“Analisa” Daily

Published on June 29, 2010

By. : DR. Iman Sjahputra S.H., Sp.N., LL.M.

By internet the trade transaction can be finished within seconds. In the old days, an agreement is indicated by shaking hand, now in the cyber law era it can be done by pressing the words and numbers on the computer keyboard. If in the old days trade is affecting the economy only, by acceleration of technology development, now trade is having a very complex effect.

Trade as a form of offer and demand on goods and services are very strategic in its character in the dynamics of the human life. Many kinds of commodities such as foods up until weapons can be traded. In such case, every government of any country shall be aware that trade is a dynamic process, in fact it tends to be progressive harmonically with the fast development of technology and shall be managed seriously. If not, then public and the state will suffer a lost. Then how the modern trading such as the electronic transaction in this cyber era shall be managed? Dr Iman Sjahputra, a very concerned legal practitioner, passed with the predicate of “very satisfactory”, a top advocate, a Siantarese, with an office in Sudirman area, was announced to have the right to carry a Doctor of Law by the Senate of Professor of the Padjajaran University, Bandung, on June 18, 2010. In a dissertation which titled: Consumer Protection in an Electronic Transaction Observed by Legal Perspective of Consumers Protection and the Cyber Law, Iman throughfully analyzed the legal implication in the digital era nowadays. How is the analysis? Here is the interview citation of DR. Iman Sjahputra S.H., Sp.N., LL.M., with the journalist.

Q  : Why do you give much attention into the electronic trade and the cyber law?

A  : These two things will develop very fast and we cannot ignore it. It is not a matter of willing or not, can or cannot, but many problems will continually to roll on within the electronic trading which is normally called electronic commerce (e-commerce). Cyberspace era is a reality which we have to live on. There are many ease given by this business system via internet. However, in the other way, whether we realize it or not, there are many problems which potentially threaten as a time bomb for us.

Q  : What do you mean by “time bomb”?

A  : In modern era with the acceleration of technology development, Indonesia is still left over in its regulation.

Q  : What does that mean?

A  : The regulation and law we have in regulating e-commerce are still partly, not fully. We don’t have a comprehensive law on cyber law. For example, our law on consumer protection is still conventional whereas in this cyber law era the demand to soon regulate e-commerce in a codification is greater.

Q  : Could you describe the definition of e-commerce which is owned by Indonesia is not complete?

A  : We do have the Law No. 8 Year 1999 concerning the Consumer Protection Law, however this law is only able to reach the traditional offline trading model, not in the cyber space with online trading system. Law No. 8 Year 1999 in limitative way only protects the consumers who are doing transactions within national jurisdiction. Therefore such law cannot entirely used as a legal basis to protect consumers’ right who are doing international electronic transactions.

Q  : Then so far the consumers in Indonesia are not protected?

A  : In theory is not like that. We now have the Law No. 11 Year 2008 concerning Electronic Information and Transaction Law. This law has adopted the principles of the Private International Law and the International Law, especially in relation with forum competence which takes role in deciding the forum competence (the court and the arbitration) to settle cases regarding the breach of consumers’ rights who are doing the business transactions electronically. However this regulation is not perfected yet since there are still many articles in that regulation which order to compose a Government Regulation that is still not yet implemented. Therefore no wonder if in practice, the consumers’ rights and obligations are still not protected.

Q  :  The substantive of your doctorate dissertation contain so many messages of the urgency of consumers’ protection. Why?

A  : It is very important to note that in the era of modern information technology, the risks are faced by the consumers nowadays is much bigger than in the traditional period. The rapid changes in the field of information technology make the distribution system happening in a very spectacular speed and internationally. As an effect, the consumers might not now the producers since they are living in different countries. With such reality, it can clearly be seen that the law on consumers protection is closely related with the internationalized trade which is happening in economic activities of a country, the practical problem which occur in the international trade competition can bring negative implications for the consumers.

Q  : Do you have the data on that matter?

A  : This is of course is not a new data. But it is a reality, that besides giving benefits with all the simplicities which are offered, the trading with electronic transaction is full with risks in case we don’t have any comprehensive regulations. The survey result of 12 world consumer organizations which was held at the end of the year 1998 and the beginning of 1999 shows that the negative factors caused by the e-commerce trading are: one of the ten kind of goods ordered were not received by buyers. Two buyers from England and Hong Kong have waited for more than 5 years for a refund. More than forty percent (40%) of products ordered by buyers were received without the payment receipt. Seventy three percent (73%) of the trader were failed to fulfill the contract agreement (crucial contract term). More than twenty five percent (25%) of the sellers do not affix their address and telephone numbers and twenty four percent (24%) of the seller do not affix the clear cost of the ordered goods.

Q  :  Was that the only problems that might threat the comfort of electronic transaction?

A  : There are other problems which are more serious. In the concrete e-commerce pattern of national banking field has been chaotic with the emergence of a cyber crime. The national banking system once got shocked with the act of Steven Haryanto. Steven was deliberately creating an original yet false site of internet banking service of Bank Central Asia (BCA). In the preparation of his act, Steven bought the similar domains such as wwwklikbca.com, kilkbca.com, clik-bca.com, klickbca.com and klikbac.com. The substances of the said similar sites are very close to the original, except there are no security to do a transaction and the existence of a false login forms. The aims is, incase of a BCA customer was wrongly typed the original BCA address site then they will be trapped. The user id and the personal identification number (PIN) are copied without permission and the customers’ data are being recorded without right and the customers’ data are stolen.

Q  :  So what is the thinking in your dissertation in relation to the emergence of the cyber crime?

A  : We have to realize that cyber crime is a new dimension of nowadays crime which got big attention from the international society. There are many terms which were being created in relation to the term of cyber crime which is regarded as a new form of anti social behavior. However it is clear that the crime in cyber space (virtual space offence is a new dimension of high tech crime, transnational crime and white collar crimes.

Q  :  You have said about the regulation which is still left over. What is the solution?

A  : As I have stated that recent and future e-commerce is something that we have to accept and live on. The cyberspace era with its borderless characteristic and crossing the jurisdiction which we have to wisely face. Therefore we have to create a community trust both nationally and internationally. Since the typical character of a trade transaction in the cyberspace era, trust is the main principal beside the technology ability with the human resources who are able to compete globally.

Q  : The actual?

A  : We have to fulfill the common standards (global) in regard of consumers’ protection that are doing electronic transaction. The e-commerce consumers’ protection is very important in the market system within the whole world, so the producers and the businessman who neglect the consumers’ protection, its business tends to be ineffective and potentially degrading, in regard of consumers’ trust, who are doing the business transaction electronically.

Q  :  In aspect of regulation?

A  :  On that matter, we can be based and derived from Article 10 of Law concerning the Information and Electronic Transaction Law which is stressing on the urgencies of the certification of its endurance. According to this Article, “The endurance certification acts as a proof that the business actors who are doing the business electronically is proper to do business after getting through the evaluation and the audit from the competent body. The proof that is has the endurance certificate can be shown by putting the certification logo as a trust mark on the (home page) of the businessman”.

Q  :  What does that mean?

A  : The simple way is, in the era of cyberspace, doing business with electronic transaction pattern, we have to set up the synchronized regulation in the first place, after which, the instruction of Article 10 of the Law on ITE to set up Certification Institute shall be expedited by making a Government Regulation as a technical guidance for the execution. Because the Endurance Certification Institute has an important and strategic role in supervising the goods and services in the internet. The aim is so the goods and services that were marketed electronically are really fulfilled the standard and good to be consumed. Therefore it is clear that the goods and services which are marketed have to fulfill the requirements, quality or the quality of goods/services are proper and safe for the society (consumers).

Q  : What is the effect if Indonesia doesn’t have the Endurance Certification Institution yet?

A  : It will give a bad impact. The community trust level on the products marketed from Indonesia will be regarded as low and have a bad quality. That means we will be excluded from the social relations and the world trade. It must be noted that from the year 1981 the European Communities kept stressing the urgency of the implementation of the trade strategy. The European Communities have issued a guidance to protect the consumers’ rights which are products that are marketed in the European Union countries must fulfill the minimum health and safety standard of the consumers. The consumers should be able to enjoy the profit of the common market of European Communities and in principle the consumers’ interest should become the main reasons of all policy which was taken by European Union. Besides, while conducting the comparative research on the consumers’ protection in electronic transaction to Singapore, it turns up that this “Lion Country” has successfully created the consumers’ protection system in the field of e-commerce since 1996, by creating a Trust Case institution. This institution’s duty and function is to keep the quality of each goods and services which are going to be marketed online be accredited first by the Case Trust Accreditation Body. This body started its operation since 1999.

Q  : Does Indonesia need an accreditation institution such as the one in Singapore?

A  : Of course! Beside to maintain the quality of goods and services which was marketed online, this institution is also the instruction of the Law No. 11 Year 2008 concerning the Electronic Information and Transactions which have to be implemented soon.

Q  : From doctrinal perspective, is there any change of philosophy in the e-commerce pattern?

A  : Certainly. If in the old days, to be exact in the Rome emporium, the philosophy of trade is very much depends on the doctrine of “caveat emptor” (buyers beware) which as from the end of the 19th century and since the e-commerce is known, the caveat emptor doctrine was replaced by “caveat vinditor” (sellers beware) which was followed by the philosophy of the need of seller to be responsible on the goods and services which they want to sell as the form of responsibility of the producers (product liability). The doctrine is very closely related to the accreditation institution, in which all goods and services which they want to sell to the consumers have to passed the quality test so it will not caused the consumers to suffer any lost.

That was the interview with Dr. Iman Sjahputra, SH, Spn, LLM, in Jakarta, a senior legal practitioner who often handling cases of Intellectual Property and Cyber. (gun)