Evaluation of Electronic Information and Transaction

in the Perspective of Criminal Enforcement in Indonesia

Suwarto, Muhammad Ardian and Anwar Saragih

Universitas Sumatera Utara, Medan, Indonesia

Keywords: Ciminal Law, Electronic Transactions, Electronic Communication, Rubber Article.

Abstract: This progressing technology is marked by the birth of a variety of social media, such as; Facebook (2004),

Twitter (2006), Whatsaap (2009), Path (2010) and Instagram (2010) as an inseparable part of the development

of internetization in various parts of the world. In order to protect consumers (the public) in the use of

technology through the plenary session of the Indonesian Parliament ratified the ITE Bill into law, namely

Law Number 11 of 2008 and revised again in 2016 with the birth of Law Number 19 of 2016 concerning

Information and Electronic Transactions (ITE Law). 10 years since the ITE Law was passed, according to

data released by the Southeast Asia Freedom of Expression Network (SAFEnet) until October 2018 there

have been 245 cases reported in Indonesia. North Sumatra is one of the areas where many people are entangled

in the ITE Law, which are 12 cases. The problem is the duplication of criminal acts regulated in the ITE Law

also contained in the criminal provisions in the Criminal Code (KUHP), namely Article 156 of the Criminal

Code concerning hatred and contempt for race, country of origin, religion, place, origin, descent, nationality

or position according to state law with the threat of 5 years imprisonment as well as Article 310 of the Criminal

Code and Article 311 of the Criminal Code concerning defamation with the threat of 5 years imprisonment

which makes this law inclined towards the rubber article. The research method is qualitative with a normative

juridical approach with observation as primary data and international and national journals and books as

secondary data triangulated data to those considered representative in answering this issue. The research

output is expected to be an international journal, international proceedings and textbooks for students.

1 INTRODUCTION

The development of information and communication

is growing rapidly along with advances in technology

and science. This progressing technology is marked

by the birth of a variety of social media, such as;

Facebook (2004), Twitter (2006), Whatsaap (2009),

Path (2010) and Instagram (2010) as an inseparable

part of the development of internetization in various

parts of the world (Siddiqui and Tajinder Singh, 2015:

71-75), including Indonesia. The impact of this

digitalization era has resulted in a shift in community

activities from the real world to the virtual world.

Mainly the activities of individual people who share

(share) their daily activities, discuss, communicate

with friends to become a container in conducting

criticism of government policy (Ghulam, et al., 2014).

Seeing this phenomenon in March 2003, through

the State Ministry of Communication and

Information (Communication and Information), the

Ministry of Transportation and the Ministry of

Industry and Trade began to form teams and

collaborate with campuses in an effort to draft the

Draft Law on Electronic Information Transactions.

The spirit is all activities that are electronic and occur

in cyberspace which began to be out of control can

protect consumers (the public) in the use of

technology (Juwenie, 2016). Not only that, legal

certainty related to electronic transaction activities

was also considered important at that time. In an

effort to encourage economic growth due to the sale

and purchase of goods transactions until the business

began to shift from manual activities to the internet.

Until March 25, 2008, through a plenary session of

the Indonesian Parliament passed the ITE Bill into

law, namely Law Number 11 of 2008 and revised

again in 2016 with the birth of Law Number 19 of

2016 concerning Information and Electronic

Transactions (ITE Law ).

Empirically, in the 10 years since the enactment

of the ITE Law, according to data released by the

Southeast Asia Freedom of Expression Network

Suwarto, ., Ardian, M. and Saragih, A.

Evaluation of Electronic Information and Transaction in the Perspective of Criminal Enforcement in Indonesia.

DOI: 10.5220/0010119404330437

In Proceedings of the 3rd International Conference on Social and Political Development (ICOSOP 3 2019) - Social Engineering Governance for the People, Technology and Infrastructure in

Revolution Industry 4.0, pages 433-437

ISBN: 978-989-758-472-5

433

(SAFEnet) until October 2018 there have been 245

cases reported in Indonesia. Where almost 49.72

percent of them were snared by the complaint of

defamation of the rest of the good name related to the

expression of hatred and blasphemy (Tempo, 29

November 2018). If we rearrange the regions which

have the most reports related to ITE Law issues,

namely DKI Jakarta (88 cases), East Java (22 cases),

Central Java (16 cases), West Java (15 cases), NTB

(14 cases) and Sumatra North (12 cases), the

remainder of which is spread throughout Indonesia

(data from SAFEnet 2018)

Furthermore, the articles in the ITE Law that are

often used to prosecute such cases are Article 27

paragraph 3 regarding defamation and / or

defamation. Article 28 paragraph (3) juncto Article

45 paragraph (2) of the ITE Law related to the spread

of SARA-based hatred then Article 28 paragraph 2

juncto Article 45 paragraph 2 of Law Number 11

Year 2008 concerning Information and Electronic

Transactions (ITE) due to deliberate or without the

right to disseminate misleading information and

article 29 paragraph (1) concerning Extortion and

Threats (Lubis and Maulana, 2010: 13-20)

The problem is the duplication of criminal acts

stipulated in the ITE Law also contained in criminal

provisions in the Law Code of Law Criminal Code

(KUHP), namely Article 156 of the Criminal Code

concerning hatred and contempt for race, country of

origin, religion, place, origin, ancestry, nationality or

position according to state law with the threat of 5

years imprisonment and Article 310 of the Criminal

Code and Article 311 of the Criminal Code

concerning defamation with the threat of

imprisonment of 5 years (Moeljatno, 2007: 23)

Herein lies the problem where legal translation is

vulnerable to multiple interpretations. Because the

position of expert witnesses is very influential on the

interpretation of violations of the ITE Law which is

also contained in the Criminal Code (KUHP). This

multi-interpretation article has the potential to be

misused to threaten freedom of expression because it

depends on the opinion of expert witnesses in court.

This condition certainly has the potential to impede

the freedom of expression of citizens regulated in

article 28 of the 1945 Constitution concerning

freedom of opinion. Therefore, a study entitled

"Evaluation of the Information and Electronic

Transaction Law (ITE) in the Perspective of Criminal

Law Enforcement in Indonesia" needs to be done for

the sake of improving the law in Indonesia.

2 METHOD

This research is a qualitative research with a critical

paradigm. The researcher collected data using the

observation method as primary data. Then secondary

data from interviews, international journals of books,

and media coverage. Collecting research data is then

carried out through a review of documents or reports

relating to the focus of research relating to the law,

information law and electronic transactions and

criminal law in Indonesia. Furthermore, the results of

this study are then triangulated.

3 RESULT

3.1 The Process of Internetzation in

Indonesia

The development of the internet has had an impact on

changes in the political, economic, social and cultural

fields. One of the developments in science and

technology that is progressing very rapidly is the

development in the field of information technology.

This is marked by the birth of the internet, which is

scientifically referred to as cyberspace.

Linked to the internationalization of the

sovereignty dimension of the state, it then expands,

which no longer consists of land, sea, and air-space,

but also virtual space. Ter-virtual space image of the

Internet has created a new legal regime, known as

Internet law (the law of the internet), law-virtual

space (cyberspace law), or the telecommunications

law. Thanks to the internet, information exchange

takes place faster and faster. The internet and its

supporting technological devices seem to want and

have made the world almost. Beware of the growing

internet technology and the number of users, the

Government of Indonesia through the Ministry of

Communication and Information has prepared a

number of regulations to regulate various types and

models of information. One of them is the Law of the

Republic of Indonesia Number 11 Year 2008

concerning Information and Electronic Transactions

(UU ITE). The ITE Law, in addition to being a sign

of changing orientation, models and information

systems in Indonesia, also marks the return of state

restrictions on information, including information

received through the internet (Atmajan, 2014).

According to Zain Noval, Head of Medan City

Information and Communication Office:

"Social media is an online media where users can

engage in various activities including

communicating with each other, seeking

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information, and adding new friends, with all the

features it has. Communication in social media

becomes very easy because communicating using

social media is no longer limited by distance, time,

and space. Communication can occur anywhere,

anytime, and even without having to meet face to

face. "

This means that the use of massive

communication technology can be found in various

places and situations, we can easily meet people who

are interacting with other parties who are connected

through its gadgets. In the domestic sphere, from the

living room to the bedroom, communication

technology is scattered side by side with human life.

The more prominent the role of communication

technology in our midst, it can be seen clearly that

lifestyle changes that occur apply in almost all circles,

children, adolescents and adults.

3.2 Law in Indonesia

Law enforcement in Indonesia has difficulty in

dealing with the phenomenon of electronic crime

(cybercrime). This is because there are still very few

law enforcement officers who understand the ins and

outs of information technology (internet). Then, law

enforcement officials in the regions were not ready to

anticipate the rise of this crime because there are still

many law enforcement officials who have not been

literate about technology. Then there are still many

law enforcement institutions in the regions that are

not yet supported by the Internet network.

Throughout 2018 there were 292 cases related to the

ITE Law. This number has doubled compared to the

previous year with a total of 140 cases. Defamation is

the most favorite criminal case with 149 cases.

Followed by hate speech cases with 81 cases. The

case of violating decency was in third place with 71

cases. As many as 35.92 percent of people who

reported cases of the ITE Law were state officials,

including regional heads, agency / department heads,

ministers, and security forces. Lay reporters

accounted for 32.24 percent (Kominfo 2019) The

Articles in the ITE Law that are often used to

prosecute such cases are Article 27 paragraph 3

regarding defamation and/or defamation. Article 28

paragraph (3) juncto Article 45 paragraph (2) of the

ITE Law relating to the spread of SARA-based hatred

then Article 28 paragraph 2 juncto Article 45

paragraph 2 of Law Number 11 Year 2008

concerning Information and Electronic Transactions

(ITE) because it was intentional or without the right

to spread misleading information and article 29

paragraph (1) concerning Extortion and Threats

(Lubis and Maulana, 2010: 13-20).

The problem is the duplication of criminal acts

regulated in the ITE Law is also contained in the

criminal provisions in the Criminal Code (KUHP),

namely Article 156 of the Criminal Code concerning

hatred and contempt for race, country of origin,

religion, place, origin, ancestry, nationality or

position according to the constitutional law with the

threat of imprisonment for 5 years as well as Article

310 of the Criminal Code and Article 311 of the

Criminal Code concerning defamation with the threat

of imprisonment of 5 years (Moeljatno, 2007: 23)

Herein lies the problem where the legal translation is

vulnerable to multiple interpretations. Because the

position of expert witnesses is very influential on the

interpretation of violations of the ITE Law which is

also contained in the Criminal Code (KUHP). This

multi-interpretation article has the potential to be

misused to threaten freedom of expression because it

depends on the opinion of expert witnesses in court.

This condition certainly has the potential to impede

the freedom of expression of citizens regulated in

article 28 of the 1945 Constitution concerning

freedom of opinion.

3.3 Revision of the ITE Law

The birth of the ITE Law cannot be avoided from the

protest movement of social media users throughout

Indonesia. Especially in the defamation article which

invited strong reactions from netizens who felt that

their freedom of opinion on social media was limited

and unsettled by various 'victims' who reported using

ITE Law article 27 paragraph 3. Therefore, detainees

must monitor their own behavior as if they are being

watched. Even though social media users are not

being directly monitored, these controls are

internalized by each individual social media user to

discipline themselves through cyber bodies.

Specifically, there are a number of articles of Law

Number 19 of 2016 concerning Information and

Electronic Transactions (UU ITE), namely 27

paragraph (1) and paragraph (3), article 28 paragraph

(2), and article 29 of the ITE Law (PDF). In addition,

the reporter also ensnared the reported party with

article 156 of the Criminal Code and articles 310-311

of the Criminal Code. The most widely used article is

27 paragraph 3 related to defamation.

Technically there are duplications in the laws that

appear in article 349 paragraph (1) of the Criminal

Code Bill and article 28 paragraph 2 of the ITE Law.

Article 349 paragraph (1) of the Criminal Code Bill

reads:

"Everyone who broadcasts, displays, attaches

writings or pictures, or plays a recording, including

Evaluation of Electronic Information and Transaction in the Perspective of Criminal Enforcement in Indonesia

435

disseminating through information technology

facilities that contain criminal offenses as referred

to in Article 348, with the intention that the contents

of the writing, the image or recording is known or

better known to the public, sentenced to a

maximum imprisonment of five years (..) ".

This is duplicated with Article 28 paragraph 2 of

the ITE Law reads: "Everyone intentionally and

without the right to disseminate information intended

to incite hatred or hostility of certain individuals and

/ or groups of people based on ethnicity, religion,

race and intergroup (SARA) "

Furthermore, this situation also occurred on

December 19, 2016, MUI Tanjungbalai City held a

meeting and decided to request a fatwa from the

North Sumatra Province MUI DP, for blasphemy of

the religion. On January 4, 2018, the MUI Fatwa

Commission of North Sumatra Province produced a

fatwa containing legal provisions, namely the Adhan

that was announced in the Mosque is the Islamic

Sharia which was announced as a sign of entry in

prayer times and/or ordered Muslims to perform

prayers.

This was explained by the Tanjung Balai Sukiman

community leader who explained:

"The delivered by Meliana for the call to prayer

coming from the Al-Maksum Mosque Jalan Karya

Kota Tanjungbalai are considered as blasphemy

against an Islamic religion."

Words This means that in the case of Meliana in

accordance with the rules and regulations the

applicable invitation imposed is a Criminal Code

article which is also contained in the ITE Law until

Meiliana was sentenced to 1 year 5 months in prison.

4 CONCLUSION

The presence of the internet as a form of

technological development in the field of

communication is a matter that is familiar to modern

society in Indonesia. Previously, internet technology

was only used to send electronic messages via email

and chat, but it was also often used to search for

information through browsing. But along with the

times, the internet is able to give birth to a new

network commonly known as social media.

Based on this situation it is concluded that the

policy efforts in the formulation of the ITE Law in the

future must be made for legal certainty. The

importance of setting limits, juridical qualifications

and regarding what is meant by criminal defamation

and what acts are the reasons for justifying a criminal

defamation based on comparative study Ideas for

formulating renewal of criminal acts both in the

future, both in the revision of the Act ITE is expected

to no longer harm community rights. This is where

the role of law as a bridge to cause the principle of

usefulness and justice for the community to protect

the right to freedom of opinion and expression in

terms of delivering fair comments, criticism and

public opinion.

ACKNOWLEDGEMENTS

Thank to the Research Institute of the University of

North Sumatra with the Contract Number: 4167 /

UN5.1.R / PPM / 2019, dated April 1, 2019 for

providing research funding so that this research can

be carried out and published.

REFERENCES

Atmajan, A.P.E., 2014. Kedaulatan negara di ruang maya:

kritik uu ite dalam pemikiran Satipto Rahardjo. Jurnal

Opinio Juris, 16(1).

ABC, 2018. Korban UU ITE merasa hak untuk berbicara

di Indonesia Terancam. Retrieved from

https://www.tempo.co/abc/3173/korban-uu-ite-

merasa-hak-untuk-berbicara-di-indonesia-terancam

Gerinyta, S., 2018. Betapa kecilnya peluang untuk lepas

dari jerat UU ITE. Retrieved from

https://tirto.id/betapa-kecilnya-peluang-untuk-lepas-

dari-jerat-uu-ite-cVUm Retrieved from 2 februari

2019, pukul 21.00 wib.

Gerinyta, S., 2018. Jerat UU ITE banyak dipakai oleh

pejabat negara. Retrieved from https://tirto.id/jerat-uu-

ite-banyak-dipakai-oleh-pejabat-negara-c7sk

Ghulam. S, Hameed. Y.M.Y, Safdar. G, Gilani. S.M. 2014.

The impact of social media on Youth: A case study of

Bahawalpur City. Asian Journal of Social Sciences &

Humanities, 3(4).

Juwenie, 2016. Consumer protection in e-commerce

transactions in Indonesia. Journal of Law: Policy and

Globalization, 47(3), pp. 131 – 137. Retrieved from

www.iiste.org.

Lubis, M., Maulana, F.A., 2010. Information and electronic

transaction law effectiveness (uu-ite) in Indonesia. In

Proceeding 3rd International Conference on ICT4M

2010. Jakarta, December 13 – 14.

Lumbanraja, R., Kalo, S., Ablisar, M., Bariah, C., 2017.

Pertanggungjawaban pidana pelaku penghinaan

melalui layanan pesan singkat atau SMS (short message

service) (Studi putusan: Pengadilan negeri Sumenep

Nomor: 70/Pid.B/2010/PN.SMP, Putusan Pengadilan

Negeri Pati Nomor: 45/Pid.Sus/2013/PN.Pt, Putusan

Pengadilan Negeri Kendal Nomor:

232/Pid.B/2010/PN.Kdl). USU Law Journal, 5(1).

Moeljatno, 2007. Kitab undang-undang hukum pidana,

Bumi Aksara. Jakarta.

ICOSOP 3 2019 - International Conference on Social Political Development (ICOSOP) 3

436

Nugraheni, Y., Anastasia, Y.W., 2017. Social media habit

remaja Surabaya. Jurnal Komunikatif, 1, pp. 17 – 30.

Priyono, F.X.J., 2017, Law enforcement of electrical and

electronic waste smuggling in Batam, Indonesia. Law

Review, 02(1).

Shabnoor, S., Singh, T., 2016. Social media its impact with

positive and negative aspects. International Journal of

Computer Applications Technology and Research,

5(2), pp. 71 - 75, ISSN:- 2319–8656.

Sumarwani, S., 2014. Tinjauan yuridis pemidanaan

cybercrime dalam perpektif hukum pidana positif.

Jurnal Pembaharuan Hukum, I(3).

Winarno, E., Zaki, A.S., 2015. Panduan lengkap

berinternet, PT Elex Media Komputindo. Jakarta.

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