Part two of our client alert series on the New Criminal Code
Outlook of digital information, bribery & corruption and money laundering related crimes in the New Criminal Code
The New Criminal Code became the first piece of legislation passed into Law in 2023 and was promulgated on 2 January as Law No. 1 of 2023. In the next three years, the New Criminal Code will replace the 100-year old criminal code currently in place.
Part one of our client alert series outlined the key features of the New Criminal Code (access here). In this part two of the series, we take a look at how the New Criminal Code changes the landscape of the penal code in the field of digital information, bribery and corruption, and money laundering related crimes. This alert gives an overview of amendments to the provisions of Law No. 11 of 2008 on Electronic Information & Transactions (as amended) (“EIT Law“), Law No. 31 of 1999 on Eradication of Criminal Acts of Corruption (as amended) (“ABC Law“) and Law No. 8 of 2010 on Prevention and Eradication of Criminal Acts of Money Laundering (“AML Law“).
Notable Conceptual Changes
- A step towards unification of general provisions of the penal code. Traditionally, Book 1 of the old criminal code (containing general provisions of the penal code such as exclusion, mitigation and enhancement of punishment, and participation in punishable acts) serves as the principal reference in investigations/prosecutions of criminal offenses under other laws. That role has been gradually diminishing lately as some of these laws begin to depart from the general provisions of the penal code under the old criminal code and apply their own concepts. The New Criminal Code seems to reignite the role of Book 1 of the old code. The New Criminal Code codifies general provisions of the penal code in Book 1 and mandates that the provisions of Book 1 be applied in prosecuting other punishable acts under other laws (including those in the EIT Law, the ABC Law and the AML Law). The New Criminal Code envisions that a new law will be issued to guide how provisions under existing laws, especially those found to be in conflict with Book 1 of the New Criminal Code, are synchronized.
- Extraterritoriality. While the EIT Law, the ABC Law and the AML Law all contain provisions regarding extraterritorial reach of their criminal sanctions, the New Criminal Code contains a different formulation of extraterritoriality (see part one of this series). It remains to be seen if the different rules of extraterritoriality will be synchronized in the future, or how they will intersect and be applied in the prosecution of criminal offense under these laws in the future if all these rules remain in place. The enforceability of extraterritorial reach of the New Criminal Code provisions will also be subject to any similar provisions under applicable international treaties.
- Benchmarking of corporate criminal liability. The concept of corporate criminal liability is not recognized under the old code. It only became popular in the last decade as some legislation (including the EIT Law, the ABC Law and the AML Law) extended the subjects of criminal offense to include corporations that benefit from crimes. The New Criminal Code codifies and reinvents corporate criminal liability provisions in existing laws. The provisions elaborate, among other things, how to determine when a criminal offense is considered a crime discharged by a corporation, in what circumstances a corporation can be held liable for the criminal offense, and the range of sanctions applicable for corporations. The primary sanction imposed on a corporation will be monetary fines, starting at a minimum amount of IDR 200 million (unless stipulated otherwise in other laws) and capped at a maximum amount of IDR 50 billion. This provision could replace similar criminal provisions in other existing laws that are found to be in conflict with the New Criminal Code, such as the AML Law, which provides for maximum fines of IDR 100 billion for corporations.
Changes of Substance
- Formulation of prohibited acts are generally maintained. The New Criminal Code revokes and replaces several provisions under the EIT Law, the ABC Law and the AML Law. But overall, the formulation of digital information, bribery/corruption and money laundering related crimes in the existing laws, and the recent approach of law enforcement agencies in enforcing the criminal provisions, are maintained.
- Prohibited contents in digital platforms are now expanded. The New Criminal Code covers a wider range of punishable acts in relation to information disseminated through digital platforms, essentially related to freedom of speech and illegal acts. It now builds in different provisions that incriminate defamation through digital platforms against the president and vice president, heads of friendly countries or representatives of friendly countries in Indonesia, government or state agencies, and officials on duty. What may be interesting to note is that some of these articles are not considered defamation if they are made for “public interest and self-defense”. It remains to be seen how this exemption will be implemented. The New Criminal Code also prohibits new types of negative digital content, e.g., exposing contraception-related content to children; incitement to commit criminal acts or do something against the general authority with violence; and offers of information, opportunities or means to commit a criminal act.
- Reference to dissemination of negative content through electronic systems is made express. One of the key changes in the New Criminal Code is that it introduces criminal sanctions for anyone that either “disseminates [criminal content] by means of information technology” or “broadcast”, which includes transmitting, distributing and making accessible digital information and documents on a digital platform. The provisions do not provide any clarity on whether this would affect the extent to which owners/operators of platforms over which the information or documents are disseminated could be held liable.
- Criminal sanctions under the ABC Law and the AML Law are partially amended. Even though the New Criminal Code revoked several criminal provisions of the ABC Law and the AML Law, there are no material changes to the spirit and formulation of these criminal provisions. Changes are mostly around the statutory minimum and maximum sanctions. Most of the minimum term of imprisonment and minimum amount of fines are reduced (some by up to 50%), while the maximum term of imprisonment and maximum amount of fines are also increased (some by up to 100%).
Indonesian New Criminal Code
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