Dec 22, 2020
In early December 2020, the Ministry of Communication and Informatics (“MCI”) issued MCI Regulation No. 5 of 2020 on Electronic System Provider for Private (“MCI 5/2020”). MCI 5/2020 is an implementing regulation of Government Regulation of 71 No. 2019 on Electronic System and Transaction Provision (“GR 71/2019”) and has been long anticipated by the internet industry. The MCI 5/2020 provides several notable provisions which are outlined below.
Any ESP for private must register themselves to the MCI through an Online System Submission (“OSS”) before the electronic system is being used by its users. This requirement to register with MCI is actually already regulated in the previous regulations. Previously, it was unclear whether foreign ESP must comply with this registration requirement. MCI 5/2020 now makes it clear that the obligation to register is applicable to both local and foreign ESP. Currently, the government is still in the midst of preparing the system that will enable the foreign ESP to register themselves through OSS.
Content management obligation
ESP is required to manage their electronic system and electronic information it stores reliably, safely, and responsibly. As a form of content management, ESP must ensure that their electronic system does not contain any unlawful information and/or documents or facilitate the dissemination of such information. If the ESP discovers unlawful content in their electronic system, the ESP must conduct certain measure to maintain its compliance to MCI 5/2020.
Access disclosure for supervision and law enforcement purposes
For supervision, ESP must provide access the electronic system and/or electronic data to the relevant ministries and institutions upon written request by the authorities based on supervision necessity assessment. ESP's access is limited and confidential, and it may be provided in the form of a link, application, or other means agreed by the ESP and the ministries/institutions.
In addition to that, ESP must provide access to law enforcement agencies for investigation, prosecution, and trial of criminal actions within the Republic of Indonesia's jurisdiction. If the ESP processes or stores electronic information and/or documents outside of Indonesian jurisdiction, the ESP must provide access to the relevant information. There are certain exemptions applicable, including exemption for cloud computing service provider. (dnk/rid)
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