Consequences of Excessively Promoting Something
By: Clara Viriya (firstname.lastname@example.org) and Adi Satrio
Promotion is an activity to spread the information about a product (whether it is a goods and/or services) by the business owner to the consumers. The objectives and purposes of the promotion is to let the consumers know about their products, and so that they will buy/purchase it later in the near future. In the past, the promotion usually taking place in the newspaper, television, radio, and any other mass media. As the era of information growing up, the promotion also taking more places than before, such as: short message service (“SMS”), social media, electronic mails as well as marketplace.
The telecommunication provider (“provider”) also does the promotion, to promote and advertise their product and service to their customers. In doing so, they are commonly using push message or SMS. In Indonesian laws, there are no regulations regarding consumer protection that regulate the details about the time period for the business owner (including provider) to promote or advertise their products/services. On the other hand, if we talk about a financial services company, the Financial Service Authority (Otoritas Jasa Keuangan – OJK) through the Circular Letter No. 12/SEOJK.07/2014 on the Delivery of Information in Order to Marketing the Product and/or Financial Service stated that the communication between the financial service provider and the consumers shall within Monday to Saturday (outside national holidays) from 08.00 – 18.00 WIB. Due to the vacuum of law, the provider sometimes promoting their products not in the right time, such as in the midnight.
Furthermore, Article 15 of the Law No. 8 of 1999 on Consumer Protection Law (“Consumer Protection Law”) regulates the business owners are prohibited from offering their products through any methods which can cause either physical or psychological annoyance to the consumers. If the consumers feel a psychological annoyance due to the provider’s promotion message, they may use their rights that regulated in Article 4 of Consumer Protection Law that stated the consumers has the right to obtain comfort, security, and safety in using or consuming a goods and/or services.
This happened to Alvin Lie, the member of Ombudsman of Republic of Indonesia, who become consumer of one of the biggest provider in Indonesia. Firstly, his provider always send him the promotion and advertisement messages continuously and massively. Also, he receives those messages from the provider in the midnight which according to him, it is not fair and disturbing his privacy. Hence, he feels the psychological annoyance by the provider’s promotion message.
In light of the above, if the consumer feels a psychological annoyance by the way of the provider promoting their products/ services, they may submit a lawsuit against the provider to the District Court of the provider’s domicile. The consumers shall use the unlawful act regulated in Article 1365 Indonesian Civil Code where there are several elements of the unlawful act, inter alia:
- An act;
- Injury or Damage; and
- Causation between the act and the injury or the damage.
The provider does an unlawful against the Article 15 of Consumer Protection Law because the consumers get a psychological annoyance by the promotion message from the provider that sent in the midnight. In this case, the consumers may submit a material loss or an immaterial loss as a consequence of the provider’s message. Furthermore, pursuant to Article 34 paragraph (2) point a and b of Ministry of Communication and Information Number 9 of 2017 on the Provision of Content Services on Cellular Mobile Networks (Permenkominfo 9/2017), the above act on promotion and advertisement may be deemed violating the provision on the “user protection”. In which, in this case: privacy interference and repeated annoyance offer.
Moreover, the provider can also be deemed has no good faith to stop the above act of promotion and advertisement since it waives their responsibility to implement the systems that minimize the undue spread of messages, as well as establishing a consumer complaint/ report system as stated in the Article 23 paragraph (3) point b and c of Permenkominfo 9/2017.