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All Journal Multidiciplinary Output Research for Actual and International Issue (Morfai Journal) Journal of Law, Poliitic and Humanities
Dian Aryani Kusady
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Religion Agriculture, Biological Sciences & Forestry Arts Humanities Chemical Engineering, Chemistry & Bioengineering Civil Engineering, Building, Construction & Architecture Computer Science & IT Decision Sciences, Operations Research & Management Economics, Econometrics & Finance Education Energy Engineering Environmental Science Health Professions Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice Library & Information Science Materials Science & Nanotechnology Social Sciences Other

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Application of Essential Facilities Doctrine to Data and Algorithm Access As An Enforcement Instrument for Article 25 of Law No. 5 Of 1999 in The Digital Economy Dian Aryani Kusady
Journal of Law, Politic and Humanities Vol. 6 No. 2 (2025): (JLPH) Journal of Law, Politic and Humanities
Publisher : Dinasti Research

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.38035/jlph.v6i2.3059

Abstract

Dominant digital platforms in Indonesia control strategic assets in the form of massive user data and search/recommendation algorithms that serve as market access gateways. Exclusive control over these assets creates barriers to entry and forecloses competitors in the digital ecosystem. The Essential Facilities Doctrine (EFD), traditionally applied to physical infrastructure such as ports and telecommunications networks, offers a legal framework for identifying when control over digital assets can be qualified as abuse of dominance requiring access sharing with competitors. This article doctrinally examines whether and how EFD can be applied to non-personal data and algorithms under Article 25 of Law No. 5 of 1999, and explores synchronization with Law No. 27 of 2022 on Personal Data Protection, particularly regarding data portability. The research employs a library-based approach with doctrinal-normative analysis of Law No. 5/1999 and the Data Protection Law, conceptual analysis to develop criteria for "digital essential facilities," and comparative doctrinal analysis of EFD application in the European Union and United States. Findings demonstrate that data and algorithms can be qualified as essential facilities if they cumulatively meet four criteria: (1) controlled by a dominant undertaking; (2) cannot be economically and technically duplicated; (3) access is essential for competing in downstream markets; and (4) no objective justification exists for refusing access. The article recommends that KPPU develop specific guidelines on data and algorithm access, considering efficiency defense, intellectual property rights, and privacy protection. The proposed framework balances competition enforcement with innovation incentives and clarifies when data-sharing obligations arise under Indonesian competition law without requiring legislative amendment.
NON-COMPETE CLAUSES IN DEALER AGREEMENTS AND VERTICAL INTEGRATION: A DOCTRINAL ANALYSIS OF THE NORMATIVE INTERACTION BETWEEN ARTICLE 14 AND ARTICLE 19 OF INDONESIAN COMPETITION LAW IN LIGHT OF KPPU DECISION NO. 18/KPPU-L/2024 (SANY TRUCK CASE) Dian Aryani Kusady
Multidiciplinary Output Research For Actual and International Issue (MORFAI) Vol. 6 No. 3 (2026): Multidiciplinary Output Research For Actual and International Issue
Publisher : RADJA PUBLIKA

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This research analyzes the normative ambiguity surrounding the concurrent application of Article 14 (vertical integration prohibition) and Article 19 (market control prohibition) under Indonesian Law No. 5/1999 in the context of dealer agreements with non-compete clauses. Through doctrinal legal analysis of KPPU Decision No. 18/KPPU-L/2024, which imposed Indonesia's largest competition law fine of Rp. 449 billion for simultaneous Article 14-19 violations, this study identifies substantial evidentiary overlap and legal characterization uncertainty. A comparative analysis of the competition law frameworks of Singapore, the European Union, and the United States reveals transferable principles, including market-share safe harbors, duration-based assessments of non-compete clauses, and structured foreclosure analyses. Findings demonstrate that existing Indonesian statutory provisions lack clear criteria to distinguish structural foreclosure (Article 14) from behavioral exclusion (Article 19), and that KPPU enforcement practice is inconsistent with the procedural requirements under Perkom 5/2010. The research proposes a normative clarification framework that establishes interpretive criteria for concurrent application and recommends regulatory amendments introducing market-share thresholds, a mandatory three-stage analysis, and limitations on the duration of non-compete clauses to enhance legal certainty and enforcement consistency.
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