Year

2015

Degree Name

Doctor of Philosophy

Department

School of Law

Abstract

The complex, remote, and seamless nature of ATM/debit card operations, the relatively outmoded and vulnerable technology employed in the ATM/debit card technology, the innovative and adaptive identity theft and fraud methods, and the severe asymmetry of information suffered by the consumer due to bank reluctance to provide fraud risk education have made unauthorised ATM/debit card transactions an inherent risk and real threat in the rapid development of electronic payment in Indonesia.

The absence of specific fraud liability regulation and the lack of a clear understanding of the facts about unauthorised ATM/debit card transactions have contributed to prolonged disputes between banks and consumers about who should bear liability for the losses. The deficiency in adjudicator knowledge about empirical facts that are intertwined with the unauthorised ATM/debit card transactions as well as of relevant economic and technological facts, and the legal aspects specific to ATM/debit card regulation has also made the adjudicator’s decisions in the alternative dispute resolution (ADR) forum and courts tend towards being unjust and misleading, and failed to create incentives for optimum identity theft/fraud containment.

This thesis, therefore, investigates quite exhaustively the technicalities and standard operating procedures of ATM/debit card system, methods and typology of identity theft and fraud, the fraudsters, the pertinent laws and regulations, and the adjudicator’s verdicts that are relevant to unauthorised ATM/debit card transactions in Indonesia. To enrich the research, comparative analysis was also undertaken with the United States and Australia’s fraud liability/fraud loss allocation rules regulations.

To overcome the legal ramifications and disincentives that might otherwise occur because of lack fraud liability regulation and poor adjudicator decisions on unauthorised ATM/debit card transaction disputes, this thesis proposes law reform on Indonesian fraud liability regulations using multi-disciplinary approaches, namely economic, technological and legal. The thesis concludes by arguing that reform can be achieved by creating clear, fair, enumerated, and decisive loss allocation rules for unauthorised ATM/debit card transactions. To assure sensible adjudicator decisions, this thesis also argues that the old and unjust pure contributory negligence in legal proceedings should be replaced by the comparative negligence principle as part of the law reform.

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