Rafisya R.

Fathanaila

Legal Review: Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction: Expected Positive Impacts and Potential
Challenges of Its Implementation

On December 5, 2023, the House of Representatives (Dewan Perwakilan Rakyat or "DPR")

endorsed the proposed legislation (referred to as the "Approved Bill") concerning the Second
Amendments to Law No. 11 of 2008 on Electronic Information and Transactions, previously
amended by Law No. 19 of 2016 (the "EIT Law"). Following the DPR's approval, there is a
30-day period for the President to formalize the Approved Bill into law. Subsequently, the
enacted law will undergo the drafting process and be officially published in the State Gazette
and the Supplement to State Gazette.

Considering the Draft Approved Bill, the aim of enacting it is to safeguard the digital realm in
Indonesia, ensuring legal certainty, justice, and protection of public interest against any
disruptions caused by the misuse of electronic information, electronic documents, information
technology, and/or electronic transactions that may disturb public order. Additionally, the
objective of enacting the Approved Bill is to preempt any potential multiple interpretations and
controversies in the application of the EIT Law.

This Newsflash addresses various amendments to the EIT Law as outlined in the Approved Bill.
We highlight key provisions of the Approved Bill below, based on the publicly available version.
It is important to acknowledge that corrections may occur during the enactment process, but
these adjustments are not expected to be of a substantive nature.

The Special Committee Meeting, as well as the Formulation Team (Timus) and the
Synchronization Team (Timsin), have completed discussions and agreed on changes to 14
existing articles and the addition of 5 articles. Some key points resulting from the discussions
include norm amendments covering electronic evidence, electronic certification, electronic
transactions, electronic seals, website authentication, and digital identity," he explained during
the First-Level Deliberation Working Meeting for Decision-Making on the Second Amendment
Bill of the ITE Law at Nusantara II Building, South Jakarta, on Wednesday (22/11/2023). The
Minister of Communication and Information also clarified that one of the changes in this Second
Amendment Bill of the ITE Law is an effort to ensure harmonization between criminal
provisions/sanctions in the ITE Law and the new national Criminal Code passed earlier this
year.1

1. Electronic Information and/or Electronic Documents

Electronic Information and/or Electronic Documents and/or printouts are valid legal evidence. in
accordance with the procedural law in force in Indonesia, in accordance with the provisions
regulated in this Law.2
1

https://www.kominfo.go.id/content/detail/53087/siaran-pers-no-484hmkominfo112023-tentang-ruu-peruba
han-kedua-uu-ite-menteri-budi-arie-14-pasal-eksisting-berubah-dan-5-pasal-tambahan/0/siaran_pers,
accessed on 11 January 2023.
2
Article 5 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic Information
and Transaction
 2. Electronic Certification Organizer

Every person has the right to use an Electronic Certification Provider to create an Electronic
Signature.3 Electronic Certification Providers must be Indonesian legal entities and domiciled in
Indonesia.4 However, it is excluded if the provision of services using Electronic Certificates is not
yet available in Indonesia.5

Mutual recognition to recognize Electronic Certificates between countries is based on

cooperation agreements. Electronic Certification Providers can provide services in the form of:6
● Electronic Signature;
● electronic seal;
● electronic timekeeping;
● registered electronic delivery services;
● website authentication;
● preservation of Electronic Signatures and/or electronic seals;
● digital identity; and/or
● other services that use Electronic Certificates.

3. Child Protection
Electronic System Operators are required to provide protection for children who use or
access the Electronic System.7 Protection regarding children is related to protection
regarding the use of products, services and features developed and maintained by
Electronic System Operators.8

Electronic System Operators are obliged to implement technology and operational

technical measures to provide protection as intended in paragraph (1) from the
development stage to the Electronic System Implementation stage.9
Electronic System Operators are required to provide:10
a. information regarding the minimum age limit for children who can use the
product or service;

3
Article 13 Paragraph 1 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
4
Article 13 Paragraph 3 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
5
Pasal 13 ayat 4 Article 13 Paragraph 4 of Second Amendment (enacted in 2023) on the law No. 11 of
2008 on electronic Information and Transaction
6
Article 13 A of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
7
Article 16 A paragraph 1 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
8
Article 16 paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
9
Article 16 paragraph 3 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
10
Article 16 paragraph 4 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
 b. child user verification mechanism; and
c. mechanism for reporting abuse of products, services and features that
violate or have the potential to violate children's rights.

4. Electronic Transaction Operator

Electronic Transactions can be carried out in the public or private sphere.11 The parties
must have good intentions.12 Electronic transactions that have high risk for the parties
use electronic signatures secured by electronic certificates.13

5. International Electronic Contracts

International Electronic Contracts that use standard clauses made by Electronic System
Operators are regulated by Indonesian law in terms of:14
a. (the user of the Electronic System Operator's services as a party to the Electronic
Transaction is from Indonesia and gives his/her consent from or within the
jurisdiction of Indonesia;
b. the place of execution of the contract is in the territory of Indonesia; and/or
c. The Electronic System Operator has a place of business or carries out business
activities in the territory of Indonesia.

6. Violations regarding electronic information and/or electronic documents

Every person intentionally and without right broadcasts, performs,
distribute, transmit, and/or make accessible Electronic Information and/or Electronic
Documents which have content that violates decency for public knowledge,15 violates
decency for public knowledge,16 attacks honor,17 with the intent of threatening violence,18
with threats of defamation or disclosure of secrets,19 misleading information which

11
Article 17 paragraph 1 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
12
Article 17 paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
13
Article 17 paragraph 2a of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
14
Article 18 A of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
15
Article 27 paragraph 1 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
16
Article 27 Paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
17
Article 27 A of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic
Information and Transaction
18
Article 27 B paragraph 1 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
19
Article 27 B Paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
 causes material losses to consumers in electronic transactions,20 causes hatred towards
certain groups,21 causes riots,22 threatens direct violence to victims and/or scares them.23

7. Government Obligations
The government protects the public interest from all types of disturbances resulting from
misuse of Electronic Information and Electronic Transactions which disrupt public order,
in accordance with the provisions of laws and regulations.24 The government has
Information Technology and Electronic Transaction facilities, and is obliged to stop the
dissemination and use, as well as termination of access to Electronic Information and/or
Electronic Documents that contain content that violates the law.25

In the event an electronic system provider does not conduct the obligations as ordered
by the Government, such an electronic system provider may be subject to an
administrative sanction in the form of (i) a written warning, (ii) administrative fines, (iii)
temporary suspension, and/or (iv) access termination.26

8. Criminal investigation
Apart from Investigators from the Republic of Indonesia State Police, certain Civil
Servant Officials within the Government whose scope of duties and responsibilities are in
the field of Information Technology and Electronic Transactions are given special
authority as investigators as intended in the Law on Criminal Procedure Law to carry out
investigations of criminal acts in the field of Information Technology and Electronic
Transactions.27 A civil servant investigator under the Approved Bill is now authorized to
instruct an electronic system provider to temporarily terminate access to the social media
account, bank accounts, electronic money, and/or digital assets.28

Conclusion:
In conclusion, while the recent revision of the IT Law represents a step forward, there remains a
concern that potential for criminalization, particularly for victims of online sexual and
gender-based violence, has not been entirely eliminated. The second amendment to the IT Law

20
Article 20 paragraph 1 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
21
Article 28 paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
22
Article 28 Paragraph 3 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
23
Article 29 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on electronic Information
and Transaction
24
Article 40 paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
25
Article 40 paragraph 2b of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
26
Article 16 b paragraph 2 of Second Amendment (enacted in 2023) on the law No. 11 of 2008 on
electronic Information and Transaction
27
Article 43 paragraph 1
28
Article 43 paragraph 5 (j)
is anticipated to contribute to a better acknowledgment and respect for users' rights, fostering an
environment that optimizes the responsible use and engagement with information technology.
Continued efforts and vigilance are crucial to address any remaining challenges and ensure a
balanced legal framework that protects individuals from harm while upholding their rights in the
digital realm.