22 November, 2016
Introduction
On 27 October 2016, the Indonesian parliament amended Law No. 11 of 2008 on Electronic Information and Transactions (EIT Law) (Amendment Law), and defined terms in this client alert are those under the EIT Law. The Amendment Law will become effective on the earlier of the date it is signed by the President or on 27 October 2016.
The Amendment Law
- addresses defamation (e.g., by revising the sanctions);
- synchronizes the procedural law provisions under the EIT Law with the Criminal Procedural Law;
- strengthens the role of the civil servant investigators in conducting raids and corporate investigations;
- adds provisions on the right to be forgotten; and
- strengthens the role of the Government in preventing disturbances due to a misuse of electronic information and transactions and otherwise controlling electronic information (generally in respect of negative content).
While the Amendment Law was being deliberated for the last 2-3 years, the right to be forgotten was inserted at the request of the Parliament only a week before the Amendment Law was passed (somewhat surprising given a proposed Privacy Law and a draft regulation on personal data protection
which were intended to cover the right to be forgotten).
The amendments in the Amendment law are not substantial and only related to a few concepts and existing provisions in the EIT Law, however these are significant amendments.
Main Provisions of the Amendment Law
Right to be forgotten
The Amendment Law introduces the concept of the right to be forgotten. There are only 3 provisions on the right to be forgotten (with no further elucidation). As is usual in Indonesia, further implementation provisions will be set out in a Government Regulation (which can take time, although the Government has publicly stated that the Government Regulation will be issued at the beginning of 2017).
Under the Amendment Law, Electronic System Operators must delete irrelevant Electronic Information and/or Documents under their control at the request of the relevant person, however the right can only be exercised based on a court decision. Further, Electronic System Operators must have a deletion mechanism for Electronic Information and/or Documents.
The Amendment Law provisions are very general and it is not clear how the right to be forgotten will be implemented until the Government Regulation is issued. The Ministry of Communications and Informatics ("MOCI") has indicated publicly that the Government Regulation will contain sanctions if there is non-compliance and intends to ensure that offshore Electronic System Operators comply, bearing in mind the EIT Law purports to have extraterritorial reach.
For offshore internet companies the issue will be the Government's capacity to enforce offshore – with the only real enforcement being the blocking of internet sites.
Internet companies should monitor the proposed Government Regulation and start now lobbying what might be contained in the Government Regulation to ensure that there is due process and the mechanisms are practical and not unduly onerous to implement.
Criminal Investigations
The Amendment Law gives additional authorities to civil servant investigators. Civil servant investigators can request information in or made by Electronic Systems and can receive reports about, investigate and arrest internet users suspected of violating the law generally.
In addition, investigators are also authorized to restrict access to Election Data or Electronic Systems that are engaged in criminal conduct such as cybercrime, and are authorized to carry our raids (without a court warrant).
This is a significant broadening of power, and time will tell if the new authorities are exercised judiciously.
Electronic Information and Documents as Evidence
While the Indonesian courts are known to be slow in accepting electronic evidence and still prefer to see hard copy documents, the Amendment Law re-emphasizes that Electronic Information and Documents are binding and can be used as evidence in court.
This is not a new concept and has existed and only reinforces the requirement that Indonesian courts accept e-evidence and contracts.
As an aside, as the Government increasingly goes on line itself, it is in the Government's interest to ensure that Indonesian courts accept e-evidence and contracts.
Government's Right to Terminate Access
The Amendment Law gives the Government a right to terminate access and/or order Electronic System Operators to terminate access to Electronic Information and/or Documents with content that violates the law.
There is a current Negative Content Regulation issued by the Minister of Communications and Informatics, which authorizes the MOCI to block internet websites with negative content based on reports from the public, Government institutions or law enforcement authorities.
The Amendment Law has included a similar right (although without the need for reports to be made to the MOCI) and now the Negative Content Regulation has a firmer legal basis on which the MOCI can act.
The Amendment Law provides that there will be a Government Regulation implementing these provisions, however in the absence of the implementing regulation, it is likely the MOCI will continue to use the Negative Content Regulation issued by the Minister of Communications and Informatics.
Reduced Sanctions
Generally the sanction for matters, such as defamation, have been reduced to less than 5 years, which removes the right of law enforcers to detain people suspected of these crimes. This removes a contentious issue that alleged breaches of the law for acts such as defamation, which is a criminal
offense in Indonesia, easily resulted in detention.
Provisions of Amendment Law
1. Defamation: The Amendment Law lessens the risk of multiple interpretations and avoid abuse of power as regards distributing and/or transmitting and/or making accessible defamatory Electronic Information by making the following four amendments:
a. Adding the definition of the term "distribute, transmit and make accessible Electronic information and/or Electronic Document"
"Distributing" means sending and/or disseminating Electronic Information and/or Documents to many people or various parties through an Electronic System.
"Transmitting" means sending Electronic Information and/or Documents to another party through an Electronic System.
"Making Accessible" means all actions, other than Distributing and Transmitting, through Electronic Systems that cause Electronic Information and/or Documents to be known by other parties or the public.
b. Stating that what is regulated in the provision is a crime by accusation not a general offense (so a report has to be made by the offended party).
c. Stating that many provisions defer to the defamation and humiliation provisions in the Criminal Code.
d. Reducing criminal sanctions from a maximum of six years of imprisonment and a fine of Rp1 billion to four years of imprisonment and a fine of Rp750 million.
2. E-Evidence/Interception: The Amendment Law implements a Constitutional Court decision by making the following two amendments:
a. Amending Article 31 (4) of the EIT Law so that the procedure of intercepting or tapping is now regulated under law.
b. Adding an elucidation to Articles 5 (1) and 5(2) to make it clear that Electronic Information and/or Electronic Documents are valid legal evidence.
The new elucidation to Article 5 (1) of the EIT Law now makes it very clear that the Electronic Information and/or Documents is/are binding and are valid evidence.
The new elucidation to Article 5 (2) of the EIT Law now specifically provides that Electronic Information and/or Documents from a communication interception, tapping or recording must be done within the framework of law enforcement at the request of the police, attorney general and/or other institutions that have the authority to do so under the law.
3. Criminal Procedural Law: The Amendment Law synchronizes the procedural law provisions with the Criminal Procedural Law by making the following two amendments:
a. Article 43 (3) of the EIT Law on Search and/or Seizure is readjusted in line with the Criminal Procedural Law.
The amendment effectively defaults to the more detailed provisions under the Criminal Procedural Law on search and/or seizure, e.g., in some cases the Criminal Procedural Law allows investigators to conduct searches and/or seizure without prior approval from the District Court (so the previous explicit court order requirement in the EIT Law has been deleted).
b. Article 43 (6) of the EIT Law on arrest and detention is readjusted in line with the Criminal Procedural Law.
The amendment effectively defaults to the more detailed provisions under the Criminal Procedural Law on arrest and detention, e.g., in a case where a suspect is caught in the act, a prior order from the District Court is not required. So the previous explicit court order requirement in the EIT Law has been deleted.
4. Civil Servant Investigators: The Amendment Law strengthens the role of civil servant investigators provided in Article 43 (5) of the EIT Law by adding the following additional authorities that can be exercised by civil servant investigators:
a. the authority to restrict or terminate access to data and/or Electronic System that are related to criminal conduct; and
b. the authority to request information in or made by Electronic Systems related to criminal conduct from Electronic System Operators.
5. Right to be Forgotten: The Amendment Law adds provisions on "the right
to be forgotten" in Article 26 of the EIT Law as follows:
a. Each Electronic System Operator must delete irrelevant Electronic Information and/or Electronic Documents that are under its control upon the request of the relevant person. Such request must be backed by a court stipulation.
b. Each Electronic System Operator must provide deletion mechanisms for any Electronic Information and/or Electronic Documents that are not relevant anymore in accordance with the
laws and regulations.
c. The provisions on the Electronic Information and/or Electronic Documents deletion mechanisms are further regulated in a Government Regulation.
6. Unlawful Content – Termination of Access: The Amendment Law strengthens the role of the Government in preventing unlawful content by inserting additional provisions in Article 40 of the EIT Law:
a. The Government must prevent any dissemination and use of Electronic Information and/or Electronic Documents that has restricted content, in accordance with the laws and regulations.
b. In conducting the above prevention, the Government is authorized to terminate access and/or order Electronic System Operators to terminate access to Electronic Information and/or Electronic Documents that have unlawful content.
Conclusion
The amendments in the Amendment Law are not substantial and only relate to a few concepts and existing provisions in the EIT Law, however these are significant amendments.
While certain new provisions will require implementing regulations, and the MOCI has indicated these will be issued in 2017, the Amendment Law introduces some key provisions, some of which would be welcomed (such as reducing the defamation sanctions, ensuring interception in done in accordance with law and reaffirming the validity of e-evidence and contracts) but others such as the extended power for civil servant investigators will not be as welcomed unless there are checks and balances introduced and there is no abuse of power.
For commercial entities the key issues are:
- the introduction of the right to be forgotten and the requirement to have in place systems to delete information if a court decision requires this; and
- perhaps greater scrutiny in the future by the MOCI on negative content (and the removal of negative content).
