The Second Amendment to the ITE Law Sets a Number of New Provisions

The second amendment to the Information and Electronic Transactions (ITE) Law was signed by President Joko Widodo on January 2 2024. The name was changed to Law Number 1 Year 2024 concerning the Second Amendment to Law Number 11 of 2008 concerning Information and Electronic Transactions.

As published on the State Secretariat's JDIH page, the 2024 ITE Law reveals three reasons for this second revision. First, some people admitted that they objected to several criminal provisions. For example, Article 27 paragraph (3) and Article 28 paragraph 21 have been submitted several times to the Constitutional Court for material review.

Second, the first amendment, namely the ITE Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Electronic Information and Transactions, is considered to have not resolved the problem. Third, a number of articles are considered to have multiple interpretations so that subjects that should not be targets can be targeted.

2024 version changes

According to the JIDH website of the Coordinating Ministry for Maritime Affairs, the 2024 ITE Law contains seven (7) new articles including Articles 13A, 16A, 16B, 18A, 27A, 27B, and 40A. Some of them received a positive response because they regulate the use of electronic signatures, including child protection.

Article 13 is amended; acknowledge the use of electronic signatures. As explained in Article 13A, Electronic Certification Providers (PSE) can provide services in the form of:

1. Electronic Signature
2. Electronic seal
3. Electronic time stamp
4. Registered electronic delivery service
5. Website authentication
6. Preservation of Electronic Signatures and/or electronic seals
7. Digital identity; and/or 
8. other services that use Electronic Certificates. 

Article 17 paragraph (1) is amended; between paragraph 2 and paragraph 3, paragraph 2a is inserted.

1. Paragraph 1 states that Electronic Transactions can be carried out in the public or private sphere.
2. Paragraph 2 states that parties carrying out Electronic Transactions as intended in paragraph (1) are required to have good faith in interacting and/or exchanging Electronic Information and/or Electronic Documents during the transaction.
3. Paragraph 2a contains Electronic Transactions which have a high risk for the parties using Electronic Signatures secured by Electronic Certificates.

Article 16 and Article 17 2 (two) articles were inserted, namely Article 16A and Article 16B related to child protection, including child user verification mechanisms and reporting mechanisms.

1. In Article 16A paragraph 1, PSE provides protection for children who use or access Electronic Systems.
2. In Article 16A paragraph 2, protection as referred to in paragraph (1) includes protection of children's rights as intended in statutory regulations regarding the use of products, services and features developed and operated by PSE.
3. In Article 16B paragraph 1, violations of the provisions referred to in Article 16A are subject to administrative sanctions.
4. In Article 16B paragraph 2, administrative sanctions as referred to in paragraph 1 can be in the form of (a) written warning, (b) administrative fine, (c) temporary suspension, and/or (d) termination of access.

Negative reaction

The second amendment to the ITE Law drew strong public reactions. According to digital democracy expert and founder of SAFEnet Damar Juniarto, this second revision does not answer the root problem of why the ITE Law needed to be revised in the first place. This is because the articles related to defamation, hate speech and threats still exist even though they have been amended to be similar to Article 1 of the Criminal Code of 2023.

"In fact, President Jokowi previously stated that he would ask the legislature to revise the ITE Law if it caused injustice. Instead of abolishing it, Commission 1 of the DPR and Kominfo actually maintained these problematic articles. This could threaten freedom of expression and trigger potential criminalization," criticized Damar in LinkedIn page-New.

He mentioned several additional new articles and verses that had the potential to trigger problems, including (1) Article 27B regarding threats of defamation, (2) Article 28 paragraph 3 about disinformation causing riots, and additionally paragraph 1 in Article 43 which contains the granting of authority to Civil Servant Officials to carry out online censorship, take down, and deletion of social media accounts, closure of bank accounts, and more.

"From this, I tend to judge that we still need to revise the ITE Law at least once to resolve the problem of injustice in it."