After long waiting finally on last 25 March 2008, Indonesian legislative approved the proposed draft on Electronic Information and Transaction Law (UU ITE) to accommodate the need on security environment and legal assurance for any business and transaction held electronically through cyberworld.
The respective law has drawn public’s attention to some issued covered, as its final enactment may give certain implications to e-business transactions which have been carried out in nowadays prior to its existence.
Indonesian Cyberlaw is different from other major countries’ cyberlaw and UNCITRAL Model Law, because it is covering general issues from contractual issues, intellectual property rights, evidentiary aspect and material, content regulation, cyber squatting or cybercrime, to personal data protection (PDP) until consumer protection.
A revolutionary on evidentiary aspects is introduced under this law by recognizing electronic information and/or electronic document and/or printed product can be admitted as a legal evidentiary material under Indonesia legal practice but such enhancement should be exceptionable for certain legal documents such as bonds, marriage certificate and land certificate or other documents related to legal enforcement and state administrative. As you may learn that evident materials under Indonesian Law are still stick to the Dutch’s heritage rules as refer to Civil and Criminal Code.
In regard to Consumer Protection, the law sets up that every product, which being offered electronically shall be informed accurately and completely with respect to contract requirements, manufacturer and product information. Businessmen who carry out Electronic Transaction could be certified by a reliability certificate body which is admitted, legalized and supervised by government with authorization to issue a reliable certificate used for Electronic Transaction. Anyone who deliberately and without rights circulating unfaithful information which cause profit loss for customer doing Electronic Transaction will be subject to 6 years imprisonment and/or maximum fines for one billion rupiah.
The contracting parties have a freedom to choose the governing law shall be applied to their electronic transaction. However, when none of choice of law is taken by the parties involved, then the International Civil Law will be enacted for their international electronic transaction, including the freedom in selecting the dispute settlements when the dispute arises, it is varied from civil action with the class action to ADR or arbitration which is available to be an option to seek legal settlement when consumer experiences with profit loss as a result of using the electronic system. Provisions in regard to protection for Intellectual Property, Domain Name and Personal Data Protection are covered inconsiderably. In fact, such issues need to be enlightened further because currently we are in limitation regulation on domain name and personal data protection, even under our existing IPR laws, this issues have not been covered yet.
While waiting for its official enactment, various public responses arise attractively following the legislatives approval to this law, particularly from the Press Council in regard to the content regulation and related penalty imposed thereto, which seems to be considered threatening press freedom.
To this condition, Press Council intends to file a review to the Constitutional Court, due to the existence of Art 27 (30) : “Anyone who deliberately and without rights distributes and/or transmits and/or makes accessible Electronic
Information and/or Electronic Document with contents defamatory” and Art 45 “ It subjects to 6 years imprisonment and/or maximum fines for one billion rupiah. This review proposal is also supported by the development on international legal practice revising currently revising that defamation and humiliation shall be categorized under civil law due to its nature which emotional and relative.
For further detail and comment please write to: Rahajeng Handayani
SS&R Legal Consultants
Ariobimo Sentral, The MezzanineFloor
Jl. HR Rasuna Said Kav X-2 No. 5
Jakarta 12950, Indonesia
T: +6221 5264715, 2525835
F: +62 21 2525760