AMANAH：在開放式銀行中使用消費者個人數據和信息的原則（21頁）.pdf

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1、Journal of Central Banking Law and Institutions, Vol. 1 No. 1, 2022, pp. 119 - 140e-ISSN: 2809-9885DOI: 10.21098/jcli.v1i1.2THE PRINCIPLE OF AMANAH IN THE UTILISATION OF CONSUMERS PERSONAL DATA AND INFORMATION IN OPEN BANKINGTrisadini Prasastinah UsantiFaculty of Law, Universitas Airlangga, Indonesi

2、atrisandinifh.unair.ac.idSubmitted: 8 November 2021 - Last revised: 8 December 2021 - Accepted: 5 January 2022Banks are generally prohibited in any possible way from providing customers data or information to third parties unless there is a written consent from the customer, or it is required by law

3、s or regulations. Open banking allows banks to obtain customer financial data and information and forward them to third parties to accelerate a digital transformation in banking. The existence of the customers consent resulted in the banks legal action providing customer data and information to a th

4、ird party is not considered as a violation to the principle of confidentiality. However, the provision of customer data by banks to third parties must be based on the fiduciary principle, prudential principle, and principle of amanah, since the misuse of customers data can lead to administrative san

5、ctions, criminal sanctions, and civil liability. Keyword: Amanah, Data, Consumer, Open BankingAbstractI. INTRODUCTION Banking is one of the financial services businesses that plays a strategic role in supporting the implementation of national development in the context of increasing equity, economic

6、 growth, and national stability for the welfare of the people, as mandated by the Law No. 7 of 1992 on Banking as amended by Law No. 10 of 1998 (hereinafter referred to as the Banking Law). On the other hand, banks should also be encouraged to conduct an end-to-end digital transformation to be able

7、to compete in the current digital era.By 2025, one of the visions of the Indonesian payment system (Sistem Pembayaran Indonesia, SPI) is to support banking digitisation as the main institution in the digital financial economy through open banking and the use of digital technology and data. Open bank

8、ing is one of the five initiatives of the 2025 SPI Blueprint, in addition to the Retail Payment Systems, Financial Market Infrastructure, Data Regulation, as well as Licensing and Supervision. Journal of Central Banking Law and Institutions, Volume 1, Number 1, 2022120The five initiatives will be im

9、plemented by five working groups that will collaborate with relevant ministries and institutions as well as industries and will be realised in the span of 2019 to 2025.1 The fulfillment of the four pillars of digital banking, namely channels for consumers (omni banking), agile architecture and infra

10、structure (modular banking), open interaction with third parties (open banking), and efficient use of data-based resources (smart banking). The four pillars are aimed at accelerating digital transformation in the banking sector. Open Banking is defined as an approach that allows banks to disclose th

11、eir consumers financial data and information to third parties (fintech). Open Banking will be realised through Open API standards which include technical standards, security standards, and governance standards. In particular, the focus of development will be directed at standardising the disclosure

12、of payment data for use cases of MSME lending based on consumers consent.2 According to Stranieri, et. al., the Open Banking model is a data-sharing model emerging in the financial services sector that involves technological and regulatory innovations designed to facilitate access to banking records

13、 by third-party providers such as payment service providers. The model is predicted to disrupt the financial services industry and encourage a wave of new third-party providers offering innovative services that will change the relationship between customers and banks. The open banking data sharing (

14、OBDS) model includes technological and legal innovations emerging in the financial services sector where banks and other financial institutions commit to having real-time customer data accessible to third parties through application programming interfaces (API).3 As stated by on Phil Laplante and Ni

15、r Kshetri:4 Open banking (OB) is a term that describes a special kind of financial ecosystem. The ecosystem is governed by a set of security profiles, application interfaces, and guidelines for customer experiences and operations. The OB ecosystem provides more choices and information to consumers a

16、nd allows easier interaction with and movement of money between financial institutions and any other entity choosing to participate in the financial ecosystem. OB also makes it easier for new entries into the financial business sector through the OB ecosystem.1 Bank Indonesia, Bank Indonesia : Menav

17、igasi Sistem Pembayaran Nasional Di Era Digital BANK INDONESIA (Jakarta: Bank Indonesia, 2019), 4.2 Ibid., 24.3 Andrew Stranieri et al., “Open Banking and Electronic Health Records,” in ACSW 21: 2021 Australasian Computer Science Week (Association for Computing Machinery, 2021), 14, 2. https:/doi.or

18、g/https:/doi.org/10.1145/3437378.3437397.4 Phil Laplante and Nir Kshetri, “Open Banking: Definition and Description,” Computer 54, no. 10 (2021): 12228, 122. https:/doi.org/10.1109/MC.2021.3055909.The Principle of Amanah in the Utilisation of Consumers Personal Data and Information in Open Banking12

19、1In general, one banking activity is to collect funds from the public in the form of deposits that are governed by a fund deposit agreement between the bank and the depositor of the fund (hereinafter referred to as the “Consumer”).5 Based on said agreement, a legal relationship arises between the ba

20、nk and the Consumer based on the fiduciary principle, the prudential principle and the confidentiality principle. As the manifestation of the confidentiality principle, there exists a norm that requires banks to keep confidential information regarding consumers who deposit funds and their deposit re

21、cords as mandated under Article 40 paragraph (1) of the Banking Law. This provision aims to maintain public trust, especially for customers who deposit funds, since the more trust given to the bank, the more customers will use a banks services. However, the Banking Law adheres to the theory of bank

22、secrecy which, in nature, is relative, thus it is possible for banks to disclose confidential information regarding their customers and their deposits if it is authorised by law.Open banking allows banks to obtain consumer financial data and information and provide it to third parties. Exceptions to

23、 bank secrecy under the Banking Law do not include legal actions taken by banks in open banking. The limited exceptions set forth in the Banking Law are for taxation interests, settlement of bank receivables, judicial interest in criminal cases, civil cases between banks and their customers, exchang

24、ing written information between banks, upon request, approval or power of attorney from depositors specified outside the Banking Law, which is under the crime of money laundering as regulated under the Law No. 8 of 2010 on the Prevention and Eradication of the Crime of Money Laundering, and under th

25、e Constitutional Court Decision No. 64/PUU-X/2012 in relation to the interests of the judiciary regarding joint assets in divorce cases. As such, the legal basis for banks in open banking should be equivalent in statutory form.Marnia Rani emphasised that maintaining the principle of confidentiality

26、of the financial information of Consumers is very important for banks in carrying out their business activities, because the existence of such confidentiality 5 Based on Article 2 of the Financial Services Authority Regulation No. 1/POJK.07/2013 on Consumer Protection in the Financial Services Secto

27、r, what is meant by consumers are parties who place their funds and/or take advantage of the services available at Financial Services Institutions, including customers in banking, investors in the Capital Market, policyholders in insurance, and participants in Pension Funds, based on the laws and re

28、gulations in the financial services sector. Likewise, in Bank Indonesia Regulation No. 22/20/PBI/2020 on Bank Indonesia Consumer Protection, what is meant by consumers are individuals or entities, whether in the form of legal entities or non-legal entities, who take advantage of products and/or serv

29、ices from providers. Meanwhile, the organiser is any party, either a bank or an institution other than a bank, which carries out activities regulated and supervised by Bank Indonesia whose products and/or services are utilised by consumers.Journal of Central Banking Law and Institutions, Volume 1, N

30、umber 1, 2022122guarantees it will create a sense of “confidence” for Consumers who need a “non-disclosure” atmosphere for their financial information. From this sense of “confidence” a fiduciary relationship arises between the bank and its customers which will also have an impact on the development

31、 of the banking business.6 It was also stated by Revanthy that:7 Mainly in banking since the foundation of banking lies in trust, confidentiality, and credibility. Its an important role is to protect our sensitive and personal data. It also defends the entire network from the malicious use of custom

32、er assets. Nowadays especially during the Covid times, more people use cashless transactions so many fraudulent activities are done online. As a result, customer lose trust in banks and other financial institutions where cyber security deals and resolves to give solution this problem by protection t

33、heir data.Some examples of bank account opening in both Islamic and conventional banks, which embodied clauses that give approval or non-approval for banks to provide and or disseminate consumers personal data, are as follows:1. BTN Syariah: I AGREE / DISAGREE* to give the bank the right to provide

34、and or disseminate my personal data to other parties outside the banks legal entity for commercial purposes.2. BNI: The bank can provide my data and information to third parties, which include subsidiaries and/or companies that cooperate with the bank in the context of offering products and services

35、 from each of these companies. At BNI, there is a column to be selected by consumers to agree or to disagree with the above provision.3. BCA: Account Holder hereby gives approval to BCA to provide account holders data to parties outside BCA, who cooperate with BCA, in the context of promotional acti

36、vities or for other commercial purposes.4. MayBank: “I hereby give an approval and atuthorisation to the Bank to use, disclose information, or check information to third parties for all data, information and information obtained by the Bank regarding myself including but not limited to personal data

37、, transactions, collectability status, and my personal means of communication for all other purposes in 6 Marnia Rani, “Perlindungan Otoritas Jasa Keuangan Terhadap Kerahasiaan Dan Keamanan Data Pribadi Nasabah Bank,” Jurnal Selat 2, no. 1 (2014): 16881, 168.7 P. Revathy and G. Belshia Jebamalar, “A

38、 Review Based on Secure Banking Application against Server Attacks,” in Smart Intelligent Computing and Communication Technology, ed. V.D. Ambeth Kumar et al., vol. 38 (Amsterdam: IOS Press, 2021), 24145, 241. https:/doi.org/10.3233/APC210044.The Principle of Amanah in the Utilisation of Consumers P

39、ersonal Data and Information in Open Banking123accordance with the laws and regulations, including for the marketing of bank products or other parties who cooperate with the Bank.”These clauses are common in every bank account opening. If being tracked, such clauses are the manifestation of the Fina

40、ncial Services Authority (Otoritas Jasa Keuangan, or OJK) Regulation No. 1/POJK.07/2013 on Consumer Protection in the Financial Services Sector (POJK 1/2013) and the Financial Services Authority Circular Letter No. 14/SEOJK.07/2014 on Data Confidentiality and Security and/or Consumer Information (SE

41、OJK 14/2014). It is stated that a bank, as one of the Financial Services Business Actors (PUJK), is prohibited in any way from providing personal data and/or information regarding its Consumers to third parties. However, this prohibition is excluded if: the consumer gives written consent, and/or as

42、required by laws or regulations. As a consequence, an issue has arisen as to whether the existence of such a clause can override the principle of confidentiality that must be adhered to by the bank and can eliminate the banks responsibility for the misuse of consumer data and/or information by third

43、 parties; further, what are the principles underlying the relationship between a bank and its customers in an open banking, in addition to the fiduciary principle, prudential principle, and the principle of confidentiality?II. THE PRINCIPLE OF CONFIDENTIALITy A banks obligation to maintain bank secr

44、ecy may arise from a contractual relationship and/or as prescribed by the law. The obligation of secrecy, which is called the duty of confidentiality, consists of two parts, namely:8a) the obligation not to provide information about its Consumers to third parties, and b) the obligation not to use co

45、nfidential information obtained from its Consumers for its own interests. This is intended to avoid any conflict of interest for the bank.Samahir Abdullah stated that regarding the obligation of banks to keep their Consumer information confidential before, during and after the end of the relationshi

46、p between the bank and its Consumers, as follows:98 Akhmad Yasin, “Keterkaitan Kerahasiaan Bank Dan Pajak: Antara Kepentingan Negara Dan Pribadi,” Jurnal Konstitusi 16, no. 2 (2019): 21234, 221. https:/doi.org/10.31078/jk1621.9 Samahir Abdullah, “The Banks Duty of Confidentiality, Disclosure Versus

47、Credit Reference Agencies; Further Steps for Consumer Protection: Approval Model,” European Journal of Current Legal Issues 19, no. 4 (2013), https:/webjcli.org/index.php/webjcli/article/view/296/405.Journal of Central Banking Law and Institutions, Volume 1, Number 1, 2022124 The banks duty of confi

48、dentiality covers all customers information about themselves, and their accounts held by the bank, irrespective of the information source and for as long as the banker-customer relationship exists. There are many logical reasons for obliging the banks to keep customers confidential data private befo

49、re, during, and after their relationship. First, information provided to the bank before the beginning of the contractual agreement is possibly the same information that is provided by the customer after that agreement has been initiated; consequently, such information falls under the duty of confid

50、entiality. Secondly, information provided to the bank at any period during the banker-customer relationship does indeed fall under the banks duty of confidentiality according to the common law definition of confidentiality. Thirdly, in practice, there is nothing to prevent banks from adhering to an