated on: ▪ Settings Related to The New Re-

vised ITE Act (Act of 19/2016 on the Amendment to Law Number 11 Year 2008 on Information and Electronic Transactions);

▪ Activities That Can Violate Law Recent Ite; and

▪ The relationship between Act of 19/2026 about ITE with the Crimi-nal Code;

▪ Regulation of Cyberspace in ASEAN Countries, and in compa-rison with Indonesia.

▪ Settings Related to The New Revi-sed ITE Act (Act of 19/2016 on the Amendment to Act Number 11 of 2008 on Information and Electronic Transactions)

1. Article 27 paragraph (3) shall be

three (3) changes. It aims. The

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changes are intended to avoid mul-

tiple interpretations of the prohi-

bition to distribute, transmit and /

or make the inaccessibility of

Electronic Information laden insult

and / or defamation, as follows:

Adding Explanation. Over the term "distribute, transmit and / or make the inaccessibility of Electronic Information:

• Ensure that the provision to a complaint is not a common offense.

• Insist on that the criminal ele-ment in the provision referring to the provisions of defamation and slander set out in the Cri-minal Code.

2. Reduce the criminal threat at 2 (two) the following conditions: • The threat of criminal insult

and / or defamation derived from the imprisonment of 6 (six) years to a maximum of four (years) and / or a fine of at most Rp 1 billion to a maxi-mum of Rp 750 million.

• The threat of criminal delivery electronic information contai-

ning threats of violence or fear of imprisonment of 12 (twelve) years to a maximum of four (4) years and / or a fine of at most Rp 2 billion to a maximum of Rp 750 million.

3. Article 31 paragraph (4), and Ar-ticle 5, paragraph (1) and (2), the

contents of which implement the Constitutional Court decision, na-

mely: • Amending Article 31 parag-raph

(4) which originally man-dated

the setting procedures for

interception or eavesdropping

in the Government Regulation into the Law.

• Adding a clarification to the provisions of Article 5 (1) and(2) the existence of the Elec-

tronic Information and / or electronic documents as legal

evidence is valid. 4. Article 43 paragraph (5) and (6),

whose contents synchronize with

the code provisions on procedural law in the Criminal Code, as

follows: • The search and / or seizure

which originally must obtain permission Chairman of the local District Court, adjusted back to the provisions of the Criminal Procedure Code.

• The arrest of detention that previously had requested the establishment of the Chairman of the local District Court within 1 × 24 hours, adjusted back to the provisions of the Criminal Procedure Code.

5. Article 43 paragraph (5), whose

content is related to the provisions

that strengthen the role of civil

servant investigators (investiga-

tors) in UU ITE on the following

provisions: • The authority to restrict or

terminate access to criminal offenses related information technology;

• The authority requesting infor-mation from the Electronic System Operator criminal of-fenses related information technology.

6. Article 26, which adds provisions regarding the "right to be forgot-

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ten" or the "right to be forgotten", as follows:

• Each Electronic System Opera-tor shall delete the electronic information that is not relevant under his control at the request of the person concerned to be determined by the court.

• Each Electronic System Opera-tor shall provide a mechanism deletion of electronic informa-tion that is not relevant.

7. Article 40, which strengthen the

role of government in providing

protection from any kind of inter-

ference from the misuse of infor-

mation and electronic transactions

by inserting additional powers des-

cription: ▪

The government is obliged to prevent the dissemination of electronic information that has a charge which is prohibited;

▪ The Government is authorized to

terminate the access and / or instruct the Electronic System Operator to terminate access to electronic information that has a charge of violating the law.

▪ Activities That Can Violate Recent Uu

It

▪ Some Activities Were Revised In Act of

No. 19/2016, Are:

▪ Content In Violation Of Decency, The

Threat Remains That A Maxi-mum Of 6 Years In Prison.

• Gambling content, the threat remains that a maximum of 6 years in prison.

• Content that contains insults or defamation. When the first threatened with a maximum of 6 years in prison, is now 4

years in prison.

• Content extortion or threate-ning, the threat remains that a maximum of four years in prison.

• Content that is harmful to con-sumers, the threat remains that a maximum of 6 years in pri-son.

• Content that cause hostility racial issues, the threat remains that a maximum of 6 years in prison.

▪ The Relationship Between Act of

19/2026 On ITE with the Criminal Code

▪ In answering the the identification of problems regarding the relation-ship between Act of 19/2016 on the Amendment to Act Number 11 of 2008 on Information and Electronic Transactions with the Criminal Code, closely related to cybercrime and countermeasures facing various problems such as, issues of legality, the principle of jurisdictional and evidentiary

issues. 9

▪ Offense in the field of information technology is closely related to the criminalization of policy issues re-lating to cybercrime. This crimina-lization policy is a policy to define an action which was originally not a criminal offense (not convicted) be an offense (act can be impriso-ned). So in effect, the criminaliza-tion policy is part of a criminal (criminal policy) by means of cri-minal law (penal) so that part of

9 Ahmad M. Ramli, Cyber Law dan HAKI Dalam Sistem Hukum Indonesia, Refika Aditama, Ban-dung, 2014.

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the criminal law policy. Indeed criminalization policy cybercrime problem is not merely a matter of national policy (Indonesia), but also related to regional and inter-

national policies. 10

.

▪ While criminalization policy from the standpoint of criminal law po-licy (penal policy), not just the policy sets / formulate / formulate what conduct can be imprisoned (including criminal sanction), but also includes the issue of how the policy formulation/legislation was drafted in a single unified legal system criminal (legislative poli-

cy) and that harmonious. 11

▪ UN Congress resolution VIII/1990 concerning computer related cri-mes, proposed a number of poli-cies related to cybercrime preven-

tion, namely12

:

1. Encouraging member states to intensify prevention efforts more effective computer misu-se.

2. Encouraging member states in-creasing international activity in the fight against cybercrime.

3. Recommend to the Committee

on Control and Prevention of Vice (Comittee on Crime Pre-

vention and Control) UN: a. Disseminate guidelines and

standards to help members

10

Ibid., dalam Ramli, hal 21. Dalam Kongres PBB

X/April 2000 menganai computer related crime te-lah dinyatakan bahwa negara-negara anggota harus berusaha melakukan harmonisasi ketentuan-keten-tuan yang berhubungan dengan kriminalisasi, pem-buktian, dan prosedur (States should seek harmoni-zation of the relevant provisions on criminalisa-tion, evidence and procedure). 11 Ibid.,

12 Ibid.,

against cybercrime at na-tional, regional and interna-tional levels;

b. Develop further research

and analysis in order to

find new ways to face the problem of cybercrime in

the future. c. Cybercrime consider when

reviewing pengimplemen-tasian extradition and coo-

peration assistance in the field of crime prevention.

▪ Harmonization of policy measures by other countries, especially in environments ASIA / ASEAN, however, Indonesia has made efforts to anticipate them in draf-ting a new Criminal Code, for example, in Book I (General Pro-visions) made provisions concer-ning:

a. Definition of goods (Article

174) which includes intangible

form of data and computer

programs, services, telephone /

telecommunications / computer

services. b. Understanding the key (Article

178) that includes a secret code, enter the computer key,

magnetic card, signal that has been programmed to mebuka

something. c. Definition of a letter (Article

188) including data written /

stored on disks, magnetic ta-

pes, computer storage media or other electronic data storage.

d. Understanding space (Article

189), including a stretch or a computer terminal that can be

accessed by certain ways. e. Understanding entered (Article

190), including access to a

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Proceeding

computer or entered into the computer system.

f. Understanding the network

(Article 191) including a com-

puter network or computer communication systems.

In addition, in book II (Cri-

me), also has made changes to the

formulation of the offense or add new offenses relating to technolo-

gical advances, among others: a. Eavesdropping on the conver-

sation in the room with techni-cal aids (Article 264);

b. Installing technical aids for the purpose of hearing / record speech (Article 264);

c. Record (have / broadcast) ima-

ges with technical aids in the room not to the public (Article

266); d. Damaging / made unusable

buildings for facilities / infras-

tructure public (among other

things the building of teleco-

mmunications / communica-

tions via satellite / remote

communication) -Pasal 546; e. Money laundering (Money

Loundering) -Pasal 641-642. In relation to the han-

dling of cybercrime, Indonesia

as adherents of positivism in

trouble. Because it shifts and

changes in the handling of the

problem of cybercrime is nee-

ded and there must be courage

and innovation of law enfor-

cement agencies to streamline

regulations that have to do with

the interpretation or construc-

tion of law which is based on

the theory / science of law, the

opinion of experts, case law, or

sourced of the basic ideas that are conceptually accountable.

o Cyber regulation in ASEAN Coun-tries ▪ Cyberlaw in Singapore

▪ The Electronic Transactions Act (ETA) 1998

ETA as a regulator of the

certification authority. Singapore

has a mission to become the shaft /

hub of international electronic

commerce, where electronic com-

merce transactions from the region

and all over the earth processed.

The Electronic Transactions

Act has been set .10 in July 1998

to create a legal framework of the

legislation for electronic commer-

ce transactions in Singapore which

allows for the Minister of Informa-

tion Communications and the Arts

to make regulations regarding the

licensing and regulation of certifi-

cation authorities in Singapore.

• The Goal Made of Eta• Facilitate electronic communi-

cation by means of reliable electronic records;

• Facilitate electronic commer-ce, namely eliminating barriers

unauthorized lectronic trading on the writing and signature

requirements, and to promote the development of legislation

and business infrastructure ne-cessary to implement the gua-

rantee / secure electronic com-

merce;• Facilitate the electronic storage

of documents the government and companies according to the law, and to promote the

87

Proceeding

efficient delivery of the go-

vernment office for the assis-tance of reliable electronic re-

cords;

• Minimize the incidence of alektronik same archive (doub-le), changes are not intentional and deliberate about the archi-ves, and fraud in electronic commerce, etc;

• Help towards uniformity of rules, regulations and the vali-dation and integrity of electro-nic records; and

• Promoting trust, integrity and

reliability of electronic records and electronic commerce, and

to assist the development and

expansion of electronic com-merce through the use of elec-

tronic signatures to guarantee the authenticity and integrity

of the correspondence using elec-tronic media.

• Basically ETA settings are:

• Electronic Contracts▪ Eelectronic contract is ba-

sed on an online trading laws are conducted proper-ly and quickly and to ensure that electronic con-tracts have legal certainty.

▪ Obligation Service Provi-der Network Adjusting the potential / opportunity that is owned by the network service provider to do things that are not desi-rable, such as taking, car-rying, destroy material or third party information using the network services. Singapore government felt the need to be aware of it.

▪ Signature and Electronic Records

However the law requires

records / electronic archi-

val evidence to deal with

cases electronically, there-

fore signatures and elec-

tronic records must be law-

ful, but not all things / evi-

dence may include electro-

nic records in accordance

established by the Govern-

ment of Singapore.

Steps taken by Singa-

pore to make ETA is what

might be supporting the

advancement of e-commer-

ce businesses in Singapore

and the obvious reason why

Indonesia's e-commer-ce

business is not growing

because of the absence of a

legal power to convince

people that the business of

e-commerce in Indonesia

safe are like in the country.

• Cyberlaw In Malaysia

• The Computer Crime Act 1997 As the country's closest compa-

rator sociologically, Malaysia since

1997 has enacted and implemented

several laws governing the various as-

pects of the cyberlaw such as the Law

of Computer Crime, Law on Digital

Signature, the Law on Communica-

tions and Multimedia, also copyright

protection on the Internet through the

amendment Copyrighted.

Meanwhile, the Personal Data

Protection Bill is still simmering in the

Malaysian parliament. The Computer

Crime Act itself covers about crimes

committed via the computer, because

cybercrime is in the country of Ma-

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Proceeding

laysia not only covers all aspects of

crime / offense related to the Internet. Is unauthorized access to the computer

material, is included cybercrime. This means, if I have a computer

and you are not entitled to access my

computer, because I did not allow you

to access them, but you access it

without my permission, then it is in-

cluded cybercrime, despite the fact

that my computer is not connected to

Internet. Furthermore, the access viola-tion

was (cybercrime) includes all efforts to

make the computer do / run-ning

program (a set of instructions that make

the computer to perform one or a

number of actions in accordance with

the expected makers these instruc-

tions), or data from other computers

(belonging violators) safely, unautho-

rized, also included to make the vic-

tim's computer to perform certain

functions in accordance with the time

specified by the violators earlier. The

punishment for the violation of

computer Crime Act. A penalty of fifty thousand ring-

git (RM50,000) and or confinement /

imprisonment with long time not to

exceed five years in accordance with

applicable law in the country (Malay-

sia). The Computer Crime Act inclu-

de:

• Accessing computer material without permission;

• Using the computer for other functions;

• Entering the secret programs of others via computer;

• Change / delete programs or data of others;

• Abusing program / data of others for personal gain.

• Comparison ITE Act In The Scope Of Southeast Asian Nations.

Next will be discussed compa-

risons between UU ITE Indonesia with other countries, especially on this

occasion with our neighboring coun-

tries, namely the ASEAN countries. Some important things are a

concern in every cyberlaw in ASEAN countries, especially those related to e-

commerce, among others: Legal Protection Against Consu-

mers

• Indonesia ITE Act explained that consumers

are entitled to obtain complete information relating to the detail of

products, manufacturers and con-tract terms.

• Malaysia Communications and Multimedia Act 1998 specifies that every ser-

vice provider must accept and res-

pond to consumer complaints.

• PhilippinesElectronic Commerce Act 2000

and Consumer Act 1991 specifies

that anyone who uses electronic

transaction is subject to the appli-

cable law. While on the other

ASEAN countries, it has not been

set.

Personal Data Protection And Pri-

vacy

• SingaporeAs a pioneer of the ASEAN coun-

tries that enforce cyberlaw gover-

ning e-commerce code to protect

personal data and consumer com-

munication in commerce on the

Internet.

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Proceeding

• Indonesia

It is set in UU ITE.

• Malaysia & ThailandStill a draft, While on the other ASEAN countries, it has not been set.

Cybercrime Up to now there are eight ASEAN

countries that already have cyberlaw

governing cybercrime or crime on the

Internet, namely Brunei, Malaysia,

Myanmar, Philippines, Singapore,

Thailand, Vietnam and Indonesia in-

cluding through the ITE Law which

was passed in March 2008 ago.

Online Dispute Resolution (ODR)

ODR is a dispute resolution set on

the internet.

• Philippines Is the only ASEAN country that has had such rules with the Philip-pines Multi-Door Courthouse.

• Singapore

Began building the ODR facilities.

• Thailand

Still in draft form.

• Malaysia Still in the design phase of setting up the International Cybercourt of Justice.

• Indonesia In UU ITE no special rules on

disputes over the internet, inclu-

ding online mediation. While In-

donesia want to increase to the of

featured sector of Indonesia in the

MEA, namely Information Tech-

nology sector, among others, onli-

ne mediation one of the two other

sectors, which is the strongest

sector of Indonesia in comparison

with other ASEAN countries na-

mely Natural Resources, and the

Creative Economy, but in practice

has not been applied.

D. Closing

1. Conclusion a. Purpose of the Act setting NO.

19/2016 on the Amendment to

Law Number 11 Year 2008 on

Information and Electronic Tran-

sactions is to ensure recognition

and respect for the rights and

freedoms of others and to meet the

demands of a fair in accordance

with considerations of morality,

religious values, security, and or-

der public in a democratic society, b. Setting the virtual world related to

the enforcement of the Criminal

Code. But the Criminal Code has

not been adapted to technological

developments. There are many

other substances that need to be

changed, al-related terms; c. Cyber Law in ASEAN Countries

have made progress in accordance

with the improvement of technolo-

gy, but it still needs to be adjusted

to the needs of the user commu-

nity.

2. Recommendation a. Need for counseling for people to

understand how to leverage online media to meet their needs

b. It should immediately make

amendments to the Act relating to the Cyber Regulations such as the

Criminal Code so as not to cause interpretation to the wearer law.

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Proceeding

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