THE ONLINE PLATFORM/THE OPERATION OF PRIVATE ELECTRONIC SYSTEM

The Minister of Communication and Informatics (“MOCI”) has recently issued a regulation No. 5/2020 regulating the operation of Private Electronic System Operator  (Penyelenggara System Elektronik Lingkup Privat) by individuals, business entities or community (“Private ESO”) as an implementing regulation of the Government Regulation No. 71/2019 on Electronic System and Transaction Operation. 

This MOCI Regulation stipulates among other about:

1. The Obligations of Private ESO

The following are some of Private ESO’s obligations under MOCI Regulation, that it must:

(a) ensure its electronic system does not facilitate the dissemination  of prohibited/illegal electronic information and/or prohibited/illegal electronic document (“online content”).

(b) register its electronic system (“online platform”) at MOCI through the OSS/online single submission.

(c) take down prohibited/illegal online content.

(d) cooperate with the competent authority by opening the  access of  its online platform and/or electronic data  for the purpose of monitoring and criminal law enforcement.

(e) have and implement management and moderation rules of the online content by among other providing user guidance in Indonesian language.

Note:

Illegal content means the content is violating law and regulations, or the content causes public unrest and disturbance, or the content is providing information on how to obtain or to access prohibited content.

2. Categorization of Private ESO

MOCI regulation categorizes Private ESO as follows:

2.1 Private ESO which is under supervision of  Ministry or Government’s institution.  

2.2 Private ESO that owns portal, site, or application that provide, manage and/or operate:

2.3 Foreign Private ESO namely, private ESO which is established or domiciled outside Indonesia but, before enactment of this MOCI regulation it has provided services in Indonesian territory or, it will provide services in Indonesian territory or, it carries out business in Indonesian and/or its online platform is used and/or offered in Indonesian territory.

2.4 Private ESO that provides User-Generated Content/UGC namely the online platform which enables the users to post or upload their own content.

In addition to the general obligations of Private ESO mentioned above, this ESO is also subject to additional obligations which among other the obligations (i) to implement  management rules containing the user’s terms and conditions, responsibilities of the users towards  the content being uploaded or posted and to cause the availability of facility, service and settlement for handling complains; and (ii) to provide the report facility which is accessible by anyone for accepting complain or making notice on illegal content and to which complain or notice the Private ESO is required  to give response, to carry out investigation, to notify its users regarding the complain, and to reject baseless complaint.

Failure to comply with the above obligations will cause the  electronic system to be blocked.

2.5 Private ESO that provides cloud computing service.

In addition to the general obligations of ESO as discussed above, this ESO is also obliged to implement  management rules on (i) the terms and conditions applicable to the users, (ii) the operator’s obligations and rights, and (iii) the users’ responsibilities related to the storage of the electronic information and/or electronic documents in the cloud computing, and (iv) the operator’s obligation to open the access of private ESO’s electronic system and/or electronic data due to law enforcement in relation with terrorism, child pornography, human trafficking, organized crime and/or other emergency situation which life threatening.

3. Registration of the Private ESO

3.1 Private ESO must register itself to and obtain a registration number (tanda daftar) from MOCI before the users can use such online platform. Some operators of online platform which are under supervision of the Ministry or Government’s institution are required to register itself directly to MOCI rather than through the OSS.

The existing online platform’s operators, which before the enactment of this MOCI regulation has registered itself through MOCI’s website https://pse.kominfo.go.id/pendaftaran-pse, must within 6 months as of 24 November 2020 adjust and reregister itself pursuant to the procedure under this MOCI regulation.

3.2 The following information/data must be filled by Private ESO in the Registration at MOCI or through the OSS:

(a) Description of the electronic system which are:

(b) Compliance on IT regulations regarding  Information security;  

(c) Compliance on IT regulations regarding  personal data protection;

(d) Compliance on IT regulations regarding the testing of electronic system performance.

3.2 Foreign Private ESO must also register itself at and obtain registration number from MOCI through the OSS.

In addition to detail of the description mentioned in 3.1 above, the registration by foreign private ESO must also provide information on number of users from Indonesia  and the amount of transactions from Indonesia.

4. Taking down illegal online content

Anyone/community, other Ministries/Government’s instance, law enforcer, or court can make a report to MOCI via email or website on their finding on illegal content including terrorism, child pornography or gambling  content supported with (i) identity of the party making the report, (ii) screen capture of illegal content; and (iii) URL of the illegal content. MOCI will then notify the relevant Private ESO to take down illegal content within 1x24 hours as of the notification is accepted or within 4 hours if such illegal content is related to terrorism and child pornography.

5. Opening the access to the electronic system and/or electronic data

Based on a formal request from:

(a)  The relevant Ministry supported with the underlying legal basis/authority, purpose and objective of the request, specific description of the requested data/electronic system  and name of the official (who will access the electronic system) private ESO must open its electronic system and/or the requested electronic data at the latest 5 days as of the request.

(b) The law enforcer for investigation, prosecution or trial of criminal proceeding in Indonesia’s territory which is subject to jail sanction of minimum 2 years, the private ESO must provide the requested electronic data.

(c) The law enforcer for investigation, prosecution or trial of criminal proceeding in Indonesia’s territory which is subject to jail sanction of minimum 5 years or less than 5 years but no less than 2 years with the court approval, the private ESO must open its electronic system to law enforcer for investigation prosecution or trial of criminal proceeding in Indonesia’s territory based on a formal request.

(d) The law enforcer, private ESO must provide access regarding traffic data and subscriber information.

(e) The law enforcer private ESO must provide access to the requested electronic data  or electronic system if it is related to Indonesian citizen or Indonesian business entities if the private ESO carries out management, processing and/ or storing electronic data outside Indonesia.

6. Sanctions

(a) Access blocking will be imposed against Private ESO who fails to fulfill the required registration under this MOCI regulation.

(b)The already  registered Private ESO, which fails to report any changes on registered information/data or if it provides incorrect information/data, will be reminded with a warning letter and be imposed with temporary termination of the access if it ignores the warning letter and the access will be blocked and registration number be revoked if it continue ignoring the temporary termination of the access.

 

Disclaimer: This article is intended as general information only and it does not constitute a legal advice. We accept no responsibility for any loss that may arise from reliance on this information. Please contact us if you need full legal advice.