Provisions on Personal Data Security for Individuals and Home Businesses Challenged

The preliminary hearing of the judicial review of the Personal Data Protection Law for two cases, Tuesday (10/22/2022). Photo by MKRI/Ilham W. M.

Tuesday, November 22, 2022 | 15:38 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 27 of 2022 on Personal Data Protection (PDP Law) on Tuesday, November 22, 2022, presided over by Constitutional Justices Saldi Isra (panel chair), Suhartoyo, and Daniel Yusmic P. Foekh. The hearing had been scheduled for cases No. 108/PUU-XX/2022 filed by Leonard Siahaan and No. 110/PUU-XX/2022 filed by Dian Leonaro Benny.

In case No. 108/PUU-XX/2022, the Petitioner argued that Article 1 paragraph (4), Article 2 paragraph (2), and Article 19 of the PDP Law were unconstitutional. Article 1 paragraph (4) reads, “Personal Data Controller shall be any individual, public entity, or international organization who act individually or jointly to determine the purpose and control of Personal Data processing.” Article 2 paragraph (2) reads, “This Law shall not apply for Personal Data processing by individuals in personal or household activities.” Article 19 reads, “Personal Data Controller and Personal Data Processor shall be: a. Any individual; b. Public Entity; and c. International Organization.

He argued that the PDP Law had not provided legal protection for personal data users, especially e-commerce home business actors, who are vulnerable to data breaches by hackers when making financial transactions. The advance of information technology allows personal data to be collected and transferred easily without the knowledge of the subject, thus resulting in threats against the subject’s constitutional rights. Personal data, he asserted, is part of human rights that needs to be protected.

“Therefore, provisions on personal data is the manifestation of the recognition and protection of basic rights. As such, the PDP Law has not [provided] protection for the rights of subjects of personal data,” the Petitioner argued.

Protection of Privacy

The Petitioner of case No. 110/PUU-XX/2022 argued that Article 15 paragraph (1) letter a of the PDP Law (“The rights of Personal Data Subject as referred to in Article 8, Article 9, Article 10 paragraph (1), Article 11, and Article 13 paragraph (1) and paragraph (2) are exempted for: a. The interest of national defense and security.”) was against Article 28D paragraph (1) and Article 28E paragraph (1) of the 1945 Constitution, which treats data as part of personal privacy. He believes privacy is a standalone right that should not depend on other rights, but it could be lost if someone publicize private things.

Losses due to violation of privacy are difficult to assess. They may interfere with personal life, so the victim of such a violation deserves compensation. Article 15 paragraph (1) of the PDP Law does not clearly and accurately explain “the interest of national defense and security,” so could potentially lead to multiple interpretations and problems in the future and is used as justification for excluding the rights of subjects of personal data.

“Based on the aforementioned argumentation, the Petitioner appeals to the Court to rule the petition by declaring Article 15 paragraph (1) letter a unconstitutional and not legally binding, or declaring Article 15 paragraph (1) letter a unconstitutional and not legally binding insofar as not be interpreted as “‘The interest of national defense and security’ means any interest related to the efforts to maintain and protect state sovereignty, territorial integrity of the Unitary State of the Republic of Indonesia and the safety of the entire nation from all forms of threats,’” the Petitioner said when reading out the petitum.

Justices’ Advice

In response to case No. 108/PUU-XX/2022, Constitutional Justice Suhartoyo said the Petitioner needed to make the posita consistent with the petition and to add the norms that granted the Constitutional Court authority to adjudicate the a quo case. “Elaborate the articles before [the a quo articles] and connect them to explain their unconstitutionality. Break them down one by one,” he advised the Petitioner for case No. 110/PUU-XX/2022.

Meanwhile, Constitutional Justice Saldi Isra said the Petitioner of case No. 108/PUU-XX/2022 should review relevant provisions on personal data. Before the session was concluded, the Petitioners were informed that they should submit the revised petition by Monday, December 5 at 13:30 WIB to the Registrar’s Office. They will be informed of the schedule for the next hearing at a later date.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/23/2022 09:07 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Tuesday, November 22, 2022 | 15:38 WIB 421