Abstract
Media reports on cases of the theft of pre-paid pulses taking place nowadays have created a misunderstanding in terms of the appropriate application of criminal law. In the context of existing legal provisions concerning consumer protection as set forth both under the Consumer Protection Law as well as in part under the Telecommunications Law, law enforcement agencies are leaning towards applying general criminal provisions (theft) which, after a careful observation of the Indonesian Criminal Code, in fact do not extend to corporate criminal acts. This paper purports to explain that the currently occurring cases of the theft of pre-paid pulses should be adequately dealt with by imposing administrative sanctions by the governing and supervisory agencies, both under the Telecommunications Law as well as the Consumer Protection Law. It is proposed that it would be more effective to apply the Consumer Protection Law in such cases, as it contains provisions concerning the threat of alternative criminal punishment in the form of confinement or fines, along with additional sanctions in the form of an order to pay compensation for damages to consumers accompanied by the seizure and the halting of the application system in use by the Operator and/or CP concerned. It is proposed that in administering a proper telecommunications system to the public, the application of the Consumer Protection Law is likely to be less counterproductive as opposed to the application of general criminal provisions, considering that the latter are contradictory to the principles of legal certainty and partnership mandated under the Telecommunications Law itself.
Highlights
News have been spreading in Indonesia recently concerning criminal acts of the theft of pulses, allegedly committed by business actors operating telecommunication networks and services in collaboration with telecommunication service business actors providing content (Content Providers, hereinafter briefly referred to as CP)
Paragraph (2) provides that the Prohibition as intended in paragraph (1) is in accordance with the applicable laws and regulations. Even though these provisions refer back to Law No 5 Year 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business competition which is an ex-post regulation, the consequence of its being mentioned in the Telecommunications Law is that it becomes an ex-ante provision and it is the duty of the administrative authority concerned to exercise supervision
It needs to be observed that, in principle, the contract between ConsumerOperator-Content Provider begins with the contract between the Consumer and the Operator to use their numbers for the purpose of accessing telecommunication services, unless there is an initial agreement directly between the consumer and CP, whereby all contractual commitments created through the operator are derivative agreements
Summary
News have been spreading in Indonesia recently concerning criminal acts of the theft of pulses, allegedly committed by business actors operating telecommunication networks and services (hereinafter referred to as Operators) in collaboration with telecommunication service business actors providing content (Content Providers, hereinafter briefly referred to as CP). The issue of stealing from customers is not a new one, it occurred several years ago, in response to which the Minister for Communication and Information issued Ministerial Regulation No.: 1/Per/M.Kominfo/01/2009 Tahun 2009 concerning the Operation of Premium Message Services and Short Text Messaging to Multiple Destinations (Broadcast), hereinafter referred to as “Premium SMS Ministerial Regulation” It basically provides for the provision of content services by Content Providers. Based on the foregoing, the author is of the view that there is a need for a more comprehensive research and analysis of this issue, by observing all types of legal liabilities under prevailing laws and regulations, including civil, administrative as well as criminal liabilities
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