“By Indonesian law, a Digital Signature has been properly acknowledged and regulated. However, while having similar legal enforceability of a wet signature on paper, a Digital Signature must still undergo a legalization process if the signing is conducted outside of Indonesia.”
Pursuant to Law No. 19 of 2016 concerning Amendment of Law No. 11 of 2008 concerning Electronic Information and Transaction (“ITE Law”), there has been defined a legal term of Electronic Signature, namely a signature consisting of electronic information that is attached, associated, or related to other electronic information, and that is used as a verification and authentication tool. This definition is also stipulated under Government Regulation No. 71 of 2019 concerning the Implementation of Electronic System and Transactions (“GR 71/2019”).
Under Article 11 of ITE Law and Article 59 of GR 71/2019, Digital Signature has a valid legal force and legal consequences insofar as the following requirements are met:
- The Electronic Signature creation data is only related to the signer;
- The Electronic Signature creation data at the time of the electronic signing process is only in the signer’s possession;
- All changes to the Electronic Signature which happen after the signing are discoverable;
- All changes to the electronic information which are related to the Electronic Signature which happens after the signing are discoverable;
- There is a certain method that is used to identify who the signer is; and
- There is a certain method that can disclose that the signer has granted their approval with regard to the relevant electronic information.
Difference between Electronic Signature and Digital Signature
By its definition, an Electronic Signature must be distinguished from any wet signature on a paper that has been scanned by electronic means. Rather, Electronic Signature is an Indonesian legal term that means any approval by a signer to certain electronic information.
In contrast, a Digital Signature is to be further distinguished from a scanned wet signature and Electronic Signature in a way that a Digital Signature refers to the electronic signature placed on a document by an asymmetric cryptographic method with public key infrastructure (Thalis Noor Cahyadi, 2020).
Aside from the definition, Electronic Signatures and Digital signatures also differ in terms of their usage and purposes. In principle, an Electronic Signature is an item related to the coding of the digital message which provides verification of the identity of the signer. This means that an Electronic Signature is purported to ensure that the electronic information has been approved by the signer.
On the other hand, a Digital Signature does not only ensure the approval and identity of the signer, but also the holistic content of the electronic information itself. Therefore, the usage of a Digital Signature must be based on a cryptographic public key which can only be accessed with a private key individually belonging to the signer.
By encrypting the electronic information and providing the signer’s private key, a Digital Signature is purported to provide the following purposes:
- Authenticity;
- Integrity;
- Non-repudiation; and
- Confidentiality.
The acknowledgment and regulation concerning Digital Signature can be found in GR 71/2019. Under GR 71/2019, Digital Signature is a specific type of Electronic Signature that is generated through a digital signature producing data, namely any private code (private key), biometric code, cryptography code, and/or code which are produced from the alteration of manual signature into Digital Signature, including other signatures which are produced from the development of information technology. Furthermore, a Digital Signature is further regulated to be made using a certified digital signature producing device.
Under Article 61 of GR 71/2019, digital signature producing data must fulfill the following provisions:
- If using the cryptography code, the digital signature producing data must be difficult to be known from the verification data of the Digital Signature through certain calculation, in a certain period, and with a reasonable device;
- Digital signature producing data must be retained in an electronic media which is in the possession of the signer; and
- The data in relation to the signer must be retained in a place or data storage facilities which utilize a trusted system owned by an electronic certification provider which may detect changes and fulfills the following requirements:
- Only the authorized person is able to input new data, change, exchange, or replace data;
- The authenticity of identity information of the signer can be examined; and
- Other technical changes which violates the security requirements may be detected or discovered by the provider.
Legal Enforceability of Digital Signature
Considering how Digital Signature has been acknowledged and regulated in Indonesian law, the legal enforceability of a Digital Signature is deemed to be as valid as a wet signature on paper, insofar as all the requirements under GR 71/2019 are met.
Moreover, Indonesian law has acknowledged both Electronic signatures and Digital signatures as legal evidence in the court of law. This provision is found in Article 5 of the ITE Law, in which it is stated that electronic information and/or electronic document and/or their printout is a valid legal form of evidence.
However, under the same article in the ITE Law, it is stated that such provision does not apply to specific documents, namely:
- A letter that according to the law must be made in written form; and
- A letter along with its documents that according to the law must be made in the form of a notarial deed or deed made by deed-making officials.
Therefore, while a Digital Signature is legally deemed to be a valid approval of electronic information, there are some documents whose approvals cannot be sufficiently made by a Digital Signature.
Requirement for Legalization Process
According to Indonesian law, in the event, a signer provides their signature on a document outside of Indonesia, and the document is purported to be used in Indonesia, the signed document must undergo a legalization process by the authorized institutions (Indonesian Embassy and possibly other authorized institutions wherein the document is signed) to ensure that the document has been properly signed by the identified signer.
While a Digital Signature can only be provided by unique data individually belonging to the signer, the Digital Signature itself only provides a certainty that the signer has approved the document and such approval certifies the document’s content.
However, this validity is only comparable to a wet signature on a paper and not a legalization process by the authorized institutions. Moreover, we have confirmed with the Embassy in Indonesia; they confirmed that if the document sign uses a digital signature and wants to use it overseas, it is still required to do a legalization process. Therefore, if a Digital Signature signs a document outside of Indonesia, the document must first be legalized by the authorized institutions before being used inside of Indonesia.
Author: Yohana Veronica Tanjung
Gaffar & Co., an Indonesian Boutique Law Firm specializing and focusing on commercial law areas e.g. Capital Market & Financial Services.
For further queries and information, contact us:
+62 21 2271 5060 | info@gaffarcolaw.com | www.gaffarcolaw.com
