On 10 October 2019, the Government of the Republic of Indonesia has promulgated Government Regulation No. 71 of 2019 concerning the Implementation of Electronic System and Transaction (“GR No. 71/2019”), which replaces the Government Regulation No. 82 of 2012 concerning the Organization of Electronic System and Transaction (“GR No. 82/2012”). Essentially, GR No. 71/2019 is an updated version of GR No. 82/2012 in order to accommodate the rapid growth of electronic system and transaction in the Republic of Indonesia.
Due to the broad scope of GR No. 71/2019, this article will only cover provisions that we believe may be of concern to the business actors in the field of electronic system and transaction.
Categorization of Electronic System Provider
Under GR No. 71/2019 “Electronic System” means a series of device and electronic procedure that can be used to prepare, gather, process, analyze, store, display, announce, deliver and/or spread any electronic information. The provider of the Electronic System is referred to as electronic system provider (“ESP”). As per according to GR No. 71/2019, ESP is divided into two categories: (i) ESP within public scope (“Public ESP”); and (ii) ESP within private scope (“Private ESP”).
The Public ESP consists of: (i) institutions exercising legislative, executive and judicative functions (“Institution”); and (ii) any other institution(s) which has been appointed by the Institution. However, Public ESP does not include regulatory and supervisory authority in the financial sector.
On the other hand, the scope of electronic systems which are organized by the Private ESP shall cover the followings:
1. any ESP which is subject to regulation or supervision of a ministry or governmental institution; and
2. any ESP which owns internet-based portal, site or application that can be used for:
a. provision, management and/or operation of offer and/or trade of goods and/or services;
b. provision, management and/or operation of financial services transactions;
c. delivery of materials or paid digital contentthrough data networks by way of downloading through portal or site, email transmission or other application to users’ device;
d. provision, management and/or operation communication services, including but not limited to, short message, voice call, video call, email and conversation within network in form of digital platform, network services and social media;
e. search engine services, electronic information provider services in form of text, audiovisual, animation, music, video, films and gamesor any combination thereof; and/or
f. processing of personal data for operational activities of public services which is related to the electronic transaction activities.
Statutory Registration of ESP
GR No. 71/2019 requires both Public ESP and Private ESP to register their Electronic System at the Minister of Communication and Information (“Minister”), before the electronic systems are made available to the intended users. The application for such registration shall be submitted to the Minister electronically via Online Single Submission system in accordance with the relevant laws and regulations.
As a comparison, under the GR No. 82/2012, the registration as described above is only applicable for ESP that relates to public services.
Right to Erasure and Right to Delisting
According to GR No. 71/2019, upon request from any relevant person(s), all ESP are obliged to delete any irrelevant electronic information and/or document that is under ESP’s control. Such obligation to delete irrelevant electronic information and/or document consists of: (i) a Right to Erasure; and (ii) a Right to Delisting, with the following details:
Right to erasure : Irrelevant electronic Information and/or document which can be deleted shall consist of a Personal Data which:
a. is obtained and processed without the consent of its owner;
b. the consent relating to such Personal Data has been revoked by its owner;
c. is obtained and processed illegally;
d. is no longer in correspondence to its purposes when obtained pursuant to relevant agreement and/or laws and regulations;
e. has exceeded its utilization period pursuant to relevant agreement and/or laws and regulations; and/or
f. has been displayed/used by ESP that in which its display/usage inflictslosses to the owner of the Personal Data.
g. is obtained and processed without the consent of its owner;
h. the consent relating to such Personal Data has been revoked by its owner;
i. is obtained and processed illegally;
j. is no longer in correspondence to its purposes when obtained pursuant to relevant agreement and/or laws and regulations;
k. has exceeded its utilization period pursuant to relevant agreement and/or laws and regulations; and/or
l. has been displayed/used by ESP that in which its display/usage inflictslosses to the owner of the Personal Data.
Right to delisting : The right to delisting means a removal of irrelevant electronic information and/or document from search engine, that shall be conducted based on a court decision. The application for the court decision shall be submitted to local district court by the owner of Personal Data, by enclosing the following items:
a. identity of the applicant;
b. identity of the ESP and/or address of ESP’s Electronic System;
c. information on the Personal Data which is no longer relevant that is under the control of ESP; and
d. reason of the request for removal.
For the avoidance of doubt“Personal Data” means any data pertaining to any person, which has already been identified and/or can be identifiedexclusively or can be combined with other information either directly or indirectly through Electronic System and/or non-electronically.
Electronic Transaction and Electronic Contract
In general, “Electronic Transaction” means a legal act conducted through computer, computer network and/or other electronic media. The Electronic Transaction may be conducted within public scope or private scope.
Provision of the Electronic Transaction within public scope shall cover any provision of Electronic Transaction by: (i) the Institution; (ii) other institution(s) which has been appointed by the Institution; or (iii) between the Institutions. As for the Electronic Transaction within private scope, shall cover any provision of Electronic Transaction: (i) between business actors; (ii) between business actors and its customers; and (iii) between individuals.
The Electronic Transaction can be made pursuant to an electronic contract (“Electronic Contract”) or other contractual form, as an agreement between the parties. The Electronic Contract is only valid if:
1. there is an agreement between the parties;
2. conducted by legally competent person or the authorized representative pursuant to laws and regulations;
3. there is a specific subject; and
4. the transaction’s object is not in contrary to laws and regulations, decency and public order.
Furthermore, the Electronic Contract shall at least contains the followings: (i) identity of the parties; (ii) object and specification; (iii) requirements of the Electronic Transaction; (iv) price and cost; (v) procedure in the event of cancellation by the parties; (vi) provisions which give rights to the indemnified party to return the goods and/or request product replacement if there is hidden damages to the product; and (vii) choices of settlement for disputes arising from the Electronic Transaction.
GR No. 71/2019 requires any ESP to obtain electronic certificate. The “Electronic Certificate” means an electronic certificate that is issued by an Electronic Certification Provider, containing Electronic Signature and identity which indicates the legal status of the parties of the Electronic Transaction. In order to obtain the Electronic Certificate, the ESP shall submit an application to an Electronic Certification Provider in Indonesia. Further provisions on the procedure of obtaining the Electronic Certificate is governed under Minister’s regulations.
In general, an “Electronic Signature” means signature which consists of Electronic Information that are attached, associated or related to other Electronic Information which can be used as means of verification and authentication.
The Electronic Signature shall carry a valid legal force and consequences as long as it fulfills these following requirements:
1. data of the Electronic Signature is only related to the signatory;
2. data of the Electronic Signature upon the signing process is in the signatory’s possession;
3. any change to the Electronic Signature which occurred after signing can be identified;
4. there is a certain method that can be used to identify the signatory; and
5. there is a certain method to indicate that the signatory has granted his/her approval to the “sharing” of the relevant Electronic Information.
GR No. 71/2019 divides the Electronic Signature into two categories: (i) certified Electronic Signature; and (ii) uncertified Electronic Signature. Uncertified Electronic Signature is made without the services from Electronic Certification Provider. On the other hand, in order to be categorized as a certified Electronic Signature, it has to:
1. fulfill the validity of its legal force and legal consequence;
2. utilize Electronic Certificate issued by Electronic Certification Provider; and
3. be made using a certified manufacturing equipment .
Please also note that only Electronic Signature that is used by Indonesian-established Electronic Certification Provider shall be deemed as a certified Electronic Signature.