URGENCY OF IMPLEMENTING ARTICLE 1365 OF THE
CIVIL CODE IN ADDRESSING TORTIOUS CONDUCT IN ELECTRONIC TRANSACTIONS IN
INDONESIA
Ahmad Rizky Siregar1,
Wieke Dewi Suryandari2, Hono Sejati3
Universitas Darul Ulum Islamic Center Sudirman, Semarang, Indonesia
[email protected], [email protected], [email protected]
ABSTRACT
The rapid growth of electronic
transactions has introduced new challenges, particularly concerning tortious
conduct and the legal framework governing these interactions. In an
increasingly digital era, electronic transactions have become a primary medium
for commerce and business interactions, yet issues such as fraud and personal
data violations have become more prevalent. Article 1365 provides a legal basis
for individuals or entities suffering damages to file claims for compensation. This study examines the
urgency of implementing Article 1365 of the Civil Code in addressing tortious
conduct within electronic transactions in Indonesia. The objective is to
analyze the applicability, limitations, and potential reforms needed to adapt
Article 1365 to the digital context. A normative legal research method was
employed, utilizing a statute and conceptual approach. Data were collected by
analyzing legislative texts, legal literature, and case law. Data analysis
involved qualitative content analysis to identify gaps and propose solutions.
The findings reveal that Article 1365 provides a strong foundation for
addressing tortious conduct, but its application in electronic transactions
remains ambiguous, particularly regarding evidence collection and the
definition of harm. This research introduces a novel perspective by emphasizing
the necessity for specific regulations and institutional reforms to enhance
legal certainty and address the unique challenges posed by electronic
transactions. These recommendations aim to protect consumer rights, ensure fair
business practices, and foster trust in Indonesia’s digital economy.
Keywords:
article 1365
of the civil code, electronic transactions, tortious conduct
Corresponding Author: Ahmad Rizky Siregar
E-mail: [email protected]
INTRODUCTION
In recent
years, advancements and the application of information technology in the
economic sector have shown significant development
One example
of the development and application of information technology in the economic
sector is e-commerce, which is commerce between buyers and sellers via the
Internet. E-commerce not only provides convenience for consumers but also
facilitates producers in marketing their products while saving time and costs
However,
while using the Internet for trading transactions offers numerous conveniences,
e-commerce cannot be considered a problem-free system, particularly for
countries needing more regulations regarding e-commerce. In practice, many
cases have arisen that harm consumers due to internet use in e-commerce
transactions. For instance, tortious conduct by business actors against
consumers in online buying and selling transactions has been frequently
reported. An example would be consumers who have paid through Internet banking
to sellers but do not receive the purchased goods or the goods delivered do not
match what was ordered, resulting in losses for the consumers. Such acts
classified as tortious conduct occur frequently. Suppose one party engages in
tortious conduct in an electronic sale and purchase transaction. In that case,
the aggrieved party will face difficulties in seeking compensation for the
violation, as the legal relationship between both parties was not established
directly from the outset
In principle,
the ease of access provided by the internet also brings risks and detrimental
impacts. Article 1365 of the Civil Code regulates the obligation to compensate
for damages caused by faults that harm other parties. Article 1365 stipulates
that every unlawful act causing harm to another obligates the perpetrator
responsible for the wrongdoing to compensate for the resulting damages. The
party not liable based on the agreed terms can be sued by the party that feels
aggrieved to obtain restitution. Therefore, in the context of e-commerce, it is
essential to provide adequate protection to parties engaging in transactions
through the Internet
The impact of
information and communication technology advancement, particularly the Internet,
has accelerated the growth rate of electronic transactions worldwide.
Electronic transactions, encompassing online purchases, electronic agreements,
and digital payments, have become integral to daily life. However, alongside
this growth, various legal issues have also arisen and must be addressed. A significant
issue in electronic transactions is tortious conduct, which can harm one or
more parties. The Indonesian Civil Code, particularly Article 1365, states,
“Every act that violates the law and causes harm to another obliges the person
who causes the harm because of his fault to compensate for the harm,” is
crucial in dealing with tortious conduct. However, questions arise regarding
how effectively Article 1365 of the Civil Code can be applied in electronic
transactions.
Therefore,
this research will discuss the urgency of regulation in Article 1365 of the
Civil Code in addressing tortious conduct in electronic transactions in
Indonesia, the weaknesses concerning regulating electronic transactions based
on Article 1365 of the Civil Code, and the efforts to create legal certainty in
electronic transactions.
The rapid development of electronic transactions in Indonesia has been
accompanied by numerous legal challenges, particularly regarding consumer
protection and accountability for tortious conduct. A notable example is the
rise in online fraud and data breach cases. For instance, recent reports
highlight incidents where consumers' data were sold on dark web platforms after
engaging in electronic transactions, causing financial and emotional harm.
Similarly, disputes often arise when consumers fail to receive goods or
services as promised, with limited recourse due to the ambiguity in legal
frameworks. These cases demonstrate the urgent need for clear and comprehensive
regulations, particularly concerning the application of Article 1365 of the
Civil Code to digital interactions. By addressing these issues, this research
seeks to provide a foundation for improved legal certainty, upholding the
rights of all parties involved in electronic transactions and fostering trust
in Indonesia's growing digital economy.
METHOD
This research
employs a qualitative approach, focusing on the normative juridical method. The
qualitative nature of the study emphasizes an in-depth analysis of legal norms
and their application in addressing tortious conduct in electronic
transactions. This method aims to analyze the applicable legal rules and how
these rules are implemented or interpreted within a particular regulation. The
primary sources in normative legal research are legislation and other legal
literature. This approach is particularly relevant in exploring theoretical and
conceptual legal issues, such as the urgency of regulation in Article 1365 of
the Civil Code in addressing tortious conduct in electronic transactions in
Indonesia, the weaknesses concerning electronic transaction regulations based
on Article 1365 of the Civil Code, and the efforts to create legal certainty
regarding tortious conduct in electronic transactions. One of the approaches
used in this method is the statute and conceptual approaches
RESULT
AND DISCUSSION
Urgency of Regulation in Article 1365 of the Civil
Code in Addressing Tortious Conduct in Electronic Transactions in Indonesia
Tortious
conduct begins with an action taken by the perpetrator. Generally, it can be
accepted that the action includes both active acts (doing something) and
passive acts (not doing something). For example, a perpetrator fails to fulfil
his legal obligations to act, even though he has such obligations determined by
the applicable law (where the obligation can also stem from a contract).
Therefore, tortious conduct does not involve the elements of “approval or
agreement” or “permitted cause” elements found in contractual agreements.
Tortious conduct, according to the provisions of Article 1365 of the Civil
Code, refers to actions that unlawfully cause harm to others, where the person
responsible for the action is obliged to compensate for the damage caused.
Tortious conduct is considered to occur when the perpetrator takes actions that
are anticipated to violate laws, infringe upon the rights of others, fail to
fulfil legal obligations it possesses, violate ethical norms and public order,
or breach norms of decency in society, both against oneself and others.
However, to hold an action accountable as tortious conduct, it is necessary to
consider the element of fault present in the action
The criteria
of tortious conduct encompass two main concepts, namely “acts” and “against the
law.” These two concepts are interconnected. Their connectivity can be
understood through two approaches. First, through linguistic interpretation,
where “against the law” describes the nature of an “act,” thus forming the term
“tortious act.” Second, through legal interpretation, which is divided into
narrow and wide meanings. In the narrow sense, tortious conduct only includes
violations of another's rights or obligations of the perpetrator that
contravene legal provisions or laws. This opinion developed before the Hage
Road ruling of 1919.
Meanwhile, in
a broad sense, tortious conduct also encompasses violations of ethical norms
and propriety applicable in society, such as against others and their property.
This opinion emerged after the application of the Hage Road ruling in 1919. The
prerequisites for tortious conduct encompass two main concepts: “act” and
“against the law.” Both ideas are interrelated. Their interconnection can be
understood through two approaches. First, through linguistic interpretation,
where “against the law” explains the nature of an “act,” thus forming the term
“tortious act.”
Fault refers
to actions conducted intentionally or due to negligence in carrying out or
avoiding an act that contravenes the law (onrechtmatige daad). Under
civil law, a person is considered guilty if it is regrettable that he has
either committed or failed to prevent an act that should have been prevented. Actions
that ought to be evaluated depend on the potential to predict the consequences.
This estimation must be assessed objectively, meaning that an average acting
human should be able to anticipate actions that ought to be taken or avoided in
specific situations. Fault is an action performed purposefully or through
negligence in executing or avoiding an act contravening the law (onrechtmatige
daad). Under civil law, a person can be declared guilty if it can be
regrettably said that he performed or failed to avoid actions that should have
been prevented. The assessment of actions that ought to be undertaken or
avoided is based on whether the consequences can be predicted. This
consideration is conducted objectively, referring to the standard of human
behavior in acting normally, which is expected to be able to anticipate what
actions or omissions ought to be taken in particular conditions.
In Article
1365 of the Civil Code, the causal relationship is evident in the phrase “acts
that cause harm due to their fault,” indicating that the harm arose from an
act, or in other words, the harm is a consequence of a particular action. The
main problem is whether the harm is caused by the act and to what extent this
can be proven. If there is a causal relationship (causality) between the harm
and the act, it can be concluded that the harm results from the action taken.
However, this view needs to be considered to not conflict with the principles
of causality in natural law, which states that an event involves several interrelated
processes or factors. This causal relationship consists of several causes that
play a prerequisite role in the event so that the harm may not arise from a
single act but from several related conditions. The theory put forth by Von
Buri supports this idea, stating that every condition required for the
occurrence of an outcome can be regarded as a cause. In other words, if one of
these conditions is not fulfilled, that outcome will not occur; each condition
here, as a conditio sine qua non, serves as a cause of the arising
result.
Evidence in
law is the process of presenting legally valid items of proof to the judge
dealing with a particular case to provide certainty and confidence regarding
the integrity of the event alleged by the contesting parties. This evidentiary
process is crucial, mainly because the growth of electronic information is yet
to be fully accommodated within the Indonesian procedural legal system and is
vulnerable to forgery and rapid dissemination within seconds. Thus far, Indonesia's
evidentiary system in civil law still refers to the Civil Code (KUHPerdata),
particularly in Articles 1865 to 1945. Meanwhile, for the Indigenous population
in Java and Madura, the regulation regarding evidence is stated in the Herzine
Indonesische Reglement (HIR), specifically Articles 162 to 165, Article 167,
and Articles 169 to 177. Outside Java and Madura, evidence regulations for the
same group are governed under the Rechtreglement Voor de Buitengewasten (RBg)
from Articles 282 to 314.
In the HIR
system for civil proceedings, judges are bound by legally valid evidence,
meaning decisions can only be reached based on legally valid evidence. Sudikno
Mertokusumo categorizes evidence into oral, documentary, and material evidence.
Oral evidence consists of statements given by a person in court. In contrast,
documentary evidence encompasses letters or written evidence, and material
evidence involves evidence in the form of objects besides documents. The types
of evidence according to Article 1866 KUHPerdata include:
1.
Written Evidence or Document Proof. According to
Sudikno Mertokusumo, written evidence contains characters intended to express
someone's thoughts or feelings, commonly called "written evidence" or
an act. Its provisions are regulated in Articles 138 and 165-176 HIR, Articles
285-305 RBg, Articles 1867-1894 KUHPerdata, Articles 138-147 Rv, and Ordinance
No. 29 of 1867. Written evidence is classified into:
a.
Authentic Acts are regulated in Article 1868 of the
Civil Code as acts made by the law by or before an authorized public official.
Acts drafted and created per the legal regulations and in front of a public
official with official authority. This act possesses a more muscular
evidentiary strength than underhand acts because it is based on a formal
process guaranteed by law. The authorized public officials responsible for
making authentic acts, such as notaries, are accountable for ensuring that the
document has been created lawfully and according to applicable legal procedures
and thus can be used as a substantial piece of evidence in trials or other
administrative processes.
b.
Underhand Acts: Established in Article 1874
KUHPerdata and Article 286 RBg as documents not prepared by or before a public
official and signed by individuals personally. This act is signed personally by
one or all parties involved, signifying their agreement without stringent
formalities. Although underhand acts do not possess the same evidentiary
strength as authentic acts, they still hold legal value. They can be used as
evidence, provided they meet specific criteria, such as clarity of content and
authenticity of signatures. In practice, this act is often used for agreements not
requiring notarization, such as borrowing agreements, cooperation contracts, or
other private transaction documents.
c.
Unilateral Act or Acknowledgment of Debt: Article
1878 KUHPerdata and Article 291 RBg contains a debt acknowledgment made and
signed by the obligor himself. This legal document contains statements
acknowledging debts made and signed personally by the obligor. In this act, the
debtor acknowledges his obligation to pay a certain sum of money or deliver
objects of value, with a writing performed entirely in the hand of the signer.
This document must encompass clear information regarding the debt amount and
other pertinent terms. Although it does not officially involve public
officials, this unilateral acknowledgment still holds legal weight as evidence
of debt. Should a dispute arise regarding this debt, this act can serve as
initial evidence, albeit insufficient, when faced with objections or rebuttals
from other involved parties.
2.
Witness Evidence is regulated in Articles 139-152
and 162-172 HIR, Articles 165-179 and 306-309 RBg, and Articles 1895 and
1902-1908 KUHPerdata. A witness may be used when written evidence is
unavailable or does not sufficiently meet evidentiary criteria. However,
several matters, such as prenuptial agreements and insurance, must be proven
with specific written proof. Thus, witness testimony is an alternative to
strengthen a party's arguments or claims. It is essential to note some types of
agreements, such as prenuptial and insurance agreements, can only be validated
through specific written evidence. Therefore, it is crucial for the parties
involved to have valid documentation so that their rights and obligations can
be upheld legally.
3.
Presumptive Evidence regulated in Article 173
HIR/Article 310 RBg and Articles 1915-1922 KUHPerdata are inferences drawn by
the judge or by law from known facts to demonstrate unknown facts. There are
two types of presumption: legal (legal conjecture) and factual (factual
conjecture). Presumptive evidence is regulated in Article 173 HIR/Article 310
RBg and Articles 1915-1922 KUHPerdata; these are inferences drawn by the judge
or by law from known facts to establish unknown facts. There are two types of
presumption: legal (legal conjecture) and factual (factual conjecture).
4.
Acknowledgment Evidence is governed by Articles
174-176 HIR, Articles 311-313 RBg, and Articles 1923-1928 KUHPerdata, and
acknowledgment may occur in front of a judge or outside of proceedings. This
acknowledgment can occur in front of a judge during court proceedings or
outside of them, and both will have significant evidentiary weight.
Acknowledgment before a judge is regarded as official acknowledgment and
carries greater legal weight. Conversely, an acknowledgment outside the
courtroom can also be accepted as evidence, although additional verification
may be needed to demonstrate its authenticity. Generally, acknowledgment is a
statement expressed by the parties involved concerning specific facts that may
impact the case's outcome, thus playing a crucial role in supporting each
party's legal arguments.
5.
Oath Evidence: the provisions regarding the oath are
found in Articles 155-158 and 177 HIR, Articles 182-185 and 314 RBg, and
Articles 1829-1945 KUHPerdata. In the Indonesian language dictionary, an oath
is interpreted as an official statement ratified in the name of God or
something sacred. Oaths are divided into three types: conclusive oath,
supplementary oath, and estimative oath. An oath is a formal declaration made
swearing on the name of God or a sacred entity, which expresses the seriousness
and sincerity of the party taking the oath. Oaths are classified into three
types: conclusive oath, serving to determine a matter; supplementary oath, used
to augment the existing evidence; and estimative oath, intended to appraise or
measure the truth of specific facts. These three types of oaths play a
significant role in the evidentiary process, adding further strength to the
arguments made by the parties swearing in court and assisting judges in
determining the truth of the disputed circumstances.
6.
Additional Evidence: Additional evidence in legal
proceedings includes on-site inspections (descente) governed by Articles 153
HIR/180 RBg and expert witness testimony governed by Articles 154 HIR/181 RBg,
which serve to provide technical or specific explanations required to
understand certain aspects of the ongoing case. Expert witnesses are presented
to offer professional opinions based on their expertise and experience, aiding
judges in making more accurate and fact-based decisions. Thus, this additional
evidence plays a crucial role in strengthening the evidentiary process and
supporting justice in every case handled in court.
Article 1365 of the Civil Code serves as a significant
legal basis for individuals or entities that feel aggrieved due to tortious
conduct. This article emphasizes that anyone committing acts violating the law and
causing harm to others is obliged to compensate for the damages incurred. In
electronic transactions, Article 1365 provides a solid legal foundation for
filing compensation claims, especially when there are consumer rights
violations, personal data misuse, or transactions that do not comply with
applicable regulations. The application of Article 1365 in electronic
transactions encompasses several essential elements. First, there is the
obligation to prove the existence of tortious acts, which in this case can
include acts of fraud, breach of contract, or misuse of information. Second,
the harmed party must show that this conduct caused actual harm. This
establishes a unique challenge in electronic transactions, where evidence and
data are often difficult to trace and identify. Despite this, Article 1365
provides a means for the aggrieved party to seek restitution, provided they can
present sufficient evidence to support their claim. The effectiveness of
Article 1365 in protecting parties who feel aggrieved in electronic
transactions can be observed from several aspects
Weaknesses concerning the Regulation of Electronic
Transactions Based on Article 1365 of the Civil Code and Efforts to Create
Legal Certainty regarding Tortious Conduct in Electronic Transactions.
The need for more understanding of the law among
individuals and business actors involved in electronic transactions is a
significant issue that hampers enforcing their rights and obligations
Legal uncertainty represents a primary challenge in
implementing Article 1365 of the Civil Code in electronic transactions
For instance, in cases of personal data breaches, it
is unclear how to establish the causal relationship between the violation and
the harm individuals suffer. Lacking clear guidelines, the aggrieved
individuals might struggle to navigate the legal process, resulting in
dissatisfaction with the outcomes obtained. This uncertainty also places a
burden on judges when making decisions. In many cases, judges might have to
refer to general principles of existing law, but there needs to be clear rules
about applying articles related to the digital realm. This can lead to
disparate interpretations, culminating in inconsistent decisions across
different courts. This uncertainty may ultimately undermine public trust in the
legal system and create instability in the electronic transaction environment.
Electronic transactions have become increasingly
common in the digital age, yet collecting evidence related to these
transactions often faces significant challenges. One of the main challenges is
accessing and gathering necessary evidence to support compensation claims. Many
relevant pieces of evidence, such as transaction data, communication records,
and user information, are often stored on servers out of reach of national law.
This poses hurdles for parties feeling aggrieved in obtaining the access needed
to prove their claims. The inability to access such evidence may result in
injustice against the harmed party. For instance, in online fraud involving
servers located overseas, the aggrieved party might lack the means to take
legal action against the perpetrator. When the service providers or platforms
are unwilling to furnish the required information, the aggrieved parties may
face challenges in evidencing their losses due to tortious conduct. Their
compensation claims may be dismissed without solid evidence, even if they are
entitled to compensation.
In addressing the challenges posed by the growing
trend of electronic transactions, it is essential to formulate specific
regulations governing aspects of these transactions. These regulations should
be specific and comprehensive, encompassing clear definitions, rights, and
obligations of each party involved in the transaction. With detailed regulatory
frameworks, business actors and consumers will better understand what is
expected of them in each electronic transaction. One primary focus of this
regulation should be the protection of personal data. Providing adequate
protection for individuals' personal data is crucial in the digital era, where
personal information can be easily accessed and exploited.
Regulations must govern personal data collection, use,
and processing, including individuals' consent before their data is used.
Strict penalties must be applied to parties violating data protection
provisions to encourage compliance and enhance user safety. Regulations should
also encompass efficient dispute resolution mechanisms for electronic
transactions. In case of disputes between the parties involved, it is crucial
to have clear procedures for resolving such conflicts, whether through
mediation, arbitration, or litigation processes. With structured procedures,
parties will find it easier to seek justice without going through lengthy and
complex legal processes.
Strengthening legal institutions is crucial in using
challenges posed by electronic transactions. Enhancing the capacity of law
enforcement agencies and courts will ensure they understand the dynamics and
complexities arising in the digital world. Training in information technology
and cyber law is essential to this process. With appropriate training, law
enforcement officers and judges can better understand electronic elements cases,
enabling them to make more informed and factual decisions. Education and training
provided to law enforcement should focus on legal and technical aspects of
technology used in electronic transactions. This includes understanding how
digital platforms work, how data is collected and stored, and the techniques
used in online fraud. With deeper knowledge, law enforcement agencies can more
effectively investigate and prosecute legal violations occurring in the digital
realm. Strengthening legal institutions should also involve providing adequate
resources, such as access to necessary technological tools for investigations
and processing electronic evidence. This will allow law enforcement to work
more efficiently and effectively in managing cases related to electronic
transactions.
For instance, using data analysis software to trace
digital footprints or investigate patterns of suspicious transactions can
greatly aid in uncovering illegal practices. The enhancement of legal
institutions should also be associated with interagency cooperation at the
national and international levels
CONCLUSION
Tortious conduct is a fundamental concept in civil law
that underscores the responsibility of individuals or entities to compensate
for harm caused to others through unlawful actions, either actively or
passively. Based on Article 1365 of the Civil Code, perpetrators of tortious
conduct are obliged to compensate for the damages resulting from their actions,
and proving this entails fulfilling certain requirements, including the
presence of fault elements and a causal relationship between the conduct and
the harm experienced. Given the continuously evolving electronic transactions, implementing
Article 1365 becomes crucial in protecting consumer rights and providing a
legal mechanism for those aggrieved by unlawful acts, despite the challenges in
proving harm within a digital context. Therefore, there is a need for more
specific regulations and a better understanding of rights and obligations in
electronic transactions so that legal protection can be effectively implemented
while simultaneously encouraging more transparent and responsible business
practices.
Regarding legal challenges in electronic transactions,
the lack of legal understanding among individuals and business actors, legal
uncertainty in the application of the Civil Code, and difficulties in evidence
gathering present significant issues impeding the enforcement of their rights
and obligations in the digital domain. To resolve these issues, specific and
comprehensive regulations are required that not only protect the rights and
obligations of each party but also provide protection for personal data and
efficient dispute resolution mechanisms. Strengthening legal institutions
through training and providing adequate resources is essential to enhance their
capacity to confront the complexities of cases involving electronic elements.
Additionally, cooperation among agencies at both national and international
levels is key to addressing increasingly rampant cross-border violations. With
these measures, public confidence in the legal system and electronic
transactions can be restored, creating a safer and more transparent environment
for all parties involved.
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