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Adhika Paramartha S Wiyoso

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Adhika Paramartha S. Wiyoso is an Associate Partner in Baker McKenzie's Jakarta office.

Until recently, there was no clear deadline for the registration obligation imposed on offshore or foreign private electronic system operators (ESOs) under Minister of Communication and Informatics (MOCI) Regulation No. 5 of 2020 on Private Electronic System Operators, as lastly amended by MOCI Regulation No. 10 of 2021 (“MOCI Regulation 5”).
When MOCI Regulation 5 was first enacted, there was a six-month transitional period for private ESOs to conduct ESO Registration after the regulation became effective on 24 November 2020. However, in practice, the Indonesian Online Single Submission (OSS) system was not yet able to accommodate registration applications by offshore private ESOs. As a result, the timeline for ESO Registration was further extended to become six months after the OSS system became effective.
On 22 June 2022, the MOCI held a press conference to announce that the six-month period was counted from 21 January 2022 (deemed as the date on which the OSS system became effective), and that therefore the deadline for ESO Registration would be 20 July 2022.

Looking specifically at digitalization, we are pleased to share with you our first in a series of publications, highlighting the key points that should be considered in structuring your companies’ operations. In this publication, we will be looking at investing into, and operating, Data Centers in Indonesia.

The issuance of Law No. 11 of 2020 on Job Creation (commonly known as the “Omnibus Law”) and its implementing regulations, in particular Government Regulation No. 46 of 2021 on Postal, Telecommunication and Broadcasting (“Regulation 46”) and Presidential Regulation No. 10 of 2021 on Capital Investment Business Fields (commonly known as the “Priority List”), proposes significant regulatory changes to the technology and telecommunication sectors. With the various liberalization and investment incentives offered, the government expects to boost growth in these sectors, both encouraging local players as well as attracting foreign investors. 

On the other hand, the government also wants to be more involved and to have more monitoring authority in the technology and telecommunication sectors, where services can be provided and offerings can be made seamlessly from offshore to Indonesia without any actual presence in Indonesia.

The Constitutional Court recently issued a judgment rejecting a request to include Over the Top (OTT) services under the scope of Law No. 32 of 2002 on Broadcasting as amended by Law No. 11 of 2020 on Job Creation (“Broadcasting Law”). The judgment saves OTT services operators from licensing and censorship requirements under the Broadcasting Law. If the court had granted the request, OTT services operators would have needed to be licensed as broadcasting institutions and be subject to censorship by the movie censorship board. The judgment confirms that OTT services are not subject to the Broadcasting Law and remain subject to Law No 19 of 2016 on Amendment of Law No. 11 of 2008 on Electronic Information and/or Transaction (“EIT Law”).

The Constitutional Court’s judgment is final, binding, and not subject to appeal.

The judgment was rendered following an application for constitutional review of the above provision by two conventional broadcasting operators who perceived that there is unequal treatment against them and OTT service operators.

Up to now, there was not a clear position on the obligations (including registration obligation) for offshore or foreign private electronic system operators (“ESOs”).

This has changed with the recent issuance of Minister of Communication and Informatics (“MOCI”) Regulation No. 5 of 2020 on Private Electronic System Operators (“MOCI Regulation 5”), which clarifies registration requirements and other obligations for foreign private ESOs.

MOCI Regulation 5 is an implementing regulation of Government Regulation No. 71 of 2019 on the Implementation of Electronic Transactions and Systems (“GR 71”). The regulation became effective on 24 November (but it was only published on the MOCI’s website on 2 December).

There is a six-month transitional period under the regulation, but this is only applicable for the requirement for private ESOs to register with the MOCI.

Up to now, there was not a clear position on the obligations (including registration obligation) for offshore or foreign private electronic system operators (“ESOs”).

This has changed with the recent issuance of Minister of Communication and Informatics (“MOCI”) Regulation No. 5 of 2020 on Private Electronic System Operators (“MOCI Regulation 5”), which clarifies registration requirements and other obligations for foreign private ESOs.

MOCI Regulation 5 is an implementing regulation of Government Regulation No. 71 of 2019 on the Implementation of Electronic Transactions and Systems (“GR 71”). The regulation became effective on 24 November (but it was only published on the MOCI’s website on 2 December).

There is a six-month transitional period under the regulation, but this is only applicable for the requirement for private ESOs to register with the MOCI.

On 5 October 2020, the Parliament approved the job creation law (RUU Cipta Kerja, commonly known as the “Omnibus Law”), which introduces key amendments to several sectors. The Omnibus Law is expected to take effect within 30 days, upon signing by the President.

The Omnibus Law intends to amend more than 75 laws, which will require the central government to issue more than 30 government regulations and other implementing regulations within three months.

This client alert covers the amendments to Law No. 36 of 1999 on Telecommunications (“Telecommunications Law”) and Law No. 32 of 2002 on Broadcasting (“Broadcasting Law”) under the Omnibus Law, which would impact telecommunications and broadcasting sectors in Indonesia.

In brief What is IA-CEPA? Brief Overview of the IA-CEPA Indonesia and Australia have made a framework to unlock the vast potential of the bilateral economic partnership, fostering economic cooperation between businesses, communities and individuals through the Indonesia-Australia Comprehensive Economic Partnership Agreement (“IA-CEPA”)1. The IA-CEPA was ratified by Australia on…