Introduction

On 2 January  2024, Law Number 1 of 2024 on the Second Amendment to Law Number 11 of 2008 on Electronic Information and Transactions (“EIT Second Amendment”) was officially promulgated and came into effect in Indonesia. The issuance of the EIT Second Amendment aimed to accommodate the era of digital transformation that continues to develop and address public concern regarding certain articles under the current Law Number 11 of 2008 on Electronic Information and Transactions as amended by Law Number 19 of 2016 (altogether referred to as “EIT Law”), which is perceived to impede the freedom of expression of the public.1

Below are the key provisions amended by the EIT Second Amendment:

  1. The Implementation of Electronic Certification
    EIT Second Amendment amends the provision of Article 13 EIT Law regarding the Electronic Certification Provider (Penyelenggara Sertifikasi Elektronik – PSE”), which was previously classified into Indonesia PSEs and Foreign PSEs. Under the EIT Second Amendment, however, it is now limited to Indonesia PSEs, namely PSEs that are domiciled in Indonesia and legally established in Indonesia. Nevertheless, the EIT Second Amendment provides an exception to the requirement of being an Indonesian legal entity if PSEs offer electronic certification services that are not yet available in Indonesia. Furthermore, the EIT Second Amendment has also established clear limitations regarding the scope of activities that PSEs can carry out. These limitations include the following: (i) electronic signatures; (ii) electronic seal; (iii) electronic time stamping; (iv) registered electronic delivery services; (v) website authentication; (vi) preservation of electronic signatures and/or electronic seals; (vii) digital identity; and/or (viii) other services that utilize electronic certificates.2
  2. Protection of Children Using Electronic Systems
    The EIT Second Amendment introduces Articles 16A and 16B, which regulate the provisions related to the protection of children using electronic systems along with the sanctions for violations. The provisions include obligations for PSEs to provide information on minimum age limits, mechanisms for verifying child users, and mechanisms for reporting violations that may infringe upon the children’s rights. Additionally, it is explained in the Elucidation of Article 16A EIT Second Amendment that child protection must be prioritized over PSE’s commercial interests.
  3. Protection of High-Risk Transactions
    EIT Second Amendment introduces one additional paragraph to Article 17, requiring the use of electronic signatures protected by electronic certificates for transactions deemed as high-risk, which include financial transactions that are not conducted face-to-face physically.
  4. International Electronic Contracts Containing Standard Clauses
    EIT Second Amendment introduces more specific provisions regarding international electronic contracts made by PSE under Article 18A. This article stipulates that Indonesian law applies to international electronic contracts with standard clauses made by PSE in the event that (i) one of the parties to the electronic transaction is an Indonesian national and grants its approval from Indonesian jurisdiction, (ii) the location of contract implementation is within Indonesian territory, and/or (iii) PSE has a place of business or carries out business activities in Indonesia.
  5. Adjustment and Improvement to Criminal Provisions
    The EIT Second Amendment introduces significant adjustments and improvements to the punishable criminal offenses that were regulated under the EIT Law. The amended provisions in the EIT Second Amendment also refer to the Joint Decree of the Minister of Communication and Informatics, the Attorney General, and the Chief of the Indonesian National Police Force Number 229, 154, KB/2/VI/2021 of 2021 (“Joint Decree”).
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Electronic Information and/or Documents that Violate Decency

EIT Law EIT Second Amendment
Any Person who intentionally and illegally distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents that contain content that violates decency. Any Person who intentionally and illegally broadcasts, demonstrates, distributes, transmits, and/or makes accessible Electronic Information and/or Electronic Documents that contain content that violates decency for the public interest.

Remarks:
The provisions under Article 27 paragraph (1) have been expanded to also encompass the act of broadcasting, demonstrating, and/or displaying electronic information and/or documents that violate decency. EIT Second Amendment also imposes a limitation that this regulation does not cover acts intended for personal interest by adding the phrase ‘for public interest’. The EIT Second Amendment also regulates the reasons for criminal abolition through the additions of provisions in Article 45 paragraph (2) EIT Second Amendment, which actions specified in Article 27 paragraph (1) EIT Second Amendment will not be criminally punishable if: (i) conducted out for the public interest; (ii) conducted as a form of self-defense; or (iii) the relevant electronic information and/or documents are works of art, culture, sport, health, and/or science. The EIT Second Amendment does not provide further explanation regarding the exceptions stipulated in Article 45 paragraph (2), but refers to the Joint Decision and Academic Manuscript, the socio-cultural context and the purpose of content containing decency must be taken into account to determine if an act can be categorized as intended in Article 27 paragraph (1) EIT Second Amendment.

Electronic Information and/or Documents that Contain Gambling-Related Content

EIT Law EIT Second Amendment
Any Person who intentionally and illegally distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents that contain content that violates decency.

Remarks:
The provisions under Article 27 paragraph (2) EIT Law remain unchanged by the EIT Second Amendment. The criminal sanction for violations of Article 27 paragraph (2) has however been increased. Previously, under the EIT Law, the imprisonment penalty was for maximum of 6 (six) years and/or a fine of up to Rp1bilion Rupiah. Whereas, with the EIT Second Amendment, the imprisonment penalty is now for a maximum of 10 (ten) years and/or fine of up to Rp10 billion Rupiah.3

Electronic Information and/or Documents that Attacking Honor or Reputation

EIT Law EIT Second Amendment
Any Person who intentionally and illegally distributes and/or transmits and/or made accessible Electronic Information and/or Electronic Documents which contain offensive and/or defamation content. Any Person who intentionally attacks the honor or good name of another person by way of accusing something with the intention that it is known to the public in the form of Electronic Information and/or Electronic Documents which are conducted through Electronic Systems.

Remarks:
The provisions related to the prohibition of attacking the honor or reputation of others in the form of electronic information and/or documents through electronic systems were previously regulated in Article 27 paragraph (3) EIT Law, which is now addressed separately under Article 27A EIT Second Amendment.

The EIT Second Amendment also regulates the reasons for criminal abolition through the additions of the provision in Article 45 paragraph (7) EIT Second Amendment, which actions specified in Article 27A EIT Second Amendment will not be criminally punishable if: (i) conducted out for the public interest; or (ii) conducted as a form of self-defense. The Elucidation of Article 45 paragraph (7) EIT Second Amendment states that conducted out for public interest means an action to protect the interest of the public expressed through the right to expression and democracy (i.e. through a demonstration or criticism). EIT Second Amendment has provided legal certainty regarding the right to expression and the right to participate democratically through criticism and demonstrations, which has been a concern to the public.

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Additionally, the criminal sanctions for violations of Article 27A EIT Second Amendment have been reduced. Previously, under the EIT Law, the imprisonment penalty was for a maximum of 4 (four) years and/or a fine of up to Rp750 million. Under the EIT Second Amendment, the imprisonment penalty is now for a maximum of 2 (two) years and/or fine of up to Rp400 million. EIT Second Amendment also adds a provision that if the act of attacking the honor or reputation of others cannot be proven and contrary to what is known, despite being given the opportunity to prove it, the act is punishable as slander.

EIT Second Amendment also emphasizes that the provisions of Article 27A EIT Second Amendment are complaint offenses (delik aduan) and can only be pursued by the victim and not by legal entities. It is possible that this provision is intended to prevent excessive criminalization.4

 

Electronic Information and/or Documents that Contain Threat of Violence or Threat of Revealing Secret

EIT Law EIT Second Amendment
Any Person who intentionally and illegally distributes and/or transmits and/or makes accessible Electronic Information and/or Electronic Documents that contain extortion and/or threat.
  1. Any Person who intentionally and illegally distributes and/or transmits Electronic Information and/or Electronic Documents with the intention to unlawfully benefit themselves or others, forcing persons
    with threats of violence to:

    1. give any goods whose partially or entirely owned by the said person or owned by another person; or
    2. grant debt, make debt acknowledgment, or write off receivables.
  2. Any Person who intentionally and illegally distributes and/or transmits Electronic Information and/or Electronic Documents with the intention to unlawfully benefit themselves or others, with the threat of defamation or with the threat of disclosure of secrets, forcing persons to:
    1. give any goods whose entirely or partially owned by the said person or owned by another
      person; or
    2. grant debt, make debt acknowledgment, or write off receivables.

Remarks:
Article 27B EIT Second Amendment was previously regulated under Article 27 paragraph (4) EIT Law. Article 27B Second Amendment has the potential to minimize threats carried out by debt collectors against customers.5 Article 27B EIT Second Amendment is a complaint offense (delik aduan) that can only be processed if there is a report from the direct victim of the crime.

 

Electronic Information and/or Documents that Contain False News

EIT Law EIT Second Amendment
Any Person who intentionally and illegally spreads false and misleading news resulting in consumer losses in Electronic Transaction. Any Person who intentionally distributes and/or transmits Electronic Information and/or Electronic Documents which contain false notification or misleading information that results in material losses for consumers in Electronic Transactions.

Remarks:
Through the Second ITE Amendment, there is an adjustment to Article 28 paragraph (1) in terms of the language used. The change in Article 28 paragraph (1) through the Second ITE Amendment emphasizes that the element of loss experienced by consumers, which must be proven in court, is material loss.

 

Electronic Information and/or Documents that Incite Individuals and/or Group

EIT Law EIT Second Amendment
Any Person who intentionally and illegally spreads information intended to cause hatred or hostility to certain individuals and/or certain groups of people based on ethnicity, religion, race, and inter-groups. Any Person who intentionally and illegally distributes and/or transmits Electronic Information and/or Electronic Documents that instigate, invite, or influence other persons to cause hatred or hostility against certain individuals and/or community groups based on race, nationality, ethnicity, skin color, religion, belief, gender, mental disability, or physical disability.

Remarks:
The Second ITE Amendment provides significant changes by expanding the scope to include individuals and/or groups, not only based on Race, Religion, Ethnicity, and Inter-group Relations (Suku, Agama Ras, Antargolongan – “SARA”) but also including nationality, skin color, beliefs, gender, as well as mental and physical disabilities.

 

Electronic Information and/or Documents that Contain Fake Information that Leads to Public Disturbances

EIT Law EIT Second Amendment
Not regulated. Any Person who intentionally disseminates Electronic Information and/or Electronic Documents that are known to contain false notification that causes a riot in the public.

Remarks:
The provisions regarding false information that leads to public disturbances are new provisions added under Article 28 paragraph (3) EIT Second Amendment. All forms of spreading false information that impact public order can be subject to criminal penalties under the provisions of Article 28 paragraph (3) EIT Second Amendment.

 

Electronic Information and/or Documents that contain Threat of Violence and/or Intimidation Directly to a Victim

EIT Law EIT Second Amendment
Any Person who intentionally and illegally sends Electronic Information and/or Electronic Documents that contain personally aimed threats of violence or intimidation. Any Person who intentionally and illegally sends Electronic Information and/or Electronic Documents directly to the victim which contain threats of violence and/or intimidation.

Remarks:
Article 29 EIT Second Amendment is intended to ensnare perpetrators of cyberbullying. This is explicitly stated in the Elucidation of Article 29 EIT Second Amendment, which previously was not explained in the EIT Law.

Closing

EIT Second Amendment represents the government’s effort to accommodate technological advancements and public’s criticisms on the implementation of EIT Law which among others considered as tool for criminalization. It is hopeful that this EIT Second Amendment will overcome problems related to provisions that might have multiple interpretations or detrimental interpretations to the public.

Ardelia Ignatius

Sources

  1. https://www.kominfo.go.id/content/detail/53385/siaran-pers-no-534hmkominfo122023-tentang-perubahan-kedua-atas-uu-ite-sah-menteri-budi-arie-jamin-kepastian-hukum-ruang-digital/0/siaran_pers
  2. Article 13A EIT Second Amendment
  3. Article 45 paragraph (3) EIT Second Amendment
  4. National Legal Development Agency of the Ministry of Law and Human Rights, Academic Manuscript of the Bill on the Second Amendment to Law Number 11 of 2008 on Electronic Information and Transactions, p.97
  5. Bisnis Tekno, “Revisi UU ITE, Sanksi Pidana Intai Pinjol Penebar Data Nasabah ke Debt Collector”, accessed through https://teknologi.bisnis.com/read/20231124/84/1717696/revisi-uu-ite-sanksi-pidana-intai-pinjol-penebar-data-nasabah-ke-debt-collector on 25 January 2024