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Risk of GoTo Company's Big Data Monopoly Reviewed from the Anti-
Monopoly Law
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Risk of GoTo Company's Big Data Monopoly Reviewed from the Anti-
Monopoly Law
Abstract (Indonesia)
Received: November 18,
Revised : 2022 Latar Belakang: Konvergensi era digital akibat pengaruh
November 20,
Accepted: 2022 perkembangan globalisasi membawa kesadaran akan nilai
November 22, ekonomi data untuk keperluan bisnis. Kegiatan bisnis yang
2022 dilakukan di era digital cenderung menggunakan data
sebagai bahan kajian riset pasar, termasuk dalam
menentukan kebijakan perusahaan di masa depan. Sebagai
dua perusahaan yang bergerak di pasar digital, Gojek dan
Tokopedia memiliki kontrol yang besar atas ragam data
konsumennya sehingga penguasaan data menjadi faktor
dominan di keduanya.
http://ijsr.internationaljournallabs.com/index.php/ijsr
Valencia Gustin, Helza Nova Lita, Aam Suryamah / JOSR: Journal of Social Research, 1(12),
642-658
Abstract (English)
Results: The results of the study show that at this time there
is no strict supervision and limitation of data control from
the GoTo company and is still included in the gray realm to
be concluded as a monopoly act according to Law Number
5 of 1999.
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Valencia Gustin, Helza Nova Lita, Aam Suryamah / JOSR: Journal of Social Research, 1(12),
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INTRODUCTION
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a value of 6,465 million USD which makes the company ranked first in the retail industry
throughout Southeast Asia (Sorace et al., 1997).
Figure 1.
E-commerce Visitor Count Statistics, Source: Katadata, 2021.
Tokopedia has a record number of visitors that still far exceeds Shopee (see Figure
1). As a result, there is no need to doubt that Tokopedia has far more consumer data records.
The calculation of data mastery also considers data that is included in consumer interactions
in the retail market obtained in the use of its application.
The merger between Gojek and Tokopedia in 2021 made GoTo automatically
dominate a wide variety of industries. The dominance sector is also then accompanied by
mastery of large data, where the data comes from a combination of Gojek data with
Tokopedia. As a result, there is a risk of a data monopoly on the company. These data are
controlled in very large quantities and include every piece of information that is crucial to
its users so it should be present as one of the considerations in monopoly practices. If left
unattended, one of the potential risks can lead to data monopoly practices in the company.
In this case, the Business Competition Supervisory Commission (KPPU) then has a role
and obligation in the field of business competition to ensure that data monopolies that lead
to unfair business competition do not occur in the future (Effendi, 2020).
Research Objectives
This study aims to discuss the answers to solving problems as follows:
1. What is the legal regulation in Indonesia regarding the practice of data monopoly
as a form of unfair business competition?
2. Can the merger between Gojek and Tokopedia that can cause a potential data
monopoly to be justified according to Law Number 5 of 1999 concerning
Monopoly and Unfair Business Competition?
RESEARCH METHODS
The research in this paper is carried out using normative juridical methods, where
research is carried out using sources of research considerations derived from secondary
materials. The research is then carried out by analyzing related materials which will then
be used to answer the burden of questions asked as material for problems to be studied
subsequently (Muchtar, 2015).
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Analysis of research studies is carried out by utilizing literature study sources that
are studied and studied further in the research. These sources are obtained by taking
research materials and conclusions contained in literature materials, both in the form of
books, journals, and official websites, as the main source object of research. In addition,
the study tested an analysis sourced from primary legal materials in the form of various
laws and regulations that regulate provisions related to aspects of the problem under study.
The results of the subsequent discoveries are analyzed in qualitative data, in the form of
descriptive notes and analysis of the findings of sources in the literature found.
Theoretical Review
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for companies, data is often present as an increase in economic value for companies. The
importance of data for business actors in their business ventures is born from the ability of
Big Data to identify consumer behavior and tastes, where companies can better know their
consumers, target consumers in marketing, to know which consumer segments are needed
to be given more or less marketing allocation so that companies can then attract more
consumers and achieve maximum profits. (Malviya & Malmgren, 2018) .
According to the provisions of Article 1 paragraph (2) of Law Number 8 of 1999
concerning Consumer Protection (hereinafter referred to as "Law No. 8/1999"), consumers
are each person who uses (consumes) a good and/or service that exists in society, where
the user is carried out either for the benefit of others, himself, or other living beings, and
the goods and/or services are not traded back (Benuf, Mahmudah, & Priyono, 2019).
Consumers who are related buyers of a company generally also provide related data needed
for the continuity of the company's business operations. The data provided by consumers
can be in the form of non-confidential data to data that is personal and needs to be kept
secret. Personal data itself is data belonging to a person that needs to be stored, treated,
secured the truth about it, and given protection against the confidentiality of the data. In
electronic systems, the protection of personal data is considered a privacy that needs to be
maintained for its rights and honor.
According to the provisions of Article 1 paragraph (3) of Law No. 8/1999, business
actors are business entities and individuals both domiciled and carrying out their business
activities in the economic sector, both the form of legal entities and not, through agreements
held jointly in the territory of the State of Indonesia. A business actor must run his business
based on good faith and always convey honest.
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of the positive legal rules in force in Indonesia, monopolistic practices can lead to unfair
business competition in the market. In Indonesia's positive law constituents, unfair business
competition is further regulated in Law Number 5 of 1999 concerning the Prohibition of
Monopoly Practices and Unfair Business Competition (Law 5/1999).
According to the provisions of Article 1 paragraph (6) of Law No. 5/1999, a
business competition practice is categorized as unfair business competition when in
carrying out the business competition, business actors use methods that are unlawful,
dishonest, or hinder the occurrence of business competition in carrying out production
and/or marketing activities on certain good and/or service. This unfair business competition
can occur for various reasons, one of which is the company's actions, such as merging or
merging which then has the potential to monopolistic practices that are prohibited by law.
This action further has the potential to violate the provisions of Article 12 of Law No.
5/1999, where the regulation regulates related to the prohibition that a business actor is not
allowed to merge to create a joint company on a larger scale with other business actors if
the activity has the potential to lead to monopolistic practices or unhealthy. While still
paying full attention to the survivability of the two companies, the new company was then
established to master the production or marketing control of a good and/or service, as well
as dominate the market. As a result monopoly, practices are potentially occurring (Effendi,
2020).
Broadly speaking, an act of a business actor in trading that is prohibited according
to Law No. 5/1999 is the act of a business actor who in carrying out his business brings
the potential in making a loss to the public interest and unfair business competition. This
also applies to monopolistic practices that have the potential to lead to unfair business
competition in the market. Therefore, the prohibition is then interpreted as a prohibition in
carrying out acts of monopoly practice, which is a practice that occurs over the control of
the market or control over the production of a good and/or service held by one person or
group of business actors.
Data monopoly exists as a term for the classification of monopoly cases that are
exclusively present and become a highlight in the digital business era. In reviewing
violations on the data monopoly basis, a definition of the data itself is needed in the positive
legal position in Indonesia. If reviewing according to the definition contained in the
Government Regulation of the Republic of Indonesia Number 80 of 2019 (PP No. 80/2019)
concerning Trade Through Electronic Systems, the data can be positioned as goods. This
is explained in the provisions of Article 1 paragraph (19) PP No. 80/2019, that (Article 1
paragraph 19 of the Government Regulation of the Republic of Indonesia Number 80 of
2019 concerning Trade Through Electronic Systems, n.d.)
"Digital Goods are any intangible goods in the form of electronic or digital
information including goods that are the result of conversion or transfer or goods that are
originally in electronic form, including but not limited to software, multimedia, or
electronic data."
The definition of goods according to the provisions of Article 1 paragraph (18) PP
No. 80/2019, goods are references used to every object, whether moving or not, as well as
tangible or intangible objects, objects that can be exhausted or not, where the object can be
used, handled, utilized, and traded by consumers and business.
The context of the definition of data as goods as contained in PP No. 80/2019 can
be justified by the current use of data. Data is used as a commodity to evaluate business
development, form business strategies, even as goods that are sold freely on the internet.
There are many cases of data sales in Indonesia, where it explains the economic value that
is present from the data.
As a result of the position of data as an item, in accordance with the provisions of
monopoly as stipulated in the provisions of Article 1 paragraph (2) of Law No. 5/1999,
control over excessive data can lead to monopolistic practices. In the definition of
monopoly practice, there are several indicators contained, including [34]:
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and decide on alleged acts n violations of Law No. 5/1999 (Article 36 of Law Number 5
of 1999 concerning Prohibition of Monopoly Practices and Unfair Business Competition,
n.d.).
In the constituents of positive business competition law in Indonesia, Law No.
5/1999 has provided a series of clear provisions for business actors who are proven to have
monopolized as a form of unfair business competition action. Based on the provisions
contained in Article 48 paragraph (1) of Law No. 5/1999, it is stated that a business actor
who is proven to have violated the provisions of the laws and regulations in the field of
monopoly activities is threatened with a criminal penalty of confinement in place of a
maximum fine of 6 (six) months or a fine with a minimum Rp. 25,000,000,000.00 (twenty-
five billion rupiahs) with a maximum value of Rp. 100,000,000,000.00 (one hundred billion
rupiahs). In addition, the punishment provisions can also be supplemented by additional
criminal provisions as referring to Article 10 of the Criminal Code (KUHP) which is
described as an additional criminal section of Article 9 of Law No. 5/1999. Some of the
additional penalties that may be imposed further consist of the following (Article 49 of
Law No. 5 of 1999 concerning the Prohibition of Monopoly Practices and Unfair Business
Competition, n.d.) :
1. Revocation of business licenses from the business actors concerned;
2. Prohibited from the business actor concerned in occupying the position of
commissioner or director within a drinking period of 2 (two) years and a maximum
of 5 (five years); or
3. Dismissal of certain actions or activities that are considered detrimental to other
parties.
In addition, in the renewal of its legal reforms, the Indonesian government then
further issued Government Regulation of the Republic of Indonesia Number 44 of 2021
(PP No. 44/2021) related to the Implementation of the Prohibition of Monopoly Practices
and Unfair Business Competition. The regulation was formed to be able to monitor
competition in the market so that there is no form of unfair business competition or other
things that are not desirable to happen, such as monopoly practices that cause losses to third
parties or the general public. PP No. 44/2021 is then present as the implementer of the
provisions of Articles 118 and 185 letter b of Law Number 11 of 2020 related to Job
Creation (Law No. 11/2020). Article 118 of Law No. 11/2020 regulates the authority of the
KPPU in imposing administrative sanctions on business actors who violate the provisions
of Law No. 5/1999 (Article 118 of Law Number 11 of 2020 concerning Job Creation, n.d.).
As an implementing regulation of Law No. 11/2020, PP No. 44/2021 also regulates
the criteria for imposing sanctions and fines for business actors who violate the provisions
of Law No/5/2020. This criterion can be used as an illustration of the type of administrative
sanctions that will be imposed on violators for their actions, according to the provisions of
Article 5 paragraph (1) of PP No. 44/2021, administrative sanctions imposed by the KPPU
are carried out for the following considerations (Article 5 paragraph 1 of Government
Regulation Number 44 of 2021 concerning the Implementation of the Prohibition of
Monopoly Practices and Unfair Business Competition, n.d.) :
1. That the sanctions will be imposed depending on the impact or extent of the
violation of the business actor;
2. That the sanctions will be imposed by looking at the ongoing business activities;
and/or
3. That the sanctions will be imposed on clear grounds and considerations.
Therefore, based on the provisions of Article 5 paragraph (1) of PP No. 44/2021, a
sanction to business actors will be imposed following the three existing consideration
criteria. That way administrative sanctions can be imposed lightly or severely depending
on the actions of business actors and their impacts, as well as other factors that can affect
the consideration of the KPPU in determining alleged violations of these business actors.
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obligations to safeguard the data. Therefore, what GoTo does is not an act that is against
the applicable law in Indonesia. In addition, every data collection is carried out honestly
and openly, following the consent of its consumers as stated through the application. This
is like for example Identity Card (KTP) data for verification, phone number data, address,
and other data that is filled in voluntarily. However, GoTo still must protect these data.
Meanwhile, other data related to tastes, hobbies, and needs are data obtained through Big
Data processing on application traffic. As a result, the data is not exclusive and is still not
regulated by law in the Personal Data Protection Law.
A special characteristic arising from the Big Data monopoly is its great risk to
hinder the growth of other business actors to enter and compete. This is caused by the
mastery of large data, causing problems with market competition. A company can
accurately predict the market, and then become the overlord of the market. But at this time,
this situation has not yet fully occurred. At this time GoTo still has many competitors in
each of its sectors, although similar competitors have not yet emerged that master similar
business diversification. For example, in the marketplace field, there are still Lazada and
Shopee who are still competing fiercely, regardless of their defeat. In addition, in terms of
on-demand business, there is still Grab with a similar type of business. Therefore, despite
its wide scope of diversification, the practice is not enough to be said to be a monopoly
practice. But on the one hand, broadly speaking, the impact brought by the GoTo merger
has made it difficult for new players who are still growing to enter the market. This is due
to the control over the digital market that has already been controlled by big players. As a
result, despite the exciting innovations, new players are difficult to develop because their
growth depends on the practices of large players in the Indonesian digital market (Fauzie,
2021).
In Indonesian practice, the KPPU's ban on merger activities will occur when the
merger significantly creates weaknesses in effective market competition and the emergence
of market forces from business actors holding mergers. If this context is viewed in terms
of analysis of the use of Big Data on GoTo, then the question that will need to be answered
is the extent to which Big Data will bring its role to GoTo's progress in market competition
as one of the indicators that have the potential to cause monopoly.
At the time of the GoTo merger, KPPU was recorded as conducting a special
evaluation of the merger. In the results of his evaluation, Guntur Syahputra as Deputy
Chairman of the Business Competition Supervisory Commission (KPPU) stated that the
merger practice from GoTo did not violate the provisions of the Anti-Monopoly Law or
Law No. 5/1999. The result of the decision was born after a thorough evaluation of the
KPPU, where it was stated that there would be no monopolistic practices occurring due to
the absence of a market concentration formed. The existing market between Gojek and
Tokopedia is a multi-set market so the impact of the merger of the two does not have a
significant impact. Even so, it is undeniable that the merger made the income of the two
lead to a significant increase ("KPPU: Gojek and Tokopedia Merger So Goto Does Not
Monopolize - Startup Katadata.co.id," 2022).
Unfortunately, data mastery has not been a special consideration in the process
carried out by KPPU for the evaluation of the GoTo merger. GoTo's mastery of large data
should automatically make every collaboration with the company get information on the
digital market that has a significant impact. Unfortunately, at this time, the problem still
cannot be answered accurately because there is no definite report on the extent to which
the data is used in GoTo's business competition activities. There is no definitive calculation
of the data related to how much data GoTo currently holds, including the complete variation
of each data type. However, because there is no complete report that the control of Big Data
on GoTo brings major obstacles to the market due to its company, the things done by GoTo
cannot be classified as monopolistic actions at this time.
Despite the unclear amount of data available, researchers believe that the use of
large data without these limitations will bring great risks to the market. Data that can
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analyze the market including the tastes of a large number of consumers, will quickly assess
market trends and developments, making the company will be able to put itself in a
favorable position in the competition. As a result, the company and each of its partners in
related cooperation can have an absolute advantage in looking at certain market trends.
CONCLUSION
Suggestion
Based on the results of this study, the authors have some suggestions as follows:
1. For the KPPU to start including supervision of the amount of data as an indicator
of assessment of monopolistic practices or business competition that is not as good
as t.
2. The establishment of special regulations on data is non-crucial or not personal data
but has value in business development so that then there is no control of data that
has the potential to damage market competition.
BIBLIOGRAPHY
A, Fahmi. (2021). GoTo Business Octopus Overshadows Four Gojek and Tokopedia
Business Lina. Retrieved September 24, 2022, from
https://katadata.co.id/yuliawati/digital/60a26e040f57f/gurita-bisnis-goto-menaungi-
empat-lini-usaha-gojek-dan-tokopedia
Aliy, Laynardho Abulkhair, & Susilowati, Indri Fogar. (2019). Juridical Anaslicis Against
Case Decision No. 26/Rev. G/2015/Pn. Wsb Concerning The Limits of Regulating
Criminal Responsibility and Civil Liability towards Bank Mandiri's Responsibility in
Misuse of Bank Customer Data. Novum: Journal of Law, 6(2).
Asshiddiqie, Jimly. (2011). The idea of an Indonesian legal state. Papers presented at the
National Legal Development Planning Dialogue Forum organized by the National
Legal Development Development Agency of the Ministry of Law and.
Benuf, Cornelius, Mahmudah, Siti, & Priyono, Ery Agus. (2019). Legal Protection of
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© 2021 by the authors. Submitted for possible open access publication under the
terms and conditions of the Creative Commons Attribution (CC BY SA)
license (https://creativecommons.org/licenses/by-sa/4.0/).
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