Juridical Analysis of the Validity of Electronic Signatures under Indonesian Law

As technology grows, the way we sign contracts is shifting dramatically from traditional physical paperwork to online agreements. Because of this, electronic signatures have become essential tools for proving consent without ever needing to meet in person.

The development of information technology has driven a significant transformation in the practice of agreements, from those based on physical documents to electronic agreements. Based on this, the use of electronic signatures becomes a crucial element to represent the consent of the parties without physical presence or through online means. Therefore, the use of eletronic signatures becomes important to be analyzed since it constitutes one of the crucial elements in electronic agreements in Indonesia. Accordingly, this article will discuss the matter normatively using legal bases and jurisprudence in Indonesia.

Regulatory Framework of Electronic Signatures

An electronic signature (“ES”) is defined as a signature consisting of electronic information that is attached to, associated with, or related to other electronic information used as a means of verification and authentication. ES functions as a tool for authentication and verification of the identity of the signer and the integrity and authenticity of electronic information. Based on this, it can be understood that ES constitutes electronic information which is a valid legal means of evidence. However, it must comply with the provisions stipulated in the Law Number 11 of 2008 concerning Electronic Information and Transactions (“EIT Law”) and the relevant Government Regulations.

In Article 59 paragraph (3) of the Government Regulation of the Republic of Indonesia Number 71 of 2019 concerning the Legal Framework for Electronic Systems and Transactions (“GR of EST”) regulates the requirements for an ES to have legal force and legal effect, as follows:

1. The data for the creation of the ES is linked only to the signer;
2. The data for the creation of the ES at the time of the electronic signing process is only under the control of the signer;
3. Any changes to the ES that occur after the time of signing can be detected;
4. Any changes to the electronic information related to the ES after the time of signing can be detected;
5. There is a certain method used to identify the signer; and
6. There is a certain method to indicate that the signer has given consent to the related electronic information.

There are 2 (two) types of ES, namely certified ES and uncertified ES. For certified ES, it must:

1. Fulfill the validity requirements of legal force and legal effect of ES as explained in Article 59 paragraph (3) GR of EST;
2. Use an electronic certificate issued by an Indonesian Electronic Certification Provider (“ECP”); and
3. Be created using a certified ES Creation Device.

However, uncertified ES is created without using the services of a ECP. As explained above, a ECP is a legal entity that functions as a trusted third party responsible for issuing and auditing electronic certificates. In order to operate, a ECP must obtain recognition from the minister administering governmental affairs in the field of communication and informatics and must be affiliated with the Root ECP administered by the minister.

Read More: Fingerprints as Signatures in Indonesia

Based on the above, it must be underlined that not only certified ES are valid or have binding legal force, but all ES that have fulfilled Article 59 paragraph (3) GR of EST. However, the legal consequences arising from the use of certified and uncertified ES affect their evidentiary value. Nevertheless, no further regulation has been found regarding the difference in evidentiary value between certified and uncertified ES.

It should also be understood that there are ES issued on behalf of business entities, which are referred to as electronic seals. An electronic seal is electronic data attached to, associated with, or related to electronic information and/or electronic documents to ensure origin, integrity, and completeness used by a Business Entity or Institution. Similar to ES, in order for an electronic seal to possess valid legal force and legal consequences, it must fulfill the requirements set out under Article 59 paragraph (3) GR of EST as described above.

From the explanation above, it can be understood that ES issued in the name of individuals and business entities possess binding legal force and valid legal consequences, provided that they comply with the requirements described above.

Closing

Through the regulations under the EIT Law and its implementing regulations, ES has obtained recognition as valid legal evidence and possess binding legal force, provided that they fulfill the validity requirements stipulated under the prevailing laws and regulations. Therefore, the validity of ES serves as an essential legal instrument in an electronic agreement.

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Source:

• Law Number 11 of 2008 concerning Electronic Information and Transactions
• Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 on Electronic Information and Transactions
• Government Regulation of the Republic of Indonesia Number 71 of 2019 concerning the Implementation of Electronic Systems and Transactions