The revision of the EIT law was driven by a desire to establish a greater sense of public justice and legal certainty. The need for this revision became apparent as the prior version led to multiple interpretations and controversies within the community.
The amendment reflects the government's commitment to adapting to the changing landscape of digital transactions and online activities within the country. Overall, the EIT law is designed to protect individual rights in online spaces, regulate electronic transactions, and employ punitive measures to uphold its provisions.
Specifically, the amendment made changes to various provisions in the previous draft. These changes include: (i) enhancing the protection of minors in electronic systems access, and (ii) specifying the governing law for international electronic contracts. Below is our summary of the key highlights of the amendment.
Protection of minors in electronic systems access
The recent amendment brings forth new provisions aimed at ensuring the protection of children using electronic systems. Electronic System Providers (ESP) are now obligated to furnish comprehensive information, including:
- details regarding the minimum age criteria for eligibility to utilize their products or services;
- implementation of a verification mechanism tailored for child users;
- establishment of a reporting mechanism for instances of misuse involving products, services, and features that violate or have the potential to violate the rights of children.
The newly introduced provision underscores that, according to the amendment, the ESP is obligated to prioritize child protection over its commercial interests. The scope of child protection encompasses safeguarding personal data, privacy, and the overall safety of the child - both physically and mentally - against the misuse of electronic information and/or documents that infringe upon the child's rights.
The distinct emphasis on prioritizing child protection even at the expense of the commercial interests of ESP reflects a noteworthy alignment with the approach taken by countries in Europe and the United States, indicating the government's intention to establish a protective framework in online spaces towards children.
Further clarification within the provision emphasizes that non-compliance with these requirements may lead to sanctions, such as written warnings, administrative fines, temporary suspension, and/or termination of access for the ESP.
The governing law of international electronic contracts
The amendment of the EIT law also introduces new provisions relating to the applicability of Indonesian law towards international electronic contracts which use standardized clauses if:
- the service user, as one of the parties involved in the electronic transaction, originates from Indonesia and consents within its jurisdiction;
- the contract is executed within Indonesia; and/or
- the ESP has a place of business or conducts electronic transactions within the Indonesian jurisdiction.
If an ESP fulfils any of the specified requirements, the international electronic contract it enters into shall be subject to Indonesian law, and the application of Indonesian law extends to cover dispute resolution. Moreover, the electronic contract must be concluded in language that is straightforward, clear, and easily comprehensible, while also upholding the principles of good faith and transparency.
This provision is designed with the intention of safeguarding ESP users in Indonesia by ensuring their access to an effective and efficient legal system when utilizing the services or products offered by the ESP. The precise details of how this provision will be put into practice remain uncertain, as it is still in the early stages of development.
It is interesting to closely monitor the implementation of the newly introduced provisions under the amendment to the EIT law, as they hold significant implications for the protection of children, the governance of international electronic contracts, and the overall legal landscape surrounding electronic transactions.
Authored by Mochamad Kasmali, Karina Antonio and Andera Rabbani.