KEY POINTS OF CHANGE IN THE SECOND AMENDMENT OF INDONESIA’S ITE LAW
On 2 January 2024, Law Number 11 of 2008 concerning Electronic Information and Transactions (ITE Law) officially made its second amendment into Law Number 1 of 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Electronic Information and Transactions (Amendment).
There are number of changes, including on electronic transactions, electronic certification, protection for minors and prohibited electronic information or documents.
Following are the main aspects that changed or added in the Amendment:
1. Electronic Certification Organizers
This amendment outlines the roles and services of electronic certification organizers. They are entities responsible for issuing and managing electronic certificates, such as digital signatures, timestamps, and authentication tokens, to verify the identity of individuals and parties in online transactions and communications.
Unlike the old ITE Law, the Amendment to the ITE Law does not make a distinction between foreign and local electronic certification organizers. However, the Amendment states that electronic certification organizers operating in Indonesia must be Indonesian legal entities domiciled in Indonesia. Despite of that, this requirement does not apply if the service using the electronic certificate is not yet available in Indonesia.
This raises the question of whether this exemption applies to foreign electronic certification organizers whose services are not yet available locally or foreign entities offering services that are not yet accessible in Indonesia using electronic certificates.
2. Protection for Minors
The Amendment adds new articles that specifically addressing the safety of minors in the use of electronic systems, namely in Article 16A and Article 16B. These amendments require electronic system organizers to ensure the safety of minors who use or access their platforms, including ensuring their physical, mental, and psychological well-being from misuse of electronic information or documents that violate their rights.
To achieve this protection, electronic system organizers must provide: (i) information on the minimum age limit at which children can use their products or services; (ii) provide a mechanism for verification of use by minors; and (iii) provide a reporting mechanism for any misuse of their products, services or features that violate or potentially harm minor’s rights.
Electronic system organizers who violate these rules may be subject to administrative sanctions, ranging from written warnings, administrative fines to temporary suspension and/or termination of access.
3. Implementation of Indonesian Laws to International Electronic Contracts
The Amendment adds 1 new article that discusses the implementation of Indonesian law in making international electronic contracts that uses standard clauses by electronic system organizer, namely Article 18A.
The implementation of Indonesian law in question is used under certain conditions, namely: (i) Users of electronic system organizer services as one of the parties in electronic transactions originate from Indonesia and give consent from or within Indonesia; (ii) the place of execution of the contract is in the territory of Indonesia; (iii) the electronic system organizer has a place of business in Indonesia or engages in business activities in Indonesia.
4. Changes in Criminal Provisions
Previously, under Article 27 paragraph (3) of the old ITE Law, any activity involving the distribution, transmission, or making accessible of information or electronic documents containing defamatory content was prohibited. However, the old ITE Law did not provide a clear definition of content that could be considered insulting or defamatory.
What is meant by defamation in Article 27A of the Amendment is clearer, as it is defined as attacking the honor or good name of a person intentionally and without the right to accuse others of something, with the intention that it is known to the public through electronic information or electronic documents through an electronic system, which can be punished with a maximum imprisonment of 2 years or a maximum fine of Rp 400 million, or both.
“Attacking the honor of good name” is defined as acts that degrade or harm the good name or self-esteem of another person to the detriment of that person, including by insulting or defaming.
Interestingly, the defamation clause in the Criminal Code Amendment now works both ways, as the accuser can be charged with defamation if they cannot prove their claim, and face up to 4 years imprisonment, a fine of up to Rp 750 million, or both. This amendment provides exemptions from criminal sanctions for violations of articles of decency and defamation, if: (i) it was done in the public interest; (ii) it was done in self-defense; or (iii) specifically for decency, if the electronic information or electronic document is a work of art, culture, sports, health, or science.
5. Threat Messages
Under Article 27B paragraph (1) and (2) of the Amendment, threatening messages are now defined as (i) threats of violence and (ii) threats of defamation or disclosure of secrets, with intent to compel a person to (a) give away something that partly or wholly belongs to that person or others; or (b) pay off debts, acknowledge debts, or write off debts. Violation of this provision is punishable by imprisonment for a maximum of 6 years or a maximum fine of Rp1 billion, or both.
6. Government Participation in Electronic System Organizer
This Amendment introduces a new mechanism, namely Article 40A, in which the government is responsible for encouraging the creation of a fair, accountable, safe, and innovative digital ecosystem. In the explanation, it is explained that this responsibility is intended by establishing policies that allow Electronic System Organizers to get the same opportunity to strive or innovate (equal level of playing field) in a fair, reasonable, and non-discriminatory manner, as well as maintaining the quality of service in the use of Information Technology and Electronic Transactions.
This provision gives the government the authority to instruct electronic system organizers to “make adjustments” to their electronic systems and/or “take certain actions”, which are “mandatory” in nature, so that if violated, administrative sanctions can be imposed. The “adjustments” referred to are limiting or adding features of a software or hardware on an electronic system or prohibiting the use of a feature on an electronic system in Indonesia.
For legal assistance or if you have any questions, please contact:
Fanny
T. (+6221) 2222-0200
E. [email protected]
Bella
T. (+6221) 2222-0200
E. [email protected]
