First Edition of
ALSA LEGAL NEWSLETTER 2 0 2 2
APRIL 2022
E-Commerce Business in
ASIA
APRIL 2022 | ALSA LEGAL NEWSLETTER
04 About ALSA and ALSA Legal Newsletter 05-08 Greetings from the International Board Importance of Incorporation
The Influence Of E-Commerce During Covid-19 Pandemic In Southeast Asia
Risks of Trademark Infringement
09
Delik Aduan: A Serious Threat To Trademark Protection In Indonesia
10
Trademark Infringement: Risks And Consequences -An Indonesian Perspective
11-12
E-Commerce: Trademark Infringement In The Technology Era
13-14
Copyright Protection Liabilities Liability Of E-Commerce Platforms For Copyright Infringement In Indonesia 15-16
APRIL 2022 | ALSA LEGAL NEWSLETTER
Protection of Consumer Rights and Privacy Consumer Data Breach As A Form Of Violation Of Consumers’ Rights
17
Tokopedia, Shopee And Bukalapak’s Onuses For Selling Counterfeit Goods
18
Consumer Rights And Privacy: Fintech Data Protection In Indonesia
19-20
Regulations And Privacy Concerns On Digital Signature In Vietnam
21
Securing Online Transactions: Biometrics And Vietnam’s Draft Data Protection Policy
22
Polemic Of Covid-19 Vaccination Certificates Business On E-Commerce In Indonesia
23
Myanmar’s Digital Economy Progress During Covid-19
24-25
The Breakthrough Of E-Wallet On E-Commerce Business: Innovation Or Disaster?
26
Covid-19, E-Commerce And Personal Data Protection
27
Transparency in Transaction Process A Paradigm Shift In E-Commerce In The 'New Normal'
28-29
Legal Protection In The Transparency Of The Transaction Process Using E-Commerce In Asia
30-31
Cryptocurrencies Cryptocurrency: How Legal Uncertainty Exists In Asia
32
Cryptocurrency In The Philippines During The Pandemic
33-34
References 35-37
ABOUT ALSA
Asian Law Students Association (ALSA) is an international organization spread across 16 countries in Asia which are Indonesia, Taiwan, Laos, Hong Kong, China, Malaysia, Brunei Darussalam, The Philippines, India, Sri Lanka, Vietnam, Macau, Myanmar, Thailand, South Korea, and Singapore. ALSA also has 3 observers which are Bangladesh, Nepal, and Cambodia. As an organization, ALSA serves to benefit its members through its vision and mission of promoting awareness of justice, focusing on a global vision of Asia, and facilitating the recognition of social responsibilities among law students. Moreover, ALSA has missions based on 4 pillars which are legally skilled, academically committed, internationally minded, and socially responsible. In obtaining the vision and mission of ALSA, the Academic Activities Department through academic publications serves as a place for ALSA Members to contribute their work in legal writing regarding current issues in Asia.
ALSA Legal Newsletter is a compendium of write ups with regard to current legal issues and news within the respective National Chapter’s countries. As local and legal news are usually written in local languages, it is difficult for it to be accessed internationally. ALSA Legal Newsletter will serve as a medium for ALSA Members to be aware of legal issues and news of other National
ABOUT ALSA LEGAL NEWSLETTER
Chapter’s respective countries.
PAGE FOUR| JOURNEY PAGE 04
APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 05
GREETINGS
From ALSA International Board Greetings from the ALSA International,
First and foremost, I wish all ALSA members to be safe and healthy amidst the pandemic situation. On behalf of ALSA International, I am delighted to announce the first issue of the ALSA Legal Newsletter for the Academic 2021/2022. ALSA Legal Newsletter is an opportunity for members of ALSA from different jurisdictions to contribute articles on legal news as well as share information on trending and prominent issues in Asian countries. For the current edition, ALSA focused on the current legal issue of e-Commerce Business in Asia. With the strong support and effort from contributors from respective National Chapters, Executive Editors, the Academic Activity Department members, and any other persons who are involved in the process, I express my sincere gratitude to you. I am confident that through this Legal Newsletter, our members will be enriched with much knowledge and perspectives on the latest legal issues. ALSA, Always Be One! Zay Yar Naing (Zack) President ALSA International 2021/2022
Greetings from ALSA International,
It is my honor to introduce the first issue of the ALSA Legal Newsletter for the 2021/2022 Academic Year. Around Asia, e-commerce is rapidly evolving because of the increased use of online media during the pandemic era and businesses are trying to adapt to these changes. The move toward e-commerce has wider social and economic implications. Therefore, this edition of the legal newsletter addresses the current legal issue of e-Commerce Business in Asia. We have been overwhelmed by the support we have received so far, and I would like to offer my sincere thanks to everyone who has been involved in the launch of ALSA Legal Newsletter Issue I of 2021/2022, particularly our contributors and executive editors, as without their hard work and devotion, the Legal Newsletter cannot be brought to life. Last but not least, I would like to thank all the readers and supporters of the newsletter. ALSA, Always Be One! Khaing Nyein Zin Vice President of Academic Activities ALSA International 2021/2022
APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 06
Editorial Board
ALSA International
Greetings from ALSA International!
It is our pleasure to bring back the first edition of the ALSA Legal Newsletter for the term 2021/2022! Seeing the need for discussion of e-commerce business in Asia, this edition aims to educate and give insight to the readers regarding the theme from a legal perspective. I hope you are entertained and at the same time informed by this ALN. Happy reading! Warm Regards, Aziezul Safwan Zakaria Director of Academic Publication ALSA International 2021/2022
Greetings from ALSA International!
I am pleased to present the first ALSA Legal Newsletter for this term, alongside the Academic Activities Department and the editorial team. We hope the readers will enjoy and gain some valuable insights on the topic at hand. Lastly, I would like to once again extend my gratitude to the contributors, for whom this issue would not have been possible. Best Regards, Iffah Hj Puasa Junior Executive Editor ALSA International 2021/2022
APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 07
Greetings ALSAsians!
ALSA International proudly presents the first edition of the ALSA Legal Newsletter for the term 2021/2022. In this edition, readers will explore varieties of insightful topics regarding the theme “ e-commerce business in Asia'' balancing the news aspect and legal aspect. I believe readers will gain useful knowledge and insights from all of our absorbing articles. Finally, let us appreciate all the authors for their dedicated contributions to this ALN edition. Have fun exploring ALN! Best Regards, Sirisay Vongsamphanh (Kino) Junior Executive Editor ALSA International 2021/2022
Greetings our fellow readers,
It is a very pleasure and a wonderful moment to present the first edition of the ALSA Legal Newsletter and also ready for you to read. Through this ALN 1, we hope every reader may gain more knowledge relating to our topic. We also would like to thank our passionate contributors for making such interesting articles. Finally, I want to say thank you to my fellow Director of Academic Publication and editors for the guidance and for making this publication successful. ALSA Always Be One! Best Regards, Angelle Cing Junior Executive Editor ALSA International 202/2022
APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 08 Greetings from ALSA International,
We would like to proudly present the first edition of the ALSA Legal Newsletter in April 2022. With this year’s theme “E-Commerce Business in Asia”, we hope that ALSA Legal Newsletter 2022 will gain more insights for the readers from the legal perspective and be an inspiration to law students in conducting further research on this topic. And I would like to express my best gratitude to my fellow Creative Media Executive team for making this happen, and to all the Editors and Authors to support the success of this publication. ALSA, Always Be One! Kind Regards, Dimas Arya Wiratamma Creative Media Executive ALSA International 2021/2022
Greetings from ALSA International,
I am honored to present the first edition of ALSA Legal Newsletter 2022. In this edition, I believe the readers will gain insightful knowledge of "E-Commerce Business in Asia". It is my greatest pleasure to work with the Creative Media Executive team and I would like to extend my gratitude to them for their guidance and patience. Finally, I would like to thank each of you for making this publication a success! Best Regards, Beh Xinyi Creative Media Executive ALSA International 2021/2022
Greetings from ALSA International,
I am delighted to present the first edition of the ALSA Legal Newsletter for the term 2021/2022. With our ALN, I believe that the readers will have a better grasp of the E-Commerce business from a legal perspective. Kudos to all the authors, editors, and my fellow Creative Media Executive members. Happy Reading! ALSA Always Be One! Kind Regards, Khoo Yi Teng Creative Media Executive ALSA International 2021/2022
APRIL 2022 | ALSA LEGAL NEWSLETTER
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APRIL 2022 | ALSA LEGAL NEWSLETTER
THE INFLUENCE OF E-COMMERCE DURING COVID-19 PANDEMIC IN SOUTHEAST ASIA
Written by: Thidavanh Sinambounheuang, Laos
"The development of E-Commerce fasilitated consumers around Southeast Asia and created a massive trend for online shopping during COVID-19." In Southeast Asia, electronic commerce, or commonly known as e-commerce, refers to the purchasing and selling of goods and services over the internet in Asian countries. Southeast Asia’s digital retail industry expanded by 85 percent year by year. Southeast Asian e-commerce companies profited greatly from the region’s shopping celebrations earlier this month. While some may argue that the success of e-commerce companies is due to the CoronaVirus Disease 2019 (COVID19) pandemic, the reality is that customers in the region enjoy online purchasing and the options are only becoming better. Even so, during the pandemic, online shopping has become a major trend in Southeast Asia, with local e-commerce companies becoming increasingly popular among consumers and social media platforms playing a significant role in promoting ecommerce platforms to consumers. In fact, according to the SEA eeconomy reported (2021), digital clients account for 8 out of 10 SEA internet users. According to the report, Thai, Malaysian and Vietnamese internet users have done some online shopping. Furthermore, most internet users in the country are using mobile devices to access the internet. Highspeed internet access is easily available in Laos's capital city. In 2012, the Lao government passed an Electronic Transactions Law, and in 2021, an Electronic Commerce Decree, preparing the way for future electronic commerce growth.
Interestingly, Shopee and Lazada remain dominant in most marketplaces in the region. Previously impoverished countries in South Asia are now seeing comparatively faster growth. Consequently, the eCommerce story has been one of instability and dramatically emerging leaders in recent years. Shopee’s e-Commerce marketplace is mostly focusing on mobile devices. "A mobile-first approach that helps attract online consumers who are bypassing PCs and going straight from online buying to mobile shopping." For the best part of a decade, Lazada has dominated Southeast Asian e-commerce and remains a significant force in the region. The e-commerce economy continues to expand, and opportunities abound. The only thing that remains to be seen is how they will become the region's most popular e-commerce platform. Because of its diversity, the ASEAN region stands apart from the rest of the world. While certain e-commerce enterprises have been successful in some countries, they are also at risk of slipping behind their neighbors. As a result, an e-commerce aggregator looked at the performance of the top ecommerce companies in Thailand, Malaysia, Singapore, Indonesia, the Philippines, and Vietnam to see which sites have the most market share and which have been the most successful in encouraging social involvement.
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APRIL 2022 | ALSA LEGAL NEWSLETTER
DELIK ADUAN: A SERIOUS THREAT TO TRADEMARK PROTECTION IN INDONESIA Written by: Ansar Ahmad, Indonesia
The growth of electronic commerce (e-commerce) has resulted in an increasing rate of trademark infringement cases. However, the trademark protection in Indonesia remains flawed, particularly in the criminal realm due to the use of delik aduan. In this context, delik aduan is counterproductive for at least two reasons: trademark infringement harms the state's economy and there is a tendency for the trademark violators to go unreported.
Secondly, due to the economic efficiency concerns, the trademark owners have a proclivity not to report the trademark infringements because the reports themselves will cost more than their benefits. The owner of Joger Bali stated that even there were plenty of copyright infringements of Joger Bali, he preferred not to report them because this kind of effort would waste time and energy. This might also happen to the trademark owners who are reluctant to report because the burden of the cost, time, and energy will outweigh the benefits that they receive. In conclusion, due to the fact that the trademark infringement harms the state's economy and the trademark owners are less likely to file a complaint, the provision of delik aduan in the criminal acts of trademark infringement is counterproductive.
Firstly, trademark infringement harms the economy of the country. Trademarks reduce consumers’ search costs to find a product. Furthermore, if their exclusivities are protected, trademarks allow the market to function more efficiently. Unfortunately, due to the provision of delik aduan, if there is no complaint from the direct victim, the trademark violators cannot be legally prosecuted. There will be an impression that the trademark infringement only harms the owner of the right to the trademark. In fact, both society, particularly the consumers, and the state will suffer. Therefore, there should be no need to use a delik aduan so that anyone can report trademark infringement and the police can actively seek out the trademark violators.
"The trademark owners choose not to report the trademark infringement because delik aduan is being counterproductive."
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TRADEMARK INFRINGEMENT: RISKS AND CONSEQUENCES - AN INDONESIAN PERSPECTIVE Written by: Rasha Fahmi Ubaidi, Indonesia
Throughout recent history, there have been a plethora of trademark infringement disputes. The blossoming of electronic commerce (e-commerce) stimulates the emergence of new businesses and trademarks which consequently increase the probability of infringement disputes due to overlapping trademarks. Tight business competitions could also incite more ill-intentioned attempts to imitate other publicly known trademarks that are used for similar products. In Indonesia, a trademark must be registered through the Directorate General of Intellectual Property Rights to gain legal protection. Indonesia adopts the first file trademark system such as: Law No. 20 of 2016 (Trademark and Geographical Indication Act) which states that the owner of a registered trademark has the exclusive rights to utilize or to license the use of a registered trademark to a third party. If a trademark has similarities or is entirely similar to another registered trademark, the disadvantaged party can pursue legal actions against the other party. Trademark infringement falls within the scope of both civil and criminal law. The consequences of trademark infringement include the following: rejection to register the trademark that has similarities to another registered trademark (Article 21 Law No. 20 of 2016); trademark cancellation (Article 76 Law No. 12 of 2016); and criminal sanctions that include a maximum of 2 billion rupiah fine and 5 years imprisonment (Article 100 Law No. 20 of 2016).
"An example of trademark infringement impacting business and consumer's choice" APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 12
A recent trademark infringement case that garnered a lot of talk from the public involved Ruben Onsu, a popular public figure. Onsu, the owner of a food and beverage business trademarked “Geprek Bensu”, filed a trademark cancellation lawsuit against Benny Sudjono’s “I am Geprek Bensu” trademark. Both their trademarks are registered. Onsu based his cancellation lawsuit on the ground that the “I am Geprek Bensu” mark is entirely similar to his “Geprek Bensu” mark. However, the Geprek Bensu mark owned by Onsu had been declared null and void. The reason is that Sudjono was the first to register the Bensu mark, hence entitled to the exclusive rights of the trademark. While Onsu used his Geprek Bensu trademark for his business, Sudjono lost many customers to Onsu as Onsu’s name was more popular. That shows how trademark infringement could bring significant losses to a business. When a competitor plagiarizes a trademark, consumers can be misled into buying their products instead. Moving forward, the Directorate General of Intellectual Property Rights should be more thorough in conducting the trademark registration process to mitigate the overlap of trademarks and avoid more trademark infringement cases.
APRIL 2022 | ALSA LEGAL NEWSLETTER
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APRIL 2022 | ALSA LEGAL NEWSLETTER
E-COMMERCE: TRADEMARK INFRINGEMENT IN THE TECHNOLOGY ERA Written by: Muhd Fadly Muthalib, Indonesia
The rapid development of technology and information has major implications for all aspects of human life. Currently, nearly everyone utilizes transactions or trades via the internet or what we usually call “e-commerce”, which gives us an easy way of transacting. Especially during a pandemic like today, many would prefer to make transactions via the internet. Consequently, this has an impact on merchants who are also adapting to these changes by utilizing Ecommerce. However, the ease of
In addition to cases of product counterfeiting, passing off has recently become
technology offered does not guarantee
a trend where perpetrators piggyback on the reputation of a brand and are
that
violations
usually perceived to be well-known brands. This is because the use of a well-
committed by some people, such as
known brand reputation by “business actors”, who do not yet have a “great
counterfeiting some goods due to the
reputation”, seeks to profit from that reputation so that it can harm the brand
large market demand that would enable
owner and mislead the public. Passing off is carried out by actors in e-
them many profits, taking advantage of
commerce by including well-known brands on products sold by actors that
those who do not have enough money
actually have nothing to do with the famous brand.
there
will
be
no
to buy the genuine product. Which is why, fake products that are sold online become an option for buyers. Of course, these fake products can not guarantee the quality and safety. Many cases of fake products in e-commerce are due to the absence of strict sanctions from the government
which
regulates
the
responsibility of the container provider for brand counterfeiters, who use the marketplace as a means for them to sell counterfeit products. Because basically, the violation of product counterfeiting circulating
in
e-commerce
responsibility of the marketplace.
is
the
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APRIL 2022 | ALSA LEGAL NEWSLETTER
"Seeking of profit through the product counterfeiting of harming the brand owner and mislead consumers." Actually, passing off has not been specifically
The Indonesian government should act decisively
regulated in the law. However, passing off can be
on any trademark infringement committed by several people,
categorized as stated in Article 100 and Article 21 of Act
either by way of product counterfeiting or by passing off. Also,
Number
and
strict regulations are needed against business actors and
Geographical Indications. There are many related cases
providers of platforms to violate registered trademarks in e-
of passing off in Indonesia, such as the case between the
commerce. So, trademark owners feel safe to trade
Milo and Camilo brands. Nestle as the owner of Milo feels
electronically and also achieve legal certainty.
20
of
2016,
concerning
Brands
that Camilo producers are piggybacking Milo to make a profit. Attaching the name 'Milo' to 'Camilo', it is considered that the two are interrelated products. People who already know Milo will certainly buy Camilo and cause people to think that Milo and Camilo are products from the same manufacturer.
PAGE 15
LIABILITY OF E-COMMERCE PLATFORMS FOR COPYRIGHT INFRINGEMENT IN INDONESIA Written by: Hana Salvia, Indonesia
"The prohibition of illegal content in ECommerce under the protection from Indonesia Government regulation."
As the fourth most populous country, Indonesia has been
Additionally, provisions on trademark and copyright protection
experiencing tremendous growth in buying or selling
can be found under Article 22 of GR 80/2019, prohibiting illegal
goods and services via the internet or Electronic
content in E-Commerce. Illegal content is defined as any illegal
Commerce
strong
or unlawful content under applicable laws and regulations
protections of Intellectual Property such as trademarks
regarding, among others, copyright infringement and other
and copyrights has become more striking as we move
harmful content. Article 22 GR 80/2019 also stipulates that the
fully into the digital age. Many concerns exist because
domestic or foreign E-Commerce platform organizer and the
consumers cannot see or touch a product before
Intermediary Service Organizer shall be held responsible for
purchase and the wait time for product shipping.
the illegal electronic information contents’ legal consequences
Moreover, many online sellers abuse this opportunity by
or impacts.
(E-Commerce).
The
need
for
selling fake goods that violate copyright. Indonesia has offered protection through the
However, this is not applicable if the E-Commerce
Government Regulation No. 80 of 2019 on Electronic
platform organizer quickly removes the electronic link and/or
Commerce (“GR 80/2019”); Minister of Communication
illegal electronic information contents after having knowledge
and Informatics (MOCI) Regulation No. 5 of 2020 on
or awareness of its illegality. In addition, GR 80/2019 also
Electronic System Organizers in the Private Sector; and
regulates safe harbors, which then makes the Intermediary
Ministry of Trade Regulation No. 50 of 2020 concerning
Service Organizers not liable if they act as intermediary parties.
Provisions on Business Licensing, Advertising, Guidance, and Supervision of Businesses Trading Trade through Electronic Systems.
APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 16
Moreover, MOCI Circular Letter No. 5 of 2016 concerning Limitations and Responsibilities of User Generated Content E-Commerce, states that platform organizers must set up reporting/complaint services that allow them to receive complaints about prohibited content, follow up on such complaints about the Copyrights and/or related infringement rights and the content must be deleted or blocked within 14 days after the platform organizer has received a report or complaint.
In addition, platform organizers are obliged to evaluate and monitor the merchants’ activities on their platforms actively. These require the merchants to provide accurate information about the products offered and contractual terms and conditions. Platform organizers also need to ensure that the merchant’s uploaded content is not prohibited by applicable laws and regulations, and must address reports or complaints regarding it.
APRIL 2022 | ALSA LEGAL NEWSLETTER
PAGE 17
CONSUMER DATA BREACH AS A FORM OF VIOLATION OF CONSUMERS' RIGHTS Written by: Rayhan Rajendra Irawan, Indonesia The emergence of the omicron and delta variants of CoronaVirus Disease
"The loss of consumers privacy caused by
Asian
cybercrimes in the growth of consumers
countries makes the surge of online
participation in E-Commerce."
2019
(COVID-19)
amongst
shopping in e-commerce businesses across Asia higher than ever. In Southeast Asia alone, Facebook and Bain & Co. reported that more than 70 million consumers participated in the growth
of
e-commerce
since
the
beginning of the pandemic. This growth of e-commerce users also escalates the value
of
the
Southeast
Asian
e-
commerce market to a whopping $62 billion. The economic growth derived
The 1996 UN Commission on International Trade Law (UNCITRAL) Model
from the surge of e-commerce makes
Law on Electronic Commerce serves as the legal umbrella for prospective
consumers its prominent role. As a
UN countries to impose laws regarding consumers’ data protection and
result, e-commerce uses consumers'
privacy. For example, in Indonesia, the Governmental Regulations No. 80 of
data stored in their database to
2019 regarding Trade in Electronic System has regulated personal data
specifically enhance overall consumers'
protection in e-commerce, as stated in Article 58 and 59. This shows that
experience. However, because of how
with those regulations in mind, e-commerce businesses across Asia, and in
precious
this case, Indonesia, have to mind the security of their consumer's data.
these
data
are,
they
sometimes become the target of various cybercrimes, especially from hacking, that leads to data breaches and identity theft. These types of cybercrimes eventually
lead
to
the
loss
of
consumers' privacy. In a span of 2 years, major ecommerce
such
as
Singaporean
Lazada's RedMart and Indonesian ecommerce such as Tokopedia and Bukalapak have reportedly endured various hacking attacks, resulting in more than 105 million consumers’ data leaked. This data breach shows how vulnerable e-commerce businesses are to hacking, especially those targeting consumer data.
In Indonesia, the Consumers Protection Act of 1999 regulates various forms of consumers’ rights, one of which being the right to safety and protection of using a service. The Government Regulation No. 17 of 2019 also regulates the protection of personal data through its electronic system operator, whereas the operator must protect and maintain the secrecy of the personal data. Therefore, the data breach caused by the lack of personal data security of e-commerce businesses, as an operator, means a violation of consumers' rights. The data breach in e-commerce businesses could be the basis for the government to enforce the aforementioned regulations regarding consumers’ personal data protection. The passing of the Personal Data Bill in Indonesia could also be one way to strengthen and harmonize those regulations and to give stricter sanctions to the e-commerce businesses in the case of data breaches, hence making them more responsible for the protection and security of consumers’ data as one of the fundamental consumers’ rights.
PAGE 18
TOKOPEDIA, SHOPEE AND BUKALAPAK'S ONUSES FOR SELLING COUNTERFEIT GOODS Written by: Muhamad Fardy Laksana Bambang Tutuka, Indonesia
Thursday, Feb 24th 2022, The United States Trade Representative (“USTR”) issued its 2021 notorious market report. It lists 42 marketplace that are involved in selling counterfeit goods, of which 3 of them are considered as Indonesia's giant marketplaces: Tokopedia, Shopee, and Bukalapak. The US Ministry of Trade’s representative, Katherine Tai, utters that the global trade of counterfeit goods ruins innovation and creativity of the labourers around the US and across the world. Objectively, this illicit trade shall harm two subjects, the author’s right to have both moral and economic right and the consumer’s right to receive their goods’ information. Indonesia itself has legitimated the Law Number (“No.”) 28 Year 2014 on Authors’ Right Act and Law Number (“No.”) 8 Year 1999 on Consumer Protection Act.
"42 marketplace are involved in selling counterfeit goods, of which 3 of them are considered as Indonesia's giant marketplaces: Tokopedia, Shopee, and Bukalapak."
Recently, the public are concerned about their rights since they receive the ‘fake’ goods, which mostly comes from cosmetics, garments, and books. In accordance with Consumer Protection Act, Article 8 section E, sellers are prohibited from selling goods which have distinctive specs with the label shown. This implies, counterfeit goods which obviously have at least a few different specs from the label, are prohibited to sell. As a consequence of Article 19, hence all e-commerce businesses such as Tokopedia, Shopee, and Bukalapak have the obligation and onuse to reimburse the amount of goods that consumers lost. Each of them claims to be against this action and plans to impose sanctions towards merchants. As for now, both these marketplaces are still investigating their merchants. Further results shall be reported.
Indonesian Act of Author’s Right defines authors’ right as an exclusive right that is automatically preserved with declarative principle after a creation is reality made. As a result of Article 4, the author has the moral right which permanently adheres to the author and the economic right which allows the author to levy the royalty from the goods. From Article 58, the economic right shall valid up to 70 years after the author’s death whereas from Article 57, the moral right shall valid forever. As for the counterfeit goods, they tend to be ‘replica’ or ‘duplicated’ items that certainly do not carry out any of the author's permission. As a consequence of Article 95, the author shall sue the duplicator, which is the particular merchant on either Tokopedia, Shopee, or Bukalapak through either Alternative Dispute Resolution (“ADR”), Arbitration Institution, or Commercial Court. It is implied also from Article 96, that the author (or testator) is able to sue the penalty equal to the accumulated lost value.
CONSUMER RIGHTS AND PRIVACY : FINTECH DATA PROTECTION IN INDONESIA Written by: Yohannes Maria Vianney Widoputranto, Indonesia Over the last few years, financial technology (fintech) firms have popped up across the world with the promise of offering an alternative to traditional banks. In Indonesia, these firms have marketed themselves as a fast and easier way of acquiring loans, with notable firms like Kredivo and Akulaku. However, these fintech firms pose a serious privacy concern for users, mainly because of the submission of users’ personal details in the use of their services. The personal data that is collected by the fintech firms include National Identification Card, National Identity numbers, addresses, telephone numbers, emails, etc. While on the surface these requirements seem reasonable, because of the nuance of fintech firms, consumers are worried about whether fintech firms can be trusted with their data. This article will succinctly explain the regulations that apply Fintech firms in Indonesia are regulated by the Financial Services Authority (OJK) Regulation number 77/POJK.01/16 which, in article 26, states that “Information Technology-Based Lending and Borrowing Service providers are required to maintain the confidentiality, integrity, and availability of personal data, transaction data, and financial data that they manage from the time the data is obtained until the data is destroyed.” This regulation states that it is the legal duty of the fintech firms to maintain the confidentiality of users’ data. Another implication of that is that firms that do not comply can be legally accountable for their actions byways of administrative sanctions based on the OJK Regulation, namely fines, restrictions on business activities, and revocation of business licenses. These regulations, however, are only applicable when the fintech firms are registered and report to the OJK. One major problem that has arisen in recent years is the rise of illegal fintech firms, such as the case that happened with Arief, when he suddenly got a transfer of IDR 800.000,- which was followed by an email from an online loan company (pinjol) to repay with interest within seven days. The problem is that he never applied for a loan from the company, which turned out to be illegal. Arief’s situation is one of many cases in Indonesia, the rise of illegal fintech firms
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posing a threat to Indonesia’s digital economy.
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APRIL 2022 | ALSA LEGAL NEWSLETTER
The Indonesian Government has set up a Taskforce headed by the OJK to eradicate these illegal fintech firms. The taskforce has up until now blocked 3631 illegal fintech firms. Currently, The Indonesian Parliament is deliberating a Data Protection Bill initiated by the Government, which will grant data owners a full range of rights to control and manage their personal data. Other measures that the Indonesian government should consider implementing is a regulatory sandbox to facilitate the compliance of new technologies with existing regulations, and to create policies similar to the Singaporean Personal Data Protection Commission (PDPC) when it tested and amended Singapore’s PDP Act.
"The provision legal duty of the fintech firms in Indonesia to maintain the confidentiality of users' data under the Financial Services Authority (OJK) regulation."
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APRIL 2022 | ALSA LEGAL NEWSLETTER
REGULATIONS AND PRIVACY CONCERNS ON DIGITAL SIGNATURE IN VIETNAM
Written by: Hoàng Th ị Khánh Hi ề n, Vietnam
"Concernity of data privacy level on digital signature of putting customers at high risk of cybercrime and hacking."
In February 2020, MISA Ltd, a Vietnam-based In recent times, electronic signatures (e-signature) are commonly used with apparent benefits over ink-on-paper traditional ones in maintaining workflow efficiency. E-signatures include different forms such as digital, image, and scanned ones. In Vietnam, individuals and businesses have optimized and maximized using the alternative method while experiencing human contact restrictions. However, there is a concern that the data privacy level does not keep up with the technically progressive changes, putting customers at high risk of cybercrime and hacking.
certificate
authentication
service
provider,
launched a remote signing named E-Sign. As the country's first digital signature model without USB tokens, the software enables users to use digital signatures on various devices and wherever they are. It is a suitable replacement given the limits of using USB tokens on customers' signing opportunities. Nevertheless, only three months later,
Vietnam's
National
Electronic
Authentication Centre (NEAC) suspended the
According to Article 8 of Decree 130/2018/ND-CP of
sales and promotion of the company's product,
Viet Nam, the digital signature is created by the transformation of a
as its existing security system was unlikely to
data message using asymmetric cryptography in which those who
ensure customers' data privacy rights. The
have the data message and a public key of the signatory can
suspension lasts until the company meets the
determine whether i) the transformation is created by a private key
required safety standards. As a further preventive
corresponding to the public one in the same key pair; ii) the
action,
content of data message is of integrity. Vietnamese Law on
No.190/2020
Enterprises 2020 stipulates that digital signatures are as legitimate
providers to follow the requirements for remote
as ink-on-paper ones. It simplifies processes and obtains
signing correctly. Such measures from public
signatures on any documents regardless of constraints like the
authorities are necessary and timing to prevent
absence of the signatory or long distance.
violations. To date, MISA has overcome all its
NEAC
enacted
that
Official
guides
relevant
Dispatch service
drawbacks and thus been granted permission to do business in remote signing. When COVID-19 is still unpredictable, the demand for contactless communication, particularly for e-signature in signing documents, remains high. The example of MISA warns that the public authorities should supervise compliance with security standards more actively. At all costs, data protection is never in exchange for convenience.
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APRIL 2022 | ALSA LEGAL NEWSLETTER
SECURING ONLINE TRANSACTIONS: BIOMETRICS AND VIETNAM'S DRAFT DATA PROTECTION POLICY Written by: Nguyen Thanh An Khuong, Vietnam
"Introduction by Vietnam's Government for the Draft Decree on Personal Data Protection to ensure better data security." In February 2021, Vietnam’s Government released the 2021 Draft Decree on Personal Data Protection - a proposed comprehensive legal framework to ensure ethical personal data usage. Regarding biometrics, Article 2.3 lists it under sensitive personal data rendering it with stricter protection under the Draft. Under Article 20, processing sensitive personal data requires the approval of the Personal Data Protection Committee
and
submission
of
detailed
paperwork such as a risk assessment report. In terms of data processing, provisions on crossborder data transferring, after-death data The thriving e-commerce sector in conjunction with the Corona Virus Disease 2019 (COVID-19) outbreak meant that the diversification and improvement of payment methods was bound to take place. In verifying transactions, biometrics data has been used by payment services providers including both banks and ewallet corporations. As data risk soon became a point of contention, Vietnam’s Government has introduced the Draft Decree on Personal Data Protection to ensure better data security. Biometrics payment, through personal traits such as
handling and the requirement for explicit consent further shield sensitive data from potential abuse. From a business perspective, the proposed policy might impose impractical ethics demands, disrupt companies’ current data analytic system and affect their financial performance. However, such imposition is ultimately proportional to the goal of fostering a safe
environment
for
transactions
using
biometrics.
voice, fingerprint and iris, is often employed to authenticate users and authorize transactions due to its lean mechanism. In Vietnam,
Since 2020, the COVID-19
industry leaders such as MoMo, Moca and VPBank have
pandemic has been driving the upward
incorporated
Character
trajectory of online transactions, combined with
Recognition”) to offer better security in online payment. Despite its
the demand for less interaction, biometrics is
merits, recent biometrics data breach cases have raised
expected to be incorporated even more in
significant concerns. The 2019 incident where an unprecedented
commercial activities. Thus, the legal-ethical
biometric data breach was found in a system called Biostar 2
facet of such sensitive data application must be
employed by banks and other UK authorities affecting
considered not only by businesses but also by
approximately 1 million people. Such cases are a wakeup call for
competent authorities for the promotion of safe
governments to reinforce and reimagine their data protection
and
regulations.
biometrics authentication systems.
fingerprint
and
OCR
(“Optical
secured
online
transactions
using
PAGE 23
POLEMIC OF COVID-19 VACCINATION CERTIFICATES BUSINESS ON E-COMMERCE IN INDONESIA Written by: Patricia Edina Sembiring, Indonesia
The CoronaVirus Disease 2019 (COVID-19) Vaccination Certificate is one of the important pieces of evidence of participation for each individual in carrying out vaccination. This vaccination certificate is becoming a new important identity that must be owned by every citizen in the context of prevention from the virus which has become an epidemic outbreak in the world. Not only as a preventive measure, the existence of a vaccine certificate is used as a requirement for traveling and when entering public places. However, with all the convenience of the technology in this era, the vaccine certificate has become one of the targets for data manipulation which makes it a profitable business tool by reselling it to e-commerce services. This is evidenced by the emergence of cases of blocking vaccine card printing services carried out by the Indonesian Ministry of Trade. According to the observation by the Ministry of Trade, it was found that 83 merchant links offered printing of vaccine certificate cards as well as 137 keywords and 2453 vaccines cards printing products and services.
Therefore, consolidation is needed from various parties, including law enforcement, e-commerce service providers, and public participation to prevent the businesses of fake vaccine certificates by providing equal distribution of education to the public about the importance of getting vaccination for health protection. Moreover, it is possible that education about the COVID-19 vaccination will reduce the rate of buyer offers for the vaccine certificate data manipulation business. Through public education and awareness, the goal of obtaining protection both in the world of technology and health can be achieved.
Of course, the emergence of this case has implications for the violation of the rights of every citizen to obtain selfprotection and respect for the human rights of others as stated in the Indonesian constitution based on Article 28G paragraph (1) and Article 28J paragraph (1). Referring to Article 35 of Law Number 19 of 2016 Amendment to Law Number 11 of 2008 concerning Information and Electronic Transactions, it has strictly prohibited the manipulation of both creation, alteration, deletion of electronic information so that it is considered as if the data is authentic. Therefore, manipulation of data as if someone had been vaccinated by issuing a fake vaccine certificate is an infringement of the law. Moreover, manipulation followed by business in e-commerce is an action considered as a threat to security and public health because it is an act of fraud based on data manipulation.
"Data manipulation of the vaccine certificate targeting profitable business tool by reselling it to e-commerce services. "
PAGE 24
MYANMAR'S DIGITAL ECONOMY PROGRESS DURING COVID-19 Written by: Phoo Ngone Kyaw (Aster), Myanmar
Everything develops at a rapid speed in today’s global evolving digital world. The internet plays a major role in people’s daily lives and provides an easy way of communication. The growing response to social media communication is one of the factors driving the exponential growth of e-commerce businesses in Myanmar. Rather than using traditional techniques, many people choose to do business using e-commerce platforms. E-commerce has increasingly become a key industry in Myanmar during the Corona Virus Disease 2019 (COVID19) pandemic. People are trapped in lockdown and the economy of Myanmar is deteriorating as a result of COVID-19. While more people practice social distancing, they begin to expand their online enterprises due to convenient Internet access. In Myanmar, 85% of all internet traffic is on Facebook, quickly it is becoming a platform where most of the online shopping is performed.1 Even the most well-known e-Commerce companies rely on Facebook for the majority of their sales as it allows consumers and sellers to interact quickly. Several physical shops in Myanmar have launched Facebook pages to reach out to internet customers during the coronavirus outbreak.
In 2018, the Ministry of Commerce (MoC) stated that Myanmar's e-Commerce law is in the process of formulating, and in 2020, the E-Commerce Association of Myanmar (ECAM), led by e-Commerce industry stakeholders, was founded to support the business.2 The main objectives are to promote the sustainable development of e-commerce activities and adequately safeguard the rights and interests of consumers. Myanmar signed the ASEAN eCommerce agreement in 2018 to increase collaboration among member countries and to support businesses, particularly small and medium-sized businesses, in overcoming obstacles and using e-Commerce to promote regional economic growth and social development.
People can quickly buy products online with just a click, and mobile banking services like WavePay and KBZPay are flourishing in Myanmar for financial transactions. We are encountering concerns and issues as the usage of digital payments and e-Commerce grows in Myanmar. It is difficult to control the e-Commerce site and losing tax for the government due to the lack of online business registration and operation law in Myanmar. Additionally, it is challenging for customers to trace back the seller if something goes wrong during their online purchasing process.
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APRIL 2022 | ALSA LEGAL NEWSLETTER
Once the law is finalized, e-commerce firm owners that register wisely under the new framework will benefit in various ways. Consumers will be able to reach further abroad, and transactions will be done securely and legally. The government should also be focused on ensuring that these businesses operate legally under the Myanmar company law and that consumer interests are safeguarded.
"The development of Myanmar's economic progress by expanding online enterprises."
It can be concluded from the above analysis that e-commerce has altered business strategies and made life simpler for people in Myanmar and other countries.3 Although e-commerce is growing in Myanmar, there are still obstacles that these enterprises must overcome in order to compete in such a competitive field. It is possible to succeed, and once these obstacles are solved in the next several years, a big improvement of e-Commerce in Myanmar can be seen.
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APRIL 2022 | ALSA LEGAL NEWSLETTER
THE BREAKTHROUGH OF E-WALLET ON ECOMMERCE BUSINESS : INNOVATION OR DISASTER? Written by: Virginia Divina, Indonesia
Payments using e-wallet are the most frequently used payments by society today. Based on data obtained by Xendit, in 2021, the total growth of e-wallet users in Indonesia reached >300%.During the Corona
Virus
Disease
(COVID-19)
pandemic, e-wallet made it easier for users
to
make
payments
and
transactions while maintaining physical distance. One of the largest e-commerce platforms that provides an e-wallet for its users in Indonesia is PT GoTo Gojek
Based on Law Number 8 of 1999 concerning Consumer
Tokopedia (Gojek) with their e-wallet
Protection, Article 4 provides protection for e-wallet consumers so they
service, namely GoPay. The types of
are entitled to receive indemnity if they experience losses from the
transaction provided also vary, ranging
agreed agreement as stated in Article 19. The said agreement is a
from
bill
boilerplate clause (‘klausula baku’) made unilaterally by e-wallet
e-commerce
business actors before the consumers use their e-wallet platform or
transactions. There are still many problems
commonly known as ‘terms and conditions’. Moreover, e-wallet business
that are often faced when using this e-
on Information and Electronic Transaction (UU ITE) as well as Article 17
wallet. In 2020, there were cases of
paragraph (2) of the UU ITE concerning contractual responsibility and
rampant e-wallet burglary among GoPay
product liability. Implicitly, there is a principle of good faith, so business
users who were integrated with the Gojek
actors must be aware and do not neglect their obligations based on
application. Also, it was found that
terms and conditions.
money
payments,
several
transfer
features,
and
consumers
had
actors must fulfill their responsibilities as regulated in Article 9 of the Law
complaints
These regulations are expected to provide strict supervision for
regarding the amount of balance that did
e-commerce business actors who provide e-wallet services to act
not match the balance it should be,
cautiously in running their business and to give legal certainty for e-
payment transactions that could not be
wallet consumers. The absence of regulations regarding business
made due to system disturbances, and
sanctions for violating boilerplate clauses in e-wallet also needs to be
money transfer problems that often did
the government’s concern so there will be clear sanctions for business
not go to the intended account so they
actors who violate their own agreement.
had to wait a few days for the recovery process. These are the downturns of ewallet consumers that caused the needs for legal regulations to protect the rights of these consumers.
"Consumer protection in the problems experienced in E-Wallet payment trends."
PAGE 27
COVID-19, E-COMMERCE AND PERSONAL DATA PROTECTION Written by: Widya Naomi Sitorus, Indonesia
Currently, technology is not only considered as an option but rather, as a necessity for all citizens. Technology affects all aspects of human life from social, cultural, and economic. In the field of economics, there is a very rampant use of e-commerce especially in Corona Virus Disease 2019 (COVID-19) pandemic times like today. One of the researches from Tempo. Co stated that by 2021 ecommerce users have reached 145.8 million people and is predicted to touch 166.1 million people by 2022.
Since the discovery of the first covid case in March 2, 2020 much has changed where every activity carried out usually offline is currently being done online. The government issued several policies such as Work From Home, The Enactment of Restrictions on Community Activities, and other activities as an effort to break the chain of spreading COVID-19 Therefore, ecommerce has also become one of the solutions to curb the spread One of the reasons for this is because, ecommerce enables entrepreneur to reach all of their consumers and potentially more in a wider scope, and proven e-commerce also holds many promotions such as an end-of-month promotion of providing cash back.
Despite the conveniences offered, John Phillips once said that "Technology makes things faster and more cost-effective, but it's not perfect" and it's true. Data leakage in e-commerce is one proof that technology is imperfect. As with the problems that occurred in Indonesia, in May 2020 the Indonesian Consumer Community sued the Minister of Communication and Informatics along with Tokopedia for the alleged leaking of consumer data with a fantastic number of fifteen million users, and at the time Tokopedia lacked transparency and accountability to their users and seemed to cover up the data leak.
The occurrence of data leakage cases is very unfortunate because consumer data can be used by irresponsible parties such as for illegal money transfers, fraud, and other crimes. The legal position relating to personal data can be found in Article 32 juncto Article 48 Electronic Information and Transaction which states unequivocally Everyone willfully and without rights or against the law in any way alters, adds, reduces, transmits, damages, eliminates, transfers, hides electronic information and/or electronic documents belonging to others or public property. will be punished with a maximum of 8 years in prison and a maximum fine of two billion rupiah. Last but not least, one thing that we must take note is, why is personal data protection so important? Because according to President Joko Widodo he said that "Data is a new type of wealth for this nation, even data is more valuable than oil".
PAGE 28
A PARADIGM SHIFT IN E-COMMERCE: BRUNEI DARUSSALAM IN THE 'NEW NORMAL' Written by: Izzati Barudin, Brunei Darussalam
In today’s era of digital transformation, e-commerce has become an everpopular platform that offers novel opportunities for online businesses. In this time of the pandemic, e-commerce has a greater role than ever in maintaining businesses. Research has even shown a drastic spike in ecommerce activities, as stay-at-home or quarantine orders are being implemented, people grapple with fear and anxiety preferring to shop online from the comfort of their home, there is no denying that the pandemic has shifted traditional consumer behavior. A crucial change in a ‘new normal’. Overview of Brunei Darussalam’s e-commerce industry during the Coronavirus Disease 2019 (COVID-19) pandemic. The Electronic Commerce (e-commerce) industry in Brunei has shown to progress quite well amidst the pandemic. Many small and medium businesses were able to innovate and take positive advantage of the situation, despite the turmoil faced during the early period of the pandemic. All these would not be possible if Brunei had not been quick in taking immediate action and introducing necessary protocols, not forgetting citizens’ cooperation in tackling the situation. The Brunei government has allowed dozens of e-commerce businesses to flourish by establishing innovative policies that widely encompass the scope of regulation over various sectors, such as partially funding private-sector salaries, launching an ideal national e-commerce platform that allows Micro, Small, and Medium Enterprises (MSMEs) to upload and advertise their brands and products. The initiative is substantial in providing an easier and more convenient method that benefits not just businesses but also the public.
PAGE 29 Reports of e-commerce frauds in Brunei Darussalam.
The continuous popularity of e-commerce in the state also gives room for the potential increase in cybercriminals. Recently, there have been several reports of fraudulent cases, one of which involved the largest Islamic bank in the state. An email was sent to the recipient claiming to be from the bank, offering a COVID-19 relief fund to the customer. The email contained a malicious link that on further investigation by experts was able to steal the recipient’s credentials and sensitive information.
Thus, to ensure the security of transaction processes, integrity, and confidentiality of consumers, the public is encouraged to be alert and to always verify the sender’s address. It is also important to denote that Section 416 of the Brunei Penal Code, states that if a person cheats by pretending to be someone, or representing himself as someone other than who he is, for example, a banker, he shall be punished under section 419 with imprisonment that may extend to 7 years with fine.
In
addition,
the
Minister
of
Transport
and
Info-
communications has recently elected The Authority for Infocommunications Technology Industry (AITI) as the Interim Data Officer in designing a new law on Personal Data Protection Order (PDPO) that will cover both commercial and non-commercial law. This is to assist and assure businesses as well as consumers that their personal data is secured and prevent any unauthorized access or misuse of data. The PDPO is estimated to commence by mid-2022, with a hope to catalyze the development of e-commerce businesses in Brunei Darussalam.
"Several reports of fraudulent cases and cybercriminals increased in the continuous popularity e-commerce of Brunei Darussalam."
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APRIL 2022 | ALSA LEGAL NEWSLETTER
LEGAL PROTECTION IN THE TRANSPARENCY OF THE TRANSACTION PROCESS USING ECOMMERCE IN ASIA Written by: Diqa Qothrunnadaa Amanda Nur Sella, Indonesia
The existence of e-commerce platforms that continue to spread sporadically in Asian countries has actually projected how big the role and presence of e-commerce platforms in society is, namely as a social networking tool and a forum for distributing content. The content can be in the form of daily personal activities or social activities to interact which are accessed online. The dynamism and consistency of the e-commerce platform is always adapting over time with a display that continues to be packaged more attractively and easy to use so that it can be accessed by users of various ages. Both of these things are increasingly opening up opportunities or value opportunities for the use of e-commerce platforms which now play not only a role to connect relationships, but also as a forum or distributor in conducting business transactions. Facebook has become a pioneer e-commerce platform in improving its application as a medium for electronic transactions or e-commerce. E-commerce platforms such as Facebook and Twitter already have privacy policies that regulate the use of consumer data and the behavior of other parties, in this case sellers on e-commerce platforms in relation to personal data. However, this policy is still vulnerable to be deviated because the regulation is not yet binding on transaction actors, especially sellers, so that this obligation seems to be only an option to be obeyed so as not to violate the policies set by the e-commerce platform. An example of a case when shopping for goods online, but the goods purchased are not the same as those seen in the photos in the advertisements on display. So, based on article 4 UUPK which states that consumer rights include; the right to choose goods and/or services and to obtain said goods and/or services in accordance with the exchange rate and the promised conditions and guarantees; the right to correct, clear and honest information regarding the conditions and guarantees of goods and/or services; the right to obtain compensation, compensation and/or replacement, if the goods and/or services received are not in accordance with the agreement or not properly; etc. Therefore, according to Article 4 letter h of the UUPK, consumers are entitled to compensation, compensation and/or replacement if the goods and/or services received are not in accordance with the agreement or not as they should be.
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APRIL 2022 | ALSA LEGAL NEWSLETTER
Of course, there needs to be a clear regulation regarding transparency in the transaction process, to what extent users' personal data will be spread, and how to guarantee security for users. Therefore, in order to create optimal protection, legal protection is still needed for consumers buying and selling online through e-commerce platforms. In Asian countries, efforts and strategies to provide legal protection to e-commerce consumers have been comprehensively regulated by the state, especially in Indonesia itself there are several regulations such as Law Number 8 of 1999 concerning Consumer Protection (Consumer Protection Law), Law Number 7 of 2014 concerning Trade (UU Law No. Trade). The existence of these regulations certainly guarantees consumer legal protection and supports the application of the principle of transparency in the process. In essence, it is not enough that regulations related to consumer protection become a forum and legal tool for consumers and business actors. There are still some improvements and additional regulatory substances that need to be added to protect various parties. Given the rapid development of science, we should also be aware of the various possibilities that will harm our interests.
"The existence of Indonesian regulations certainly guarantees consumer legal protection and supports the application of the principle of transparency in the process."
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APRIL 2022 | ALSA LEGAL NEWSLETTER
CRYPTOCURRENCY: HOW LEGAL UNCERTAINTY EXISTS IN ASIA
Written by: Nicholas Aurelius Karosta, Indonesia
Digital payment options are being made widely available in the Asian financial market. Penetration is at such an alarming rate that a recent survey indicated
that
63%
of
payments
conducted in Southeast Asia was conducted
utilizing
contactless
payments. A relatively new form of digital
payment
is
the
usage
of
Cryptocurrency. Cryptocurrency offers gamechanging possibilities, with technology that allows for near-instantaneous and secure
transactions
essentially
anywhere in the world. It’s for these
Apart from payment options, Cryptocurrency’s fluctuation in price
reasons that e-businesses have started
listing has made it an alternative investment instrument, with Cryptocurrency
to adopt Cryptocurrency as another
being viewed as an investment option similar to Gold in India. But unlike other
alternative
Massive
more traditional investment instruments, for instance, the stock exchange in
adaptation has taken place, with El
Indonesia that is heavily regulated to ensure investor protection, several states
Salvador being the first nation to
have shown little to no effort in ensuring the protection of Cryptocurrency
recognize it as legal tender. Yet, just like
investors. In 2019, Indonesia formally recognizes Cryptocurrency as a
a
sword,
“commodity”, giving Indonesians their long-awaited legal certainty. Yet upon
and
review, legal scholars found that the regulation fails to provide sufficient
to
payment.
double-edged
cryptocurrency’s
appeal
technological marvel has also been the
protection and “will only harm bona fide market participants' '.
subject of legal issues and debates. Asian states still do not have
Today’s regulatory framework does not offer adequate legal certainty,
a set of uniform regulations in regard to
let alone protection regarding Cryptocurrency. This is alarming news
the
of
considering the scope of penetration Cryptocurrency has. Lawmakers must
Cryptocurrency. For instance, Japan has
also realize that the global trans-border capabilities of cryptocurrency require
regulated and legalized Cryptocurrency
the synchroneity and mutual cooperation of multiple states. While it is true that
per 2017 under the Payment Service
heavy regulation may hinder innovation but left unregulated, Cryptocurrency
Act, meanwhile China, Malaysia, and
has the potential to cause substantial damage to all parties involved. An
Indonesia
international agreement regarding Cryptocurrency is urgently needed.
usage
and
limitations
have
Cryptocurrency’s
usage
discouraged with
its
regulations. This creates new issues of regionality. A business that operates in Japan is now limited to only the Japanese market as if it conducts transactions elsewhere, for instance in Indonesia, it would be in gross violation of the Currency Act.
"...Lawmakers must also realize that the global trans-border capabilities of cryptocurrency require the synchroneity and mutual cooperation of multiple states.".
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APRIL 2022 | ALSA LEGAL NEWSLETTER
CRYPTOCURRENCY IN THE PHILIPPINES DURING THE PANDEMIC Written by: Allysha C. Mustapha, The Philippines
Cryptocurrency With the advancement of technology, innovations from different aspects of life gradually keep abreast with the current trends. The financing world has recently been taken by storm when cryptocurrency paved its way to the Philippine market, marking its great impact on every household. Cryptocurrency is defined as any form of currency that exists digitally or virtually, and it uses cryptography in securing transactions. It is a digital payment that does not require verification from an actual bank. There are a vast number of cryptocurrencies today that are well known to the general public such as Bitcoin, Ethereum, Litecoin and Ripple. Cryptocurrency can be acquired through a process called mining, which involves complicated mathematical problems in generating coins. Although Bitcoin has been around since 2009, cryptocurrencies and applications of blockchain technology have just begun to gain popularity in financial terms, and more uses of it are to be expected in the future. Cryptocurrency and COVID-19 Effects When the pandemic started in 2020, hindering the daily routine of the people with business ventures closed, jobs brought to their respective homes - the economy took its downfall and dragged everybody along with it. The Philippines was badly affected by the effects of COVID-19, displacing jobs, and pulling down the economy itself. Cryptocurrency has been an opportunity to shed some light to those struggling by offering them ways to earn while at the comfort of their homes. Play to earn online games such as Axie Infinity took off in the Philippines, which turned spiteful living into a lifesaving one.
PAGE 34
Cryptocurrency and its Legal Implications The biggest question of concern would be, “is it safe?” Cryptocurrencies are considered to be hassle-free and the most convenient way to make transactions virtually without carrying any physical money, however the implication of this also leads to it being more vulnerable to hackers. It can be said that cryptocurrency requires two-face-factor authentication and is usually built using blockchain technology, however this does not mean cryptocurrencies are unhackable. It is for this reason that cryptocurrency usage in the Philippines has grown. However, it should be utilized with caution as it is a volatile market that can be used to defraud financially illiterate Filipinos and put one at the position of risk in money laundering cases in the future.
"Cryptocurrencies are considered to be hassle-free and the most convenient way to make transactions virtually without carrying any physical money, however the implication of this also leads to it being more vulnerable to hackers." The Securities and Exchange Commission (SEC), which regulates the licensing of domestic and foreign corporations, has not yet released any rule specifically concerning virtual currencies. Hence, Philippine regulators are faced with a predicament arising from a conflict between, allowing access to financial services through cryptocurrencies and preventing the Philippines from becoming a host of money laundering, terrorism financing and cybercrime.
PAGE 35
References The Influence of E-Commerce During COVID-19 Pandemic in Southeast Asia 1- Laos-Country Commercial Guide, https://www.trade.gov/country-commercial-guides/laosecommerce (Last visited Sept. 17, 2021) 2- TMO Group, Must-know: 10 Largest South East Asia Online Marketplaces in 2022, TMO Group(Nov. 26, 2021) https://www.tmogroup.asia/must-know-southeast-asiaonline-marketplaces/ 3- Shawn Lim, E-commerce in Southeast Asia grows at an exponential rate, The drum (Aug. 31, 2021) https://www.thedrum.com/news/2021/08/31/ecommerce-south-east-asia-grows-exponential-rate Delik Aduan: A Serious Threat To Trademark Protection in Indonesia 1- Zhou Wenting, E-commerce trademark cases rising, China Daily (Apr. 14, 2012, 9:59 AM), https://www.chinadaily.com.cn/bizchina/201204/18/content_15077002.htm. 2- WIPO, World Intellectual Property Report 2013: Brand - Reputation and Image in the Global Marketplace. 81. 2013. 3- Indonesia, Undang-Undang Merek dan Indikasi Geografis, Law No. 20 of 2016 on Trademarks and Geographical Indications, Art. 103 4- Novianti, Trias P. Kurnianingrum, and Sulasi Rongiyati, Perlindungan Merek. 153 (Tommy H. Purwaka, 1st ed. 2017). 5- Wendy and I Ketut Westra, Penerapan Delik Aduan Dalam Pelanggaran Hak Cipta Pada T-Shirt Yang Dikeluarkan Joger Berdasarkan Undang-Undang Nomor 28 Tahun 2014 Tentang Hak Cipta, 8. Kertha Semaya L.J. 45, 53-54, (2020) Trademark Infringement: Risks and Consequences An Indonesian Perspective 1- Indonesia. Undang-Undang Merek dan Indikasi Geografis. UU No. 20 Tahun 2016, LN No. 252 Tahun 2016, TLN No. 5953. 2- Marcellinus Manik, Marthin Simangunsong and Roida Nababan, Analisis Yuridis. Pemakaian Merek yang Memiliki Persamaan pada Pokoknya atau Seluruhnya (Studi Putusan No.57/Pdt. SusHKI/Merek/2019/PN.Niaga), 8. PATIK:Jurnal Hukum. 7-9, 1-10, (2019), (analysing the use of a trademark that has similarities or is entirely similar to another).
E-Commerce: Trademark Infringement in the Technology Era 1- Law number 20 of 2016 concerning Brands and Geographical Indications. 2- Rusman, R. S. (2020, November). Perlindungan Hukum Terhadap Pemegang Hak Merek Dalam Perdagangan Elektronik Di Marketplace (Platform). In National Conference on Law Studies (NCOLS) (Vol. 2, No. 1, pp. 170-181). 3- Puti Chaidir, K. A., Mayana, R. F., & Ramli, T. S. (2020). PERLINDUNGAN HUKUM TERHADAP MEREK TERKENAL (WELL-KNOWN MARK) ATAS PASSING OFF PADA DIGITAL PLATFORM MARKETPLACE. Kertha Semaya : Journal Ilmu Hukum, 8(11), 1688. https://doi.org/10.24843/ks.2020.v08.i11.p03 Consumer Data Breach as a Form of Violation of Consumers’ Rights 1- Jacob, Charmaine. 2021. Southeast Asia has added 70 million online shoppers since the beginning of the pandemic, a report finds. CNBC. https://www.cnbc.com/2021/09/16/southeast-asiaadded-70-million-online-shoppers-since-covidreport.html. 25 February 2022. 2- Guest, Peter. 2021. The hidden winners of the pandemic’s e-commerce boom. Rest of the World. https://restofworld.org/2021/the-hidden-winners-of-thepandemics-e-commerce-boom/. 25 February 2022. 3- Luth Research. 2016. E-Commerce Checklist: How to Use Your Customer Data. Luth Research. https://luthresearch.com/e-commerce-checklist-how-touse-your-customer-data/. 25 February 2022. 4- Malia, Indiana. 2021. Sebelum BPJS Kesehatan, Ini 3 Kasus Kebocoran Data Konsumen E-commerce. IDN Times. https://www.idntimes.com/business/economy/indianam alia/selain-bpjs-kesehatan-ini-3-kasus-kebocoran-datakonsumen-e-commerce/3. 25 February 2022. 5- Rohendi, Acep. 2015. Consumer Protection In The ECommerce: Indonesian Law And International Law Perspective. Ecodemica 3(2): 4. 6- Indonesian Governmental Regulations No. 80 of 2019 Trade in Electronic System. Jakarta. 7- Law of the Republic of Indonesia No. 8 of 1999 Consumers Protection. Jakarta. 8- Indonesian Governmental Regulation No. 71 of 2019 Implementation of Electronic System. Jakarta.
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