Author: Naomi Catherine Felencia
“The utilization of E-Signature has been accepted for any transaction as long as it fulfills the requirements in accordance with the prevailing laws and regulation.”
E-Signature has the purpose as a tool to verify and authenticate the identity of the signer as well as to guarantee the integrity and authenticity of the document. E-Signature represents the identity of the signer which is verified based on electronic signature creation data.
This article will discuss further the legal basis of E-Signature along with its implementation.
- Regulation for E-Signature
In accordance with Law No. 19 of 2016 concerning the Amendment of Law No. 11 of 2008 regarding Information and Electronic Transaction (“Law No. 19/2016”), E-Signature can be defined as a signature which consists of Electronic Information that is aligned and/or associated with other Electronic Information and can be utilized as verification and authentication tools. Any E-Signature as the verification and authentication tool from the signatory has purposes to:
- Clarify for the identity of its owners; and
- Maintain the verification and authentication of Electronic Information.
However, there are types of E-Signature in accordance to the regulations, namely:
- Certificated E-Signature, which shall fulfill qualifications such as:
- Possess legal power and legal cause of E-Signature;
- Obtain electronic certificate which made by Indonesian electronic certification provider services; and
- Made by a verified signature creation tool.
- Non-certificated E-Signature, which has not been made by Indonesian electronic certification provider services.
Not all E-Signature has legal force which based on Article 11 of Law No. 11 of 2008, there are several conditions that made the E-Signature possess legal power such as:
- Data of the production for E-Signature only related to the signer;
- Data of the production for E-Signature during signing only under the control of the signer;
- Any changes to E-Signature that occur after the time of signing can be acknowledged;
- Any changes to the Electronic Information related to the E-Signature after the time of signing can be known;
- There are methods used to identify the person that owned the E-Signature;
- There are methods which show the signer has given consent for the Electronic Information.
According to Article 53 of Government Regulation No. 71 of 2019 concerning The Organization of Electronic Systems and Transactions (“GR No. 71/2019”), Electronic Certification Organizer has obligation to made, verification, and validation to E-Signature and/or any services related to the utilization of Electronic Certificate.
The regulation gives recognition to E-Signature hence it has the same legal power as well as manual signature. Therefore, it can be concluded that the utilization of E-Signature has been accepted for any transaction as long as it fulfills the requirements in accordance with the prevailing laws and regulation.
- Implementation for E-Signature in Notarial Deed
The competency of a notary is to make a deed, such as an authentic deed based on Article 1 para. (1) of Law no. 2 of 2014 concerning the Amendment of Law No. 30 of 2004 concerning Notary Positions (“Law No. 2/2014”). The Notarial Deed can be defined as an authentic deed which is made by or signed in front of a Notary.
Article 1868 of the Indonesian Civil Law Code stated that, the definition of an authentic deed is a deed made in the form according to the law or made in front of any public official who has an authority for that purpose at the location where the deed is made. Furthermore, an authentic deed has perfect evidentiary power regarding the contain matters for the parties and their heirs. Therefore, an authentic deed can stand alone, and no other evidence is needed to support it.
The classification of authentic deed namely Official Deed or Akta Relaas and Parties Deed or Akta Partij. Akta Relaas can be defined as a deed made by an authorized official which the officials explain what was seen and done to the deed. However, Akta Partij are defined as a deed made based on the information and/or actions of the party in front of the Notary, hence it will be confirmed by Notary to set in the deed.
The creation of Akta Partij will need Notary to read the deed in front of the party hence they all will need to directly meet at the place in accordance to the notary’s position. This is different from Akta Relaas that may be acceptable to use E-Signature due to the notary being able to write or record the matters that later will be put in the deed.
Utilization of E-Signature for Akta Partij is not acceptable since Notary will need to directly attend the place at the same time along with witnesses or parties to the deed. The creation of the deed will need manual signature as the proof. It may vary from Akta Relaas since Notary can only write or record the occurrence that will be put in the deed.
Therefore, there are not yet practical moves for the utilization of E-Signature in notarial deed, but it may be possible to since E-Signature has the same legal force as well as manual signature.
Author: Naomi Catherine Felencia
Gaffar & Co. is an Indonesian Boutique Law Firm focusing on commercial law, including corporate secretarial services.
For further queries and information, contact us: +62 811 877 216 | info@gaffarcolaw.com | www.gaffarcolaw.com
