Are phone scams considered ordinary frauds or are they charged under the EIT Law?
DAFTAR ISI
INTISARI JAWABAN
Cellular phones including smartphones are equipment used in long-distance communication using cellular networks and other wireless networks.
Meanwhile, the difference between the criminal offense of fraud in the Criminal Code and the EIT Law is that in the EIT Law, fraud must cause consumer losses in electronic transactions, namely legal actions carried out using computers, computer networks, and/or other electronic media. So, is a phone scam included in it?
Please read the review below for a further explanation.
This article is the second update of the article entitled Criminal Charges for Phone Scammers written by Dimas Hutomo, S.H. and was first published on 28 August 2018, and updated by Bernadetha Aurelia Oktavira, S.H. on Friday, 12 November 2021.
This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.
All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.
Phone Scams, Criminal Code or EIT Law?
There are many types of phone scams, ranging from "asking for credit", or fake news that the family or closest relatives had an accident, to fraud by claiming to be a bank or state official. This is certainly troubling to the public. Victims are often trapped by phone scams and give their personal property to the scammers for free.
Belajar Hukum Secara Online dari Pengajar Berkompeten Dengan Biaya TerjangkauMulai DariRp. 149.000
Before answering your question, you need to know the definition of cellular phones including smartphones are equipment used in communicating over long distances using cellular networks and other wireless networks, except satellite phones.[1]
Next, we will explain one by one related to the fraud article based on the Criminal Code and the EIT Law and its amendments.
Fraud in the Criminal Code
Regarding the crime of fraud (scam), it has been emphasized in the provisions of the previous Criminal Code, which is still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force 3 years from the date of its promulgation,[2] in 2026, as follows.
Article 378 Criminal Code
Article 492 Law 1/2023
Any person who with intent to unlawfully benefit himself or another, either by assuming a false name or a false capacity, or by crafty artifices, or by a web of fictions, induces someone to deliver any property or to negotiate a loan or to annul a debt, shall, being guilty of fraud, be punished by a maximum imprisonment of 4 years
Any Person who intends to unlawfully benefit themselves or another person by using a false name or false position, using deceit or a series of lies, inducing people to hand over Goods, giving a debt, making an acknowledgment of debt, or writing off a receivables, shall be sentenced due to fraud, with imprisonment for a maximum of 4 years or a maximum criminal fine of category V, that is IDR 500 million.[3]
According to R. Soesilo in his book Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal (p. 261), the crime in Article 378 Criminal Code is called "fraud", where the fraudster's job:
to induce a person to give goods, to create a debt or to cancel a debt.
the purpose of the inducement is to benefit oneself or another person unlawfully.
the inducement is by means of:
false name or false circumstances;
a crafty trick (trickery); or
by means of false words.
Fraud in the EIT Law
Furthermore, to answer your question, the penalty for fraud regulated in the EIT Law in Article 28 section (1) reads as any person who intentionally and illegally spreads false and misleading news resulting in consumer losses in electronic transactions, shall be punished with a maximum imprisonment of 6 years and/or a maximum fine of IDR 1 billion.
The thing that distinguishes the crime of fraud in the Criminal Code from the EIT Law is that to be charged under the EIT Law, fraud must cause consumer losses in electronic transactions, namely legal actions carried out using computers, computer networks, and/or other electronic media.[4]
Unfortunately, it does not explain further what is included in other electronic media. Are cell phones included?
Furthermore, the Appendix of the Joint Decree of EIT Law elaborates on the imposition of Article 28 section (1) EIT Law (pp. 16-17):
The criminal offense of Article 28 section (1) EIT Law is not a criminal offense against the act of spreading hoax news in general, but rather spreading hoax news in the context of electronic transactions such as online trading transactions.
This hoax news is sent or uploaded through messaging application services, online broadcasting, websites/social media, marketplaces, advertisements, and/or other transaction services through electronic systems.
The form of electronic transactions can be in the form of an agreement between business actors/sellers and consumers/buyers.
Article 28 section (1) EIT Law cannot be imposed on parties who commit default and/or force majeure.
Because it is a material offense, consumer losses as a result of fake news must be calculated and determined in value.
The definition of "consumer" refers to the Consumer Protection Law, namely consumer is any person who uses goods and/or services available in the community, either for the interests of themselves, families, other persons, or other living organisms and not for trading.[5]
Answering your question, from the Joint Decree of EIT Law above, we can see that the telephone media is not explicitly mentioned, so we are of the opinion that if the actions of the perpetrator of fraud are not included in the elements of the EIT Law article, then the perpetrator of phone scam can still be charged using Article 378 Criminal Code or Article 492 Law 1/2023.
However, as additional information, it does not rule out the possibility that law enforcers can impose multiple articles on a criminal offense that meets the elements of the crime of fraud in Article 378 Criminal Code or Article 492 Law 1/2023 and meets the elements of the criminal offense in Article 28 section (1) EIT Law. That is, if the elements of the criminal offense are fulfilled, law enforcers can use both articles.
Case Example
As an illustration of the application of the fraud, we take an example of a case found in the Decision of the District Court of Masamba Number 185/Pid/Sus/2014/PN Msb. In this decision, the defendant committed fraud by uploading photos of the goods he was going to sell. After that, a victim (prospective buyer) was interested in buying the goods in question. The defendant then continued communication via BlackBerry Messenger (BBM) and convinced the buyer.
The defendant asked the prospective buyer if he was interested in the goods advertised to first transfer all costs associated with the goods to be purchased. Agreeing, the buyer transferred some money to the defendant, and the buyer took a photo of the proof of transfer via ATM, then sent it to the defendant via BBM. The defendant took a photo of the goods that had been neatly wrapped with the name and address of the buyer listed and the photo was sent to the buyer.
The buyers were convinced that the goods they had purchased had been delivered, however in reality the defendant never delivered the goods to the buyers.
In this case, the defendant was charged with Article 45 section (2) jo. Article 28 section (1) EIT Law (currently amended by Article 45A section (1) Law 19/2016).
In its verdict, the panel of judges stated that the defendant was legally and convincingly proven to have committed the crime of "Intentionally and without the right to spread false and misleading news that resulted in consumer losses in electronic transactions" so that the defendant had to serve a prison sentence of 10 months.
Categories of phone calls or SMS that are spam or fraud can be in the form of requests to immediately process certain payments or transactions, requests to transfer money, notifications of winning quizzes or sweepstakes that indicate fraud.
How is the process of reporting phone scams to Kominfo? Here is a summary of the flow:
You send a recording of the conversation or a capture (photo) of the message and the phone number of the scammer and/or message sender, as well as your correctly registered and entitled phone number according to your e-ID Card and Family Card.
After the report is verified, the Kominfo helpdesk officer creates a report ticket into the SMART PPI system and sends a notification message in the form of an e-mail to the relevant telecommunications service provider requesting that the mobile phone number (MSISDN) and/or message sender be blocked.
Furthermore, the telecommunication service provider opens and follows up on the report contained in the SMART PPI system by blocking the mobile phone number (MSISDN) of the caller and/or message sender that is indicated to be fraudulent within 1 x 24 hours.
If the blocking of the mobile phone number (MSISDN) is not related to fraud, the blocking of the mobile phone number (MSISDN) and/or message sender can be opened after there is clarification and/or verification that can be accounted for in accordance with the provisions of laws and regulations.
Enrich your legal research with the latest bilingual legal analysis, as well as the collection of regulatory translations integrated into Hukumonline Pro, click here to learn more.
These are the answers we can provide, we hope you will find them useful.
