In the wake of wikileaks, the Australian government recently issued a booklet titled “The Insider’s Threat to Business: A Personnel Security Handbook”. The booklet elaborate precautionary approaches that a business organization may employ in order to prevent the leak of confidential business information.

 

One of the legal method to prevent leaks (this is not explained in the booklet) is through the signing of employee confidentiality agreement. My research however indicates that the power of confidentiality agreements differs across jurisdiction. In the common law jurisdiction, confidentiality carries more weight due to the operation of obligation of confidence under the English equity law. The obligation of confidence protect the imparting of information in a ‘trust’ environment, such as between a doctor and its patient, or between a employer and employee. As such, the obligation may be enforced irrespective of agreement.

 

This is not the situation in continental legal system. I have yet to find any obligation to keep secret, independently of an agreement. Hence, an employee signing confidentiality agreement in a continental jurisdiction will be bound only to the extent of the agreement. When he decide to disclose the information one day, it would amount simply to a breach of (an employment) contract.

Determination of access level and the use of Digital Rights Management are therefore the most appropriate precaution. You will find some details about this in the booklet.

 

I contributed a paper about the transparency agenda in water utilities regulation and the role of Freedom of Information Law for the next edition of the Journal of Water Law. The case studies are England and Indonesia. The paper is quite relevant for the situation in Indonesia as the Freedom of Information Law has just been recently enacted and not so many literature is available. This is the content of the forthcoming Journal of Water Law which you might find interesting:

 

CONTENTS

 

Preface

Promoting water (law) for all Addressing the world’s water problems – a focus

on international and national water law and the challenges of an integrated approach

PATRICIA WOUTERS, SARAH HENDRY

 

International Water Law

Reframing the water security dialogue

DAN TARLOCK, PATRICIA WOUTERS

 

Introducing an analytical framework for water security: a platform for the refinement of

international water law BJØRN-OLIVER MAGSIG

 

The principle of good faith in the Argentina-Uruguay pulp mills dispute

TERESA LIGUORI

 

Examining the thresholds of harm for international watercourses in the Canada-US

context: would a mining development in the Flathead River watershed violate the Boundary

Waters Treaty?

MICHAEL AZULAY

 

The concepts of equitable utilization, no significant harm and benefit sharing under

the Nile River Basin Cooperative Framework Agreement: some highlights on theory and

practice

MUSA MOHAMMED ABSENO

International water law in Central Asia: commitments, compliance and beyond

DINARA ZIGANSHINA

 

National Water Law

Protection of foreign investment and the implications for regulation of water services and

resources: challenges for investment arbitration
ANA MARIA DAZA VARGAS

Responding to the ‘water crisis’: the complementary roles of water governance and

the human right to water
HILARY J GRIMES

The transparency agenda in water utilities regulation and the role of freedom of

information: England and Jakarta case studies

MOHAMAD MOVA AL ‘AFGHANI

 

Valuing water in law: how can Indigenous cultural values be reconciled with Australia’s

water law in order to strengthen Indigenous water rights?

TRAN TRAN

An analytical framework for legal regimes applicable to freshwater ecosystems

HUGO TREMBLAY

Bridging the water law, policy, science interface: flood risk management in Scotland

CHRIS SPRAY, TOM BALL, JOSSELIN ROUILLARD


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Supreme Court Decision on Water Monopoly in Batam
Missing water and shadow users
14 Disturbing Facts about Jakarta's Water
Tomorrow, the Freedom of Information Law is in force!
Three ways for your business to be implicated by the new Indonesian freedom of information law
Where to complain for bad water services – a comparison
Jakarta’s water crisis, whose fault?

Human Right  Aspects of Private Sector Participation in the Water Sector
Is water a commodity or human rights?
The human right to water is not a property right
Why busy with the right to water instead of governance
Consultation on the Human Right  Aspects of Private Sector Participation in the Water Sector: more responses from the private sector

 

 

Suppose you have just built a new home in a nice city. All your neighbours has water connection, unfortunately, the local water company refuse to extend their pipes into your property. Do you think they are acting against the law?

 

Before we argue on the basis of positive law, I will first raise the issue on what the law ‘should be’ : Do you think the law should obligate water companies to provide connections to consumer? To put it into other terms, can water companies refuse a connection request? If they can, under what basis?

 

The answer to the first question is ‘yes’. The reason is because water is a special kind of good. Many authors classify it into merit good and quasi public good, I do not wish to discuss this in a more detail. To illustrate, consider the differences of buying water from buying clothes. In buying clothes, you have a number of option, you can go either to debenhams, zara or marks & spencer. But for water, it is likely that you are stuck with only one company for the whole city. If that company refuses to trade, then you are doomed. This is what natural monopoly is all about in practice: consumer is stucked with few option or no option at all. Existing customer also find it difficult to exit from the market as no competitor is available in their local. So, unless the water company is regulated, they can do anything they want.

 

How should the law deals with this phenomenon?

 

The English Law obligates water companies to ‘satisfy reasonable demands’. This is what the Water Industry Act 1991 says:

 

Domestic connections

45Duty to make connections with main

(1) Subject to the following provisions of this section and to sections 46 and 47 below, it shall be the duty of a water undertaker (in accordance with section 51 below) to make a connection under this section where the owner or occupier of any premises in the undertaker’s area which—

(a)consist in the whole or any part of a building; or

(b)are premises on which any person is proposing to erect any building or part of a building,

serves a notice on the undertaker requiring it, for the purpose of providing a supply of water for domestic purposes to that building or part of a building, to connect a service pipe to those premises with one of the undertaker’s water mains.

(2)Where a notice has been served for the purposes of this section, the duty imposed by subsection (1) above shall be a duty, at the expense of the person serving the notice, to make the connection required by the notice if—

(a)the main with which the service pipe is required to be connected is neither a trunk main nor a water main which is or is to be used solely for the purpose of supplying water otherwise than for domestic purposes; and

(b)such conditions as the undertaker may have imposed under sections 47 to 50 below have been satisfied;

and, subject to section 51 below, that duty shall arise whether or not the service pipe to which the notice relates has been laid when the notice is served.

(3)A notice for the purposes of this section—

(a)shall be accompanied or supplemented by all such information as the undertaker may reasonably require; and

(b)if the notice has effect so that a requirement is imposed on the undertaker by virtue of section 46(4) below, shall set out the matters that have given rise to the imposition of that requirement;

but, subject to section 51(5) below and without prejudice to the effect (if any) of any other contravention of this subsection, a failure to provide information in pursuance of the obligation to supplement such a notice shall not invalidate that notice.

(4)The duty imposed on a water undertaker by this section shall be owed to the person who served the notice by virtue of which the duty arises.

(5)Where a duty is owed by virtue of subsection (4) above to any person, any breach of that duty which causes that person to sustain loss or damage shall be actionable at the suit of that person; but, in any proceedings brought against a water undertaker in pursuance of this subsection, it shall be a defence for the undertaker to show that it took all reasonable steps and exercised all due diligence to avoid the breach.

(6)Where a water undertaker carries out any works which it is its duty under this section to carry out at another person’s expense, the undertaker shall be entitled to recover from that person an amount equal to the expenses reasonably incurred by the undertaker in carrying out the works.

(7)Nothing in this section or in sections 46 to 51 below shall impose any duty on a water undertaker to connect a service pipe to any premises with a service pipe to any other premises.

(8)In the following provisions of this Chapter a notice served for the purposes of this section is referred to as a connection notice.

 

 

Now let’s see what the Indonesian Law ( Government Regulation 16 Year 2005) suggests:

 

Hak dan Kewajiban Penyelenggara
Pasal 68

 

(2) Setiap penyelenggara berkewajiban untuk:
a. menjamin pelayanan yang memenuhi standar yang ditetapkan;
b. memberikan informasi yang diperlukan kepada semua pihak yang berkepentingan
atas kejadian atau keadaan yang bersifat khusus dan berpotensi akan
menyebabkan perubahan atas kualitas dan kuantitas pelayanan;
c. mengoperasikan sarana dan memberikan pelayanan kepada semua
pemakai/pelanggan yang telah memenuhi syarat, kecuali dalam keadaan memaksa
(force majeure);
d. memberikan informasi mengenai pelaksanaan pelayanan;
e. memberikan ganti rugi yang layak kepada pelanggan atas kerugian yang
dideritanya;
f. mengikuti dan mematuhi upaya penyelesaian secara hukum apabila terjadi
perselisihan; dan
g. berperanserta pada upaya perlindungan dan pelestarian sumber daya air dalam
rangka konservasi lingkungan.
(3) Pemberian ganti rugi sebagaiman dimaksud pada ayat (2) huruf e diupayakan
berdasarkan penyelesaian di luar pengadilan atau melalui pengadilan.
(4) Upaya penyelesaian di luar pengadilan sebagaimana dimaksud pada ayat (3)
dilakukan dengan arbitrase atau

 

Sorry for non English speakers. Article 68(2) of GR 16/2005 regulates the  obligations of a water undertaker in Indonesia. Unfortunately, the obligations they owed is only towards existing customers. I am unable to find any provisions obligating the undertakers to extend their pipes to prospective customers. There is, however, a general obligation for the Regional Government to provide water services to citizens in their locale (See Art. 40.c).

 

Hence, if you complain why your water company refuse to extend their pipes to your newly erected building or homes, the law may not be on your side. Sorry :(

 

Related Posts:

Indonesian Water Services Suffering from a Lack of Governance

Supreme Court Decision on Water Monopoly in Batam 

Missing water and shadow users
Troubled Waters: Confronting the Water Crisis in Australia’s Cities (Free Ebook)
14 Disturbing Facts about Jakarta's Water