Sonny Zulhuda
By: Sonny Zulhuda
Indonesia slowly emerges to put some regulations in place pertaining to the cyberspace activities. Few laws and regulations now come up that address personal data protection (PDP). In this first post, I would like to highlight some rules of personal data protection law as found in the first Indonesian cyberlaw, i.e. Law on e-Information and e-Transaction.
Law No. 11/2008 (“UU-ITE”)
First is the “Undang-undang Nomor 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik” (popularly known as UU-ITE in Indonesian) or the Law No. 11 Year 2008 on the Electronic Information and Electronic Transaction (“Law No. 11/2008”).
This Law only has one section that addresses the issues of informational privacy or personal data protection, namely section 26. I had written some comments on this provision in my previous blog. In sum, section 26(1) provides for a general rule that consent is required whenever personal data is being electronically “used” (instead of “processed” – see my comments below). Section 26(2) provides that any breach or infringement of section 26(1) can be a basis for remedies.
Article 26 of the Law No. 11/2008 on the Electronic Information and Electronic Transaction (UU-ITE) stipulates that:
(1) Otherwise stipulated by the laws and regulations, the use of any information by means of electronic media relating to someone’s personal data shall be carried out with the approval from the person concerned.
(2) Every person whose privacy right is infringed upon as referred to in clause(1), may file a law-suit [action-added] for the loss incurred based on this Law. (As translated by the Ministry of Communication and Information Technology).
Meanwhile the statutory elucidation of the Act explains that this provision is an acknowledgement of the privacy right protection. It goes on explaining that, the meaning of privacy right includes the following:
- A right to enjoy a private life free from interference;
- A right to communicate with other persons free from spying/surveillance;
- A right to access to information about his private life and private information.
What we can draw from this provision is as follows:
First, that the recognition of the right to privacy as far as this law is concerned is only limited to that of data/informational privacy, i.e. the right of every person to control what kind of information about him should belong to public domain. (Other aspects of privacy rights include right of anonymity, right of solitude and much more).
Second, be that as it may, the right to information privacy here is further restricted to the ‘use’ of such data. This is overwhelmingly restrictive bearing in mind that the international standard of data privacy covers so many dimension including the collection, processing, use, retention and disclosure of personal data. Here, on the other hand, restricts the matter only to the ‘use’ of personal information.
Third, more restriction was put in place that such rule on the use of personal data is only applicable as long as it is a use ‘by means of electronic media’. Therefore, any use of people’s personal data by which are documented not in electronic media, such as the usual paper archives, will not be subject to this law.
Fourth, the law mentions the need to get the approval of a person whose personal data was to be used (by means of electronic media). This is never explained as to how such approval can be obtained. Is it sufficient to have it on the basis of ‘opt-out’ principle, or does it require a more protective ”opt-in’ principle? There is a big gap between the two in terms of requirements, efforts and consequences. The more protective it is (i.e. with ‘opt-in’ principle), the better for the data subjects, i.e. people whose data is being used.
Fifth, with all these exceptions (a ‘data privacy’ in ‘electronic media’ to be ‘used’ with an ‘approval’).. it is found that the legal redress is also not very attractive. It allows civil suit for damages but is silent about criminal penalties. Thus, while compensation might be aimed at, a deterrence could be significantly absent.
Based on my notes above, it is argued therefore, that this Law (UU-ITE) with due respect, is not the best answer for protecting people’s privacy right be it in electronic and conventional media. Nevertheless, this law is perhaps a little solution for a huge problem. Do we require further law?
Amendment by Law No. 19/2016: Right to be Forgotten
Eight years after the enactment, in 2016, this law was amended to introduce more sub-sections were inserted under section 26, which made it to five sub-sections in total. This amendment is popularly known as “The Right to be Forgotten” rule. Section 26(3)
The Law No. 19 Year 2016 on the Amendment to Law No. 11 Year 2008 introduces section 26(3) which says that (I quoted the original words):
“Setiap Penyelenggara Sistem Elektronik wajib menghapus Informasi Elektronik dan/atau Dokumen Elektronik yang tidak relevan yang berada di bawah kendalinya atas permintaan Orang yang bersangkutan berdasarkan penetapan pengadilan.
It says, “A controller of an electronic system must delete an electronic information and/or electronic document under his control which is no longer relevant if that deletion is requested by a related person through a decision of a court.”
So, this is, in other words, a right to be forgotten. A person is given a right to compel an electronic system controller in whose system his personal data is retained, to ensure that such personal data under his control be disposed of. However, two things are required. First, that the personal data is no longer relevant. And, secondly, that such obligation only applies if it is already upheld by a court of law.
In sub-section (4) it says that “Setiap Penyelenggara Sistem Elektronik wajib menyediakan mekanisme penghapusan Informasi Elektronik dan/ atau Dokumen Elektronik yang sudah tidak relevan sesuai dengan ketentuan peraturan perundang-undangan.”
This sub-section requires that for the disposal/deletion of such irrelevant electronic information and/or electronic document, the controller of an electronic system has to provide a specific mechanism that would be prescribed by law. To the best of my knowledge, there is no specific by-law or regulation as yet that prescribes this deletion mechanism to abide by.
Having said that, the additional rule found in Law No. 19/2016 can bring some fresh air that the Parliament has shown “some further interest” on the issue of personal data protection. Also, it seems that they are also trying to catch up with one of the few development on the matter, i.e. pertaining to the right to be forgotten, although it would seem a little “too soon” for the Indonesians. Ideally, we need to be first introduced and educated on the general principles of personal data and its protection, only then we embrace this specific issue later.
As a matter of fact, a right to be forgotten can be dealt with under the principle of data retention. Under such principle, data users must put in place mechanism to dispose of personal data when they are no longer in use. Alternatively, under consent and choice principles, a data user or data controller is obliged to data subjects’ request to delete data if they do not wish such data to be processed any more by the data user/controller.
More comments will come later.
This rule is associated with the concept of “Data Sovereignty” which says that a country shall not lose a control or sovereignty over the processing of personal data pertaining to data subjects from that country. It also imposes that information which has been stored in digital form is subject to the laws of the country in which it is located. Therefore, a control over trans-border data flow is a form of upholding data sovereignty.