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Interpretation of the Law on Personal Data Protection You Need to Know

IF there is the most awaited legislative product, then it is the Personal Data Protection Act (UU PDP).

The ratification of the PDP Law in the DPR RI Plenary Meeting on Tuesday (20/9/2022), became interesting because it coincided with the excitement of cases of spreading personal data which became a trending topic and seized the public’s attention.

However, it should be noted that this legislation was not born immediately because of the frenzy. President Joko Widodo has sent the draft of the PDP Bill to the DPR since two years ago, then it was discussed in full dynamics through six extensions of the trial period.

The PDP Law is believed to be very important and strategic to guard and spur Indonesia’s transformation into Industry 5.0. Currently the data has been transformed into the new oil in an era of massive digital transformation.

This legislation product regulates the protection of personal data codifically in one law in an integrated, comprehensive, and systematic way.

We do not deny that previously there were provisions regarding the protection of personal data, although they were very limited.

This condition of very limited provisions is actually a problem, because it is very inadequate, partial, not to mention scattered in various laws. The content material is also relatively sparse and not comprehensive.

The absence of this codificative-comprehensive law is the forerunner of legal uncertainty and difficulties in its enforcement.

This condition is also not good for the security of personal data of citizens and also for the business and investment world.

A special law and legal certainty

The PDP Law is a product of legislation a special law which is the primary legislative instrument that specifically regulates the protection of personal data. Its very nature a special law making it unstuck by a certain sector or legal regime.

In legal theory and practice, the position of a special law has meaning if there is a regulatory conflict (conflict of law) with other existing laws, then this PDP Law applies.

This is in accordance with the principle, “special law overrides general law”.a special law derogating from a general law).”

In the face of digital transformation and very tough global competition, as well as the very strategic big data factor, for legal certainty, the PDP Institution to be formed, and of course the Law Enforcement Apparatus (APH), must consistently apply this principle.

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The PDP Law is projected, among other things, to answer the reality of the absence of standards and criteria for personal data protection.

The PDP Law also answers the doubts of the business and investment world, when its business activities come into contact with personal data. In other words, this law is the answer to the legal uncertainty.

Legal certainty is an essential element in the rule of law, because philosophically as well as pragmatically one of the goals of law is certainty.

Legal certainty in the form of norms of the PDP Law is increasingly important, especially in countries that are closely related to the Continental European legal system which emphasizes written law, such as Indonesia.

So far, many business actors are worried that they will be deemed to have violated the protection of personal data in their business activities, while detailed norms do not exist. Well, the PDP Law answers all of those doubts.

This is the meaning of a legal certainty, as long as anyone has fulfilled their obligations, avoided prohibitions and met all the mechanisms and standards listed in the PDP Law, then they are free from PDP violations.

Anyone must learn about the principle of legal certainty and of course practice it consistently and with confidence.

Charge material, ADR and arbitration

The content of this law does not only contain orders and prohibitions. It also regulates in detail the types of personal data, rights of data subjects, processing, obligations of data controllers, data processors, data transfer, international cooperation, sanctions, and PDP institutions.

This law also opens up space for dispute resolution through Alternative Dispute Resolution (ADR) and Arbitration mechanisms.

This last point is very important for the business world in order to resolve disputes quickly, efficiently, handled expert, and without fuss.

This dispute resolution model can be an option in addition to litigation adjudication dispute resolution through the courts.

On the other hand, the PDP Law wisely provides restrictions on very personal matters, this Law does not apply to the processing of personal data by individuals in personal or household activities.

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So what is prohibited by this law? Broadly speaking, the prohibition is regulated in articles 65 and 66 of the Law which include:

First, the prohibition of obtaining or collecting personal data that does not belong to him, with the intent to benefit himself or another person, which may result in the loss of the subject of personal data.

Second, the prohibition of disclosing personal data that does not belong to him with the intention of benefiting himself or others which may result in the loss of the subject of personal data.

Third, the prohibition of using personal data that does not belong to him, with the intent to benefit himself or others which may result in the loss of the subject of personal data.

Fourth, the prohibition of creating false personal data or falsifying personal data with the intention of benefiting oneself or others that can cause harm to others.

The last example regarding false personal data is the simplest, when someone illegally usescapture other people’s photos and names, and set them as display picture WA as well as use it to cheat.

In this case, the APH does not need to wait until there is a result of the loss suffered by the victim, because the act of making false personal data is already qualified as a criminal offense.

Extraterritorial jurisdiction and transformative law

The PDP Law is closely related to state sovereignty, territory, and jurisdiction. Digital transformation has become a necessity that has an impact on very intense personal data transfer activities between countries.

For this reason, this Law in article 2 applies the principle of extraterritorial jurisdiction (extraterritorial jurisdiction), which gives jurisdictional rights and authority to the state to apply this law to all legal acts committed outside the territory of the Republic of Indonesia but have an impact within the country.

The choice of applying the extra-territorial jurisdiction model explicitly like this was for the second time made by the Government and the DPR, after previously being implemented in the ITE Law which the author also proposed at that time. The application of this jurisdictional model is an important part of enforcing data sovereignty.

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The progress of this law is none other than, to protect the public and the state from all hacking, abuse, breaches and crimes based on personal data, both from within and outside the country.

This is in line with the application of transformative legal theory that the author is currently developing. The progressive application of extraterritorial jurisdiction and new legal principles, to meet digital transformation, is in line with this transformative legal theory.

The principle of transformative law puts forward that the law not only functions to maintain order, justice, certainty and benefit but also functions as an infrastructure for transformation in various fields.

Based on this principle, law is pragmatically projected and functioned as an instrument to support transformation and not an obstacle to transformation itself.

We must be aware of the adage “If one country wants to rule over another country, then control and control its laws, and let them not move forward because their feet have been bound by the laws they made.”

The PDP Law was born out of national interest. This law, in addition to treading on the philosophy and constitution of the state, also applies general legal principles (general principles of law), and realistically applied international practices in various countries as best practices.

One of the things that really animates the PDP Law is the European Union Data Protection Regulation (General Data Protection Regulation) or GDPR for short.

This multilateral regulation has become guideline PDP legislation in various countries around the world.

The formula for drafting PDP legislation like this makes the PDP Law of our country have a global standard, on par with other countries, including developed countries in terms of data protection and sovereignty.

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