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ISLAMIC CRIMINAL LAW ANALYSIS OF CYBER CRIMES ON
CONSUMERS IN E-COMMERCE TRANSACTIONS
Jaenudin, Rasyida Rofiatun Nisa
UIN Sunan Gunung Djati Bandung
Received:April
3th, 2021
Revised: April
14th, 2021
Approved:April
16th, 2021
Abstract
The purpose of this research is to study cyber crime in e-commerce
transactions from the perspective of Islamic criminal law and how
to deal with cyber crimes that harm consumers in e-commerce
transactions according to the analysis of Islamic criminal law.
This research is a normative legal research where laws are
conceptualized as written regulations, or laws are conceptualized
as rules or norms, the latter being a benchmark for human
behavior, and considered appropriate to review written
regulations. The results showed that cybercrime is a form of crime
in the modern era. Therefore, according to the analysis of Islamic
criminal law, cyber crimes can be punished by Ta'zir. For Syrians,
ta'zir is a sanction based on disobedience, because it does not
explicitly state the crimes contained in the Koran and Hadith.
Keywords: Cyber Crime, E-Commerce, Islamic criminal law
This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International
INTRODUCTION
The development of e-commerce transactions cannot be separated from the
growth of the internet, because e-commerce runs through the internet network. The rapid
growth of internet users has made the internet an effective medium for companies to sell
goods or services to potential consumers around the world (Halim, 2010). E-commerce is
a modern business model that does not actually represent merchants and does not have an
original signature. The existence of e-commerce can form a healthy competition between
large and small businesses in the process of fighting for market share (Siregar et al.,
2020). Even market share crosses national borders because activities on the Internet can
reach the entire world. Some things in the real world may be far away and difficult to
reach, but things in the virtual world can appear as if the world is nearby. Besides having
many advantages, e-commerce can also cause many losses (Irmawati, 2011). This can
open doors for criminals. The most obvious gap in the convenience provided by this
technology is that there are no face-to-face transactions between buyers and sellers
(Hardiawan & Sugiono, 2013). The negative impact of these technological developments
gave birth to a new legal system called cybercrimes (Raodia, 2019).
Advances and convenience in technology have brought gaps for some people,
and crime has changed (Setiawan, 2018). Many cases of fraud in e-commerce services
occur, using two modes, namely hacking and online fraud. In this mode, the perpetrator
will enter through the victim's account, then consume the balance that has been deposited
by the consumer or take over the victim's credit card. If fraud occurs, the perpetrator
usually represents a service company / online shop then asks for a code or password to
verify the data (Utami, 2019).
The National Police's Criminal Investigation Agency's Cyber Crime Bureau
revealed that the number of cybercrimes continues to increase every year, especially in e-
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Islamic criminal law analysis of cyber crimes on consumers in e-commerce
transactions 177
commerce-related fraud and hacking. In the end, the criminal motive for the purpose of
money takes advantage of the payment gateway facility or currency deposit facility,
where consumers first deposit a certain amount of currency for online transactions.
The increase in cybercrime-related to e-commerce is also caused by the easy
access of criminals to fake account numbers and fake cellphone numbers to help
criminals commit malicious acts without leaving any real traces (Sari et al., 2020). The
emergence of abusive behavior in e-commerce transactions will raise various legal
problems so that legal protection is needed for e-commerce transactions.
In Indonesia, currently, there is Law Number 11 of 2008 concerning Electronic
Information and Transactions, which is considered as the law in Indonesia which
regulates cybercrimes. This law defines cybercrimes or electronic crimes as an attempt to
enter and or use computer facilities or computer networks without permission and
unlawfully with or without causing changes and or damage to the computer facilities that
are entered or used (Marita, 2015).
Islam emphasizes the existence of morals in buying and selling, such as healthy
competition, honesty, openness, and justice. The application of these ethical values is the
responsibility of every trader, including e-commerce transactions. For a Muslim, these
values reflect his belief in Allah SWT. Even the Prophet Muhammad played the role of
Mukhtasib (supervisor) in the market. He immediately criticized trade transactions that
did not respect moral values (Rivai, 2012).
Basically, Indonesia has implemented several products of Islamic law, such as
Qanun Hukum Jinayat and Fatwa DSN-MUI No. in Aceh. 05 / DSN-MUI / IV / 2000
About Greetings. Buying and selling online refers to buying and selling via advance
trading, where the buying and selling contract via advance trading is a greeting. The
Sharia Business Lawbook, (Mardani, 2014) explains that salam is a financing service
related to buying and selling, financing, and ordering goods at once. A survey conducted
by Kaspersky Lab in 26 countries/regions shows that Indonesia is one of the countries
with the largest number of online fraud victims in the world, with 26% of consumers
being victims (Manuhutu et al., 2021) Indonesia is still weak.
In addition, cybercrime occurs because of weak personal and social control
(Habibi & Liviani, 2020). This is because such crimes are virtual crimes that are not
visible to the naked eye. Normatively, cybercrime is a conventional crime but has new
modes such as pornography, fraud, and defamation (Simbolon, 2018). By using the
internet as a means of crime, criminal sanctions can be imposed in accordance with the
provisions of the Criminal Law. At that moment similarly, new types of cybercrime such
as hackers have emerged, which are not covered by the Criminal Law so that there is a
legal vacuum.
As one of the makers of national criminal law, Islamic criminal law needs to
conduct research and analysis on the contribution and important role of cybercrime which
is not conducive to consumer e-commerce transactions. Cybercrime in Islamic criminal
law is not much different in terms of its features and elements (Aulia, 2017). For
example, theft, the elements contained in the theft are the property of both, such as theft
does not belong to their rights, stealing without everyone's knowledge, wanting to own
the item. and other elements. In terms of characteristics, both of them also have
similarities, namely that there has been a legal incident.
Previously, there was a research that was relevant to this research, namely
research conducted by (Mohammad Haidar Ali, 2012) with the title Cyber Crime
according to the Law of the Republic of Indonesia Number 11 of 2008 concerning ITE
(Islamic Criminal Law Perspective). In this research, cybercrime is seen from the point of
view of Islamic criminal law, which is the main foundation for the juridical aspects, is the
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Islamic criminal law analysis of cyber crimes on consumers in e-commerce
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namely the realization of human benefit both in the world. Afterlife, namely the
realization and maintenance of al-masalih al-khamsah or five basic needs in human life
which include the maintenance of religion (hifz al-din), soul (hifz alnafs), descent or
honor (hifz al-nasl), property (hifz al -mal), and reason (hifz all). So that the reality in
cybercrime practices is considered to violate these five basic needs in human life. The
criminal sanctions for fraud, decency, gambling, threats, destruction, and theft can be
seen in the ITE Law. Whereas in Islamic criminal law, criminal sanctions are determined
based on Jarimah Hudud, Jarimah Qishas and Diyat, and Jarimah Ta'zir.
In contrast to previous studies, this study focuses more on the analysis of
cybercrimes that harm consumers in e-commerce transactions. So the main focus of this
research is not only on cybercrime but also on the handling of e-commerce victims.
Therefore, the purpose of this research is to study cybercrime in e-commerce transactions
from the perspective of Islamic criminal law and how to deal with cyber crimes that harm
consumers in e-commerce transactions according to the analysis of Islamic criminal law.
RESEARCH METHODS
This research uses the normative juridical method, namely by reviewing or
analyzing supporting data in the form of legal materials (especially primary and
secondary law). Understanding law as a set of rules or active norms in the legal system
that governs human life. The norm in this study is descriptive analysis research, namely
research that describes in detail the results of the analysis of relevant legal principles,
legal systems, levels of vertical and horizontal synchronization, legal comparisons and
positive law catalogs. Descriptive research aims to provide data that is as accurate as
possible about humans, conditions, or other symptoms (Soekanto & Sulistyowati, 2013).
Meanwhile, normative legal research always focuses on secondary data sources.
The data collection technique used was literature study from secondary data that had been
analyzed.
RESULTS AND DISCUSSION
Cybercrime is a form of crime that has emerged in the modern era. Therefore,
according to the analysis of Islamic criminal law, cyber crimes can be punished by Ta'zir.
Ta'zir means prevention (al-man'u) according to the language. According to the term
ta'zir, it is an educational punishment (ta'dib) in the sense that is meant through
intimidation (tankif). For Syrians, taz'ir is a sanction based on disobedience, because it
does not explicitly state the crimes contained in the Koran and Hadith. The kinds of ta'zir
punishments can take the following form:
a) Death penalty;
b) If or whip 10 times;
c) Exile, boycott or prison;
d) Cross;
e) Compensation (ghuramah) or by means of confiscation;
f) Warning or advice;
g) Revocation of some assets (hurman);
h) Reproach (taubikh);
i) Preaching (tasyhir);
The form of ta'zir sanctions is only limited to these forms. The Caliph or Judge
(qadhi) is given the right by the Shari'a to choose between the forms of sanctions and
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determine the level, he may not determine sanctions other than that. The case of ta'zir is
generally divided into:
a. Honor violations;
b. Offense against glory;
c. Deeds that destroy reason;
d. Violation of security disturbance of property;
e. Subversion;
f. Offenses related to religion;
From the perspective of Islamic criminal law, cybercrime includes actions that
undermine social values in the world of information technology, and these actions have
an impact on the entire society at home and abroad. When the traffic of cyberspace users
becomes an economic and social victim, especially in the e-commerce market through
fraudulent online shopping behavior, this behavior is detrimental to many consumers, you
will feel this impact.
Therefore, cybercrime is prohibited by Allah SWT. Because Allah does not like
people who harm and harm others. Destruction in any form is not justified, because it is
an act that is contrary to universal values. Allah SWT expressly says in Surah Al-Maidah
verse 64:
"The Jews say:" Allah's hand is bound ", actually their hands are bound and they
are the ones who are damned because of what they have said. (Not so), but God's
hands are open; He spent as He wanted. And the Quran that was revealed to you
from your Lord will certainly increase iniquity and disbelief for most of them.
And We have caused enmity and hatred between them until the Day of
Resurrection. Every time they kindle the fire of war, Allah extinguishes it and
they do damage on the face of the earth and Allah does not like those who do
damage,".
This verse confirms that destruction is prohibited by Allah SWT. In any form and
anywhere, it still doesn't make sense. Hacker behavior is a very important part of the
behavior and conduct of cybercriminals, and that behavior is prohibited in this paragraph.
The foundation of the prohibition can cause things that are not good for others.
In Islamic criminal law, cybercrime is part of Jarimah ta'zir. Jarimah ta'zir is the
finger and the punishment of syara which is hesitant, and the power to decide is given to
the ulil amri (government/judge), with the consideration that this punishment can prevent
the perpetrator from repeating and punishing. The sentence was adjusted according to the
level of crime. Based on the method used, it can be seen that criminal sanctions for e-
commerce services or so-called card swiping according to the ITE law are included in
Article 30 and Article 31. These provisions are basically for visiting other people without
the knowledge of the owner. Electronic system. In Islamic criminal law, the use of the
qias method can see sanctions to eradicate crime, because the legal illusion is similar to
theft.
Among the conventional laws that are deemed insufficient to solve cybercrime
problems, the ITE law is expected to be the right answer. Islamic criminal law is Allah's
Islamic law which contains the interests of the world and the future of human life.
Basically, sharia law contains the basic obligations of every person to carry out Islamic
teachings. The concept of the basic obligation of Sharia law is to make Allah the owner of
all rights, including all the rights of oneself and others.
Everyone is a person who carries out Allah's orders and is obliged to carry out
Allah's orders for the benefit of himself and others (H.Zainuddin Ali, 2019). The Criminal
Code views cybercrime as a real crime whose modus operandi has been modernized and
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whose substance is similar to Islamic Criminal Law. However, in the process of
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determining the type of crime, there are similarities in the elements inherent in these
types of crimes.
Jarimah is stated in Islamic Criminal Law as a criminal offense or a criminal act.
If this is related to cybercrime then it becomes a fingertip, but cybercrime is a crime
committed in cyberspace through electronic media and the internet. Jarimah is done in the
real world. Looking at the reality of the cyber world, laws related to cybercrime must be
focused on discussing Islamic criminal law because existing laws have not been
implemented optimally. This is because existing laws are not taken from clear sources as
legal products. In contrast to the situation of Islamic criminal law, the origin of Islamic
criminal law is clearly derived from the Koran and the Sunnah. The clarity and purity of
these sources can result in a legitimate and accountable product.
Electronic media is an alternative method of conducting e-commerce business
transactions so that the consequence of this is that the payment system is very vulnerable
to cybercrime. If the consequences of this act cause harm to other parties in the form of
material or non-material or non-material disturbances (such as peace, dignity, customs,
etc.), it can be said to be a criminal event. The reasons for this dangerous behavior
include the character of a person who tends to benefit himself, even though the result of
the choice or behavior is harmful to others. Therefore, cybercrime has become part of the
same object of criminal behavior, which can be classified as a finger in Islamic criminal
law. In this case, what needs to be emphasized is the extent to which criminal acts are
resolved in cyberspace according to Islamic criminal law.
Abdul Wahid and Mohammad Labib wrote in their book: "Mayatara crime
(cybercrime)". This book seeks to provide several solutions to the serious phenomenon of
the new world of crime called cybercrime, which is described from the perspective of the
sociology of law, legal criminology, and the application of alternative law. If the early
prevention aspects are not explained in detail, this is considered insufficient (Wahid &
Labib, 2015).
Therefore, it is necessary to emphasize prevention from an early age. Cybercrime
is part of the same object of criminal behavior, which can be classified as a finger in
Islamic criminal law. In this case, what needs to be emphasized is the extent to which the
resolution of cybercrime is in accordance with Islamic criminal law. According to the
division of Jarimah in Islamic criminal law, cybercrime is classified as Jarimah ta'zir.
This is due to the lack of Al-Quran text that explains the problem of cybercrime.
However, if followed up further, you can find that Jarimah is included in the Jarimah
Hudud category. This includes charges of adultery (slander), gambling or lottery, theft,
and fraud. In general, cybercrime focuses more on types of criminal cases where physical
contact does not occur in person and therefore does not involve cases involving physical
contact. For example, in Articles 30 (1), (2), and (3), the ITE Law becomes the legal basis
for combating crime (credit card crimes). In this case, there are several possibilities that
can be done to sort out the perpetrators of the crime, namely theft or embezzlement of
public funds. It could be argued that the perpetrator stole because he took things he
shouldn't have done illegally. The object of theft can be various, one of which is through
the use of e-commerce platforms.
It is called embezzlement because it uses a common method, namely changing or
adding to data by entering false information into computer data. This operation is called
data spoofing. Data processing from large companies (such as banks) usually involves
some unethical people.
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Islamic criminal law analysis of cyber crimes on consumers in e-commerce
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CONCLUSION
Cybercrime is a form of crime that has emerged in today's modern era. Thus,
cybercrime according to the analysis of Islamic Criminal Law can be called ta'zir. Ta'zir
according to the language means prevention (al-man'u). As for according to the term
ta'ziricipation, it is educational (ta'dib) in the sense of delivering by means of frightening
(tankif).
According Syrians, Ta'zir is a sanction based on disobedience, because the
actions are not explicitly contained in the Koran and Hadith. From the perspective of
Islamic criminal law, cybercrime includes acts that undermine social values in the world
of information technology, and these acts have an impact on the entire society at home
and abroad. When the traffic of cyberspace users becomes an economic and social victim,
especially in the e-commerce market through fraudulent online shopping behavior, this
behavior is detrimental to many consumers, you will feel this impact. Therefore,
cybercrime is prohibited by Allah SWT. Because Allah does not like people who harm
others.
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