No more pens and ink

Achmad Zen Umar Purba ,  Jakarta   |  Thu, 05/08/2008 11:03 AM

"Just imagine if this had existed 224 years ago, the Founding Fathers wouldn't have had to come all the way to Philadelphia on July 4th ... They could have e-mailed their John Hancocks."

That was what then U.S. president Bill Clinton said in the enactment of the E-Sign Act, on June 30, 2000.

Indonesian President Susilo Bambang Yudhoyono last month ratified the law on electronic transactions and information, which includes electronic signatures.

Historically, compared to the U.S., Indonesia's move of having Law No. 11/2008 is probably seen as too advanced, if not too rapid. However, in the perspective of the present modern age of information-based economy, the electronic signature, as part of electronic information, is merely a stepping-stone.

It may also be a reflection of our dependence on the current technology advancement. The business community has been questioning the legal status of these electronically signed documents for quite a time, because so many communications are done through e-mail. Meanwhile, other surrounding countries, including China, have already enacted cyber laws analogous to this.

The law, officially called the Electronic Transactions and Information Law, defines an electronic signature as a "signature which is a compilation of attached electronic information, associated or related to electronic information which will be used as verification and authentication tools". This means that the electronic signature is part of the respective electronic information.

Electronic information itself is defined as a "compilation of electronic data, which includes writing, electronic data interchange, telegram, telex and telecopy which has been created and may be understood by people who are able to understand it".

Nevertheless, the electronic signature must be completed by the supporting data that the electronic signature relates only to its creator and the said data is in the power of its signatory party. Additionally, the data is also safeguarded, hence it can not be accessed by other parties.

More importantly, for the legality of the electronic signature, there will be a system of "electronic certification", which is run by the administrator, to ensure the relation between the electronic signature and its owner. The law rules that an electronic certification administrator must provide accurate data regarding the method for identifying the signatory party as well as regarding the purpose of the electronic signature. This last provision is one vital aspect of safeguarding not only for the signatory him/herself, but also for the public.

In the sphere of national law development, what does the law represent? The law ascertains that Indonesia has opened a new era of lawful means of evidence. This ascertainment is very significant, because it has been long expected by the business community.

The electronic signature, fax and other items of electronic information and their printouts are, as the law states, "the expansion of lawful means of proof in accordance with the law of procedure applicable in Indonesia". However, electronic information may not be regarded as absolute. The law reminds us that electronic information is not valid if the prevailing laws require, for instance, that the documents concerned must be made in writing, or in the form of a notarial deed.

As indicated by its name, the law not only stipulates matters that pertain to the electronic signature and fax. Other aspects of information technology and electronic transactions, or e-commerce, are also dealt with in the law, such as electronic contracts, domain names, intellectual property rights and protection of private rights.

Equally important are the stipulations on wrongful conducts embodied in a total of 11 articles -- which hold criminal liabilities for the perpetrators.

There have been protests from the press in relation to the issues of contempt or defamation as well as issues regarding spread of "information with the purpose to creating hatred or individual hostility and/or specific group of society based on tribal affiliations, religion, race and societal groups (SARA)".

The concern of the press is understandable, since it gathers information not only through the printed media but also the internet. The press has expressed regret that the government and the House of Representatives did not involve them in the discussions on this matter -- even though some say that the press should have known the inclusion of the above issues as the House sessions are mostly open to the public and covered by the press.

It was reported that as soon as the law is enacted, the press intends to bring it to the Constitutional Court for judicial review.

Irrespective of the new legal status of the electronic signature, fax and other e-things, the law marks the commencement of the cyber law era in Indonesia, even though the effectiveness of certain provisions is subject to the issuance of several implementing legislations -- which should be ready within at least two years.

With the arrival of the "e" era through the law, the pen and ink will probably gradually be left behind. This should be acceptable provided that all of the "e" matters are run well.

The writer is a professor of law at University of Indonesia, and a founding member of ABNR Foundation.

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