The Validity and Power of Proof of Electronic Signatures That Have Not Been Certified in Indonesian Law
Intan Permata Ningrum1*, Siti Nurul Intan Sari Dalimunthe1
1 Faculty of Law, University Of Pembangunan Nasional Veteran Jakarta, Jakarta, Indonesia
*Corresponding Author: [email protected]
Accepted: 15 February 2022 | Published: 1 March 2022
DOI:https://doi.org/10.55057/ajlg.2022.4.1.2
__________________________________________________________________________________________
Abstract: In Article 60 paragraph (2) of government regulations mention there are two types of Electronic Signatures, namely Electronic Signatures that are certified and have not been certified. Electronic signatures that have been certified are legal in force and have legal consequences. The reasons of writing this scientific research is to find out whether an electronic signature that has not been certified can be used and legally valid and how it stands before the law. The research methods used in this research are juridical-normative with a statue approach and juridical-qualitative analysis. The results of this study state that electronic signatures that have not been certified can be used and recognized by law as contained in Article 54 paragraph (1) of Government Regulation No. 82 of 2012. The strength of proofing an uncertified electronic signature is relatively weak because it does not have a safeguard that detects changes as well as a certified electronic signature.
Keywords: Validity, Electronic Signature, Uncertified, Proof Law
___________________________________________________________________________
1. Background
The Covid-19 pandemic that occurred caused the order of society to change or New Normal.
All aspects of life are affected by social distancing policies, one of which is in terms of agreements or contracts that include signatures. The electronics-based industry is considered to be a very important instrument in life in pandemic times because it is considered to reduce face-to-face meetings that are potentially spreading the Covid-19 virus (AGUSTINA, 2020).
So that the use of electronic signatures continues to increase, but in reality there are still obstacles in the application of this electronic signature, there is a misguidedness in the community regarding the understanding of legal electronic signatures and legal force. There is an assumption that an Electronic Signature is a manual signature on paper that is then scanned into a computer file as an electronic signature that has not been certified. Meanwhile, electronic signatures that have been certified have been added with the strengthening of electronic certificates which are then issued by electronic certification institution (DERMAWAN, 2021).
So that if there is any modification to the electronic signature that has been certified will be easily detected by the system and reduce the potential misuse of electronic signatures because if the electronic signature has not been certified, then the level of security is inadequate and easily falsified (PARTODIHARDJO, 2009).
As stated under Article 60 paragraph (2) letter a, and paragraph (3), Government Regulation No. 71 of 2019, states that certified electronic signatures are required in accordance with the
requirements of validity, legal force and legal consequences of valid electronic signatures as in Article 59 paragraph (3) of Government Regulation No. 71 of 2019 concerning the use of electronic certificates made by the services of Indonesian electronic certification institution and made using certified electronic signature making tools. About electronic signatures that are assumed to be invalid further regulated in Article 60 paragraph (2), letter b and paragraph (4), Government Regulation No. 71 of 2019 which contains about electronic signatures that are not certified is an electronic signature that is not issued by the services of electronic certification institution (FAYZA et al, 2021).
The importance of this research is to provide insight to the public on the urgency of using certified electronic signatures considering the rise of cybercrime in terms of data leaks in Indonesia and as a form of prevention of misuse of electronic signatures (HARI et al, 2021).
2. Literature Review
NO JOURNAL REVIEW
1 Tanda Tangan Elektronik pada Transaksi Jual Beli Online: Suatu Kajian Hukum Keamanan Data Konsumen di Indonesia by Hari Sutra Disemadi dan Denny Prasetyo, Wajah Hukum: Vol. 5 No. 1,
(April 2021).
In this journal discusses the urgency of preparing for regulations that affirm the data privacy security and electronic signatures used
in e-transactions while in the study the author examines the validity and legal power of proving electronic signatures that have not been
certified as valid evidence.
2 Pemanfaatan Tanda Tangan Digital Tersertifikasi Di Era Pandemi by Rizki Dermawan, Rewang Rencang: Jurnal Hukum Lex Generalis: Vol.2.
No.8 (Agustus 2021).
In the Journal has a different focus that is discussing the form of accountability of
Electronic Certification Organizers on Electronic Signatures and Legal Protection for Certified Digital Signature Users while in this study discusses the validity and legal power of proving electronic signatures that have not been
certified as valid evidence.
3 Kedudukan Tanda Tangan Elektronik dalam Transaksi Teknologi Finansial by Affan Muhammad Andalan, Jurist-Diction: Vol. 2 No. 6
(November 2019).
The journal focuses on the role of electronic signatures in financial technology such as how
electronic signatures are based on the law and the function of electronic signatures. The difference lies in research on the validity and legal power of proving electronic signatures that
have not been certified as a valid means of proof.
4 Aspek Hukum Penggunaan Tanda Tangan Digital Dalam Transaksi Bisnis by Yusep Mulyana, Varia
Hukum: Vol 2. No 1 (Januari 2020).
In this journal, the author describes electronic signatures in general or those that have been certified while in this study the author wanted to discuss about electronic signatures that have not
been certified.
5 Keabsahan Digital Signature Dalam Perjanjian E- Commerce by Rehulina Sitepu, Doctrina: Journal
Of Law: Vol.1 No.1 (April 2018).
In this journal, the author discusses the power of certified signatures. While in this journal
discusses the validity and legal power of proving electronic signatures that have not been
certified as a valid means of proof.
6 Keabsahan Tanda Tangan Elektronik Dalam Akta Notaris by Lyta Berthalina Sihombing, Jurnal Education And Development, Vol 8 No 1, (Feb
2020).
In this journal discusses how the legal power of the use of electronic signatures that have been certified in notary deeds while in the study the author examines the validity and legal power of proving electronic signatures that have not been
certified as valid evidence.
7 Keabsahan Tanda Tangan Elektronik Pada Perjanjian Jual Beli Barang Dari Perspektif Hukum
In the Journal discusses the electronic signature that is not certified or scanner but poured in the
Perdata by Thamaroni Usman, Private Law Review Vol 2 Issue 2, (2020).
form of buying and selling goods. And the focus in this journal is how the legal consequences if there is a default of the agreement conducted electronically while in the study the author examines the validity and legal power of proving electronic signatures that have not been certified as a valid means of proof.
8 Pengakuan Tanda Tangan Suatu Dokumen Elektronik Didalam Pembuktian Hukum Acara Perdata Di Indonesia by Tutwuri Handayani, Tesis
Universitas Diponegoro, (2009).
In this journal discusses the recognition of electronic signatures in civil event law while in
the study the author examines the validity and legal power of proving electronic signatures that
have not been certified as a valid means of evidence.
9 Keabsahan Tanda Tangan Elektronik Sebagai Alat Bukti Menurut Undang Undang No 11 Tahun 2008
Tentang Informasi Dan Tranksasksi Elektronik by Bayu Ardwiyansyah, Lex Privatum Volume 5 No
7, (2017).
In the Journal has similarities with the author's research in terms of discussing electronic signatures but discussing different focuses. In this journal discusses electronic signatures that
have been certified as evidence while in research the author examines the validity and legal power of proving electronic signatures that
have not been certified as valid evidence.
10 Keabsahan Tanda Tangan Elektronik dalam polis Elektronik Serta Kekuatan Pembuktianya Dalam
Perspektif Hukum Pembuktian by Dendy Ari Galih, Juris Society: Jurnal Ilmiah Sosial Dan
Humaniora Vol 1 No 1, (2021).
In the Journal has similarities with the author's research in terms of discussing electronic signatures but discussing different focuses. In this journal discusses the position of electronic
signatures in electronic policies and how to prove them in law while in research the author
examines the validity and legal power of proving electronic signatures that have not been
certified as valid evidence.
3. Methodology
The methodology used in this research are juridical-normative with statue approach by examining applicable statue or law. Using secondary data obtained from the research library and analyzed with juridical-qualitative.
4. Definition of Certified Electronic Signature
An electronic signature is a signature with a data security created with a private signature key, whose use depends on the attached and associated public key (MUDIARDJO, 2008). In Article 1 number 12 of Law No. 11 of 2008 concerning Information and Electronic Transactions explaining the meaning of electronic signatures, electronic signatures are signatures consisting of electronic information attached, associated or related to other Electronic Information used as verification and authentication tools. In Article 1 Number 1 of Law No. 11 of 2008 Electronic Information is one or a combination of electronic data, including but not limited to written, voice, images, maps, designs, photos, electronic data interchange, electronic mail, telegram, telex, telecopy, letters, signs, numbers, access codes, symbols, or perforations that have meaning or can be understood by people who are able to understand it. Electronic signatures are created to facilitate business transactions and as a tool used to certify documents.
Electronic signatures using cryptographic techniques, and public key cryptography in their use then obtain transaction agreements, this is as stated in Article 1320 of the Civil Code and Law No. 11 of 2008 on Information and Electronic Transactions and Government Regulation No.
82 of 2012 on the Implementation of Systems and Transactions regarding the requirements of
the legal electronic signatures recognized by law in Indonesia, namely having elements of Authenticity, Integrity, Non-repudiation, and Confidentiality (ANDALAN, 2019)
As stated in Article 11 paragraph (1) of the ITE Law, The legal requirement of electronic signatures are first, electronic signature creation data is only related to the signer; second, electronic signature creation data when the signing progress is only within the signer's power;
third, all modifications that occur after the time of electronic signature marking can be known;
fourth, all modifications to the electronic information attached to the electronic signature after the time of marking can be known; fifth, there are certain ways in which to identify who the marking is; and sixth, there is a way of knowing that the data collection has provided an acceptance of the relevant electronic information.
Figure 1: Certified Electronic Signature
5. Definition of Uncertified Electronic Signature
Based on Article 60 Paragraph (2) Letter b of Governance Regulation No. 71 of 2019 there are two types of signatures called certified electronic signatures and electronic signatures that are not certified. Electronic Signature is not certified as referred to in paragraph (2) letter b made without the use of the services of the Indonesian Electronic Certification Operator. In Article 54 paragraph (1) of Government Regulation No. 82 of 2012 concerning Electronic Certification Institution explaining the legal consequences of the use of certified or uncertified electronic signatures affects the strength of the evidentiary value.
An uncertified electronic signature is an electronic signature that does not associate the institution of the certification service and also does not have an operating license from the authorized authority. This authority is the Ministry of Information of the Republic of Indonesia which issues certificates for each electronic signature service provider. While the certified electronic signature is issued by the Electronic Signature Certification Institution that has been certified at the Ministry of Information of the Republic of Indonesia. This certification service provider gets permission to apply an encryption system for electronic data protection, one of which is electronic signature.
Electronic Signatures that are not certified still can be use and have the power of proof value although relatively less strong because it can still be denied by those who are circumcised or relatively easily changed by others. In practice it is necessary to pay attention to the range of strength of the proof value from electronic signatures that are of weak proof value, such as manual signatures scanned to Electronic Signatures up to Electronic Signatures that are of the most powerful proof value, such as Certified Electronic Signatures issued by certified Electronic Certification Institution.
Figure 2: Uncertified Electronic Signature
6. Electronic Signatures That Have Not Been Certified As A Valid Evidence In The Law Of Proof
There are many of definitions and forms of proof of electronic signatures. Legal experts describe the definition and the meaning of a proof. Subekti argues that proving is an attempt made to give confidence to the judge about the validity of the propositions expressed in a dispute (SUBEKTI, 1979). Furthermore, Sudikno Mertokusumo argues differently, that what is called in the juridical sense of the concept of proof is an effort made to provide sufficient foundations to the judge who examines the case and also concerned to give legal certainty to the truth of the proposed legal event (MERTOKUSUMO, 1999).
In the case of proof of certified electronic signature using technology that makes electronic signatures difficult to counterfeit or duplicate. This is due to the protection that is encrypted in every bit of an electronic signature and applies symmetric or asymmetric cryptographic methods so that non-repudiation. The methods and technologies used are not applied to electronic signatures that are not certified, so the risk of obstacles that can be posed in the use of non-certified electronic signatures is very large. To avoid these risks and obstacles, digital forensic testing is used for the use of electronic signatures not certified in the event of a dispute.
The Ministry of Communication and Information Information Investigation and Enforcement, Teguh Arifiyadi, said that the form of verification of the originality of electronic signatures before the Court is divided into proof of certified electronic signatures and non-certified signatures. For electronic signatures that have been certified, the status is almost equivalent to an authentic deed. Both the judge, plaintiff and defendant will receive information from the digital certificate issuing institution that the digital signature is true with the information issued by the certificate issuing institution. After that, its digital forensic experts can be shown at the trial to explain the digital forensic testing. But, the legal power of each signature is much stronger than the uncertified one. Both are legally recognized.
7. The Validity Of Electronic Signatures That Have Not Been Certified Based On The Theory Of Legal Certainty
Jan Michiel Otto is of the view that the certainty of the actual rules is more juridical, but Otto also conveys the limits of certainty of the rules further that mean the certainty of the rules into an exclusive circumstance factor that is available rules that are obvious or clear and consistent and easy to obtain, Enforcement agencies (government) apply the law or legal regulations consistently and also obey, the public in principle adjusts their attitude to the regulations, judges (courts) are independent and impartial and apply the rule of law consistently when they complete legal concurrency and judicial decisions are actually implemented (RAWLS, 2006).
The validity of an uncertified electronic signature, based on the theory of legal certainty has not been fulfilled as outlined in this study that there are no clear rules that accommodate electronic signatures that have not been certified and its legal position or strength. Moreover, both existing agencies and the government have not consistently applied the use of certified electronic signatures so that legal blurring can be noted that regarding the validity of electronic signatures that have not been certified has not been achieved legal certainty.
8. The Legal Power Of Proofing Electronic Signatures That Have Not Been Certified As A Valid Evidence Based On The Theory Of Proof Law
Based on Law No. 11 of 2008 on Information and Electronic Transactions regarding the Regulation of Information, Documents, and Electronic Signatures, contained in Articles 5 to Article 12 of the Electronic Information and Transaction Law. It is generally stated that electronic information or e-documents or hardcopy results are legal evidence tools, a form of expansion of the meaning of valid evidence tools in accordance with the Civil Law in Indonesia. Thus electronic signatures, have legal power and legal consequences. However, the use of electronic signatures must be in accordance with the prerequisites as stated in Law No.
11 of 2008 concerning Information and Electronic Transactions.
As stated in Article 11 paragraph (1) of the ITE Law, The legal requirement of electronic signatures are first, electronic signature creation data is only related to the signer; second, electronic signature creation data when the signing progress is only within the signer's power;
third, all modifications that occur after the time of electronic signature marking can be known;
fourth, all modifications to the electronic information attached to the electronic signature after the time of marking can be known; fifth, there are certain ways in which to identify who the marking is; and sixth, there is a way of knowing that the data collection has provided an acceptance of the relevant electronic information. It is then affirmed in Article 12 of the ITE Law that signers in electronic signatures are obliged to provide security for their electronic signatures.
While electronic signatures that have not been certified do not fulfill the requirements as required in the law so that they cannot be equated with electronic signatures that have been certified or an authentic deed. Based on the power of outward proof where the competence of the deed itself to prove itself as an authentic deed authentic deed proves itself its validity "acta publica probant sese ipsa". In this case the uncertified electronic signature does not fulfill the external power of proof because it cannot prove itself because it does not have a safeguard that detects every modification as possessed in the certified electronic signature.
However, based on the theory of free proof asserts that the Judge has the freedom to judge the means of evidence received from the parties to the dispute, both evidence under the Law, and evidence tools outside the Law. In this case, it has to do with the progressive theory of law where Judge is placed above the law, the law only as a medium to guarantee and maintain various human needs. The law is no longer considered an absolute document and exists autonomously. So in terms of law enforcement, law enforcement should not be complacent about the co-optation of rules on consciences that speak the truth (RAHARDJO, 2003). To avoid risks and barriers to the use of uncertified signatures, digital forensic testing is used as proof of the use of electronic signatures not certified in the event of a dispute.
9. Conclusion
Based on the analysis that has been done, to answer the existing problem formulation, it can be concluded that:
1) Electronic signatures that have not been certified can be used, recognized by law, and have the power of evidentiary value although relatively less strong or weak because it can still be denied by the concerned and relatively easily modified by others. There is a point of difference between the uncertified and certified that located in its power in the eyes of the law because the signature that is not certified is only regulated in the goverment regulations not in the Law and there is no certainty in its legal protection. In its implementation, it is necessary to note the distance of the strength of the proof value of the Electronic Signature which is less strong proof value, such as a manual signature that is scanned into an Electronic Signature that has not been certified up to an Electronic Signature that is of the highest and strongest proof value, such as a certified electronic Signature issued by the Electronic Certification Institution. The government in this case is Ministry of Communication and Informatics advises to use electronic signatures that have been certified because it has the highest evidentiary power and has been guaranteed by the government.
2) The strength of proofing an uncertified electronic signature is relatively weak because it cannot prove itself and does not have a safeguard that detects modifications as a certified electronic signature so that the risks and obstacles that can be posed in the use of an uncertified electronic signature are very large. To avoid these risks and obstacles, digital forensic testing of the use of electronic signatures has not been certified in the event of a dispute. In addition, electronic signatures that have not been certified are not in accordance with the requirements as required in Law No. 11 of 2008 concerning Information and Electronic Transactions regarding electronic documents as a valid means of proof because in their use cannot be accounted for. However, it can still be submitted as a means of evidence based on the theory of free proof that asserts that the Judge has the freedom to judge the means of evidence received from the disputing parties, both evidence tools under the Law, and evidence tools that are outside the Law.
10. Recommendation
1) It is expected that the government can clearly regulate the legal power and legal restrictions on the use of electronic signatures that have not been certified to provide legal certainty to users of electronic signatures that are certified.
2) It is expected that the government should immediately pass regulations that regulate strictly the urgency of the use of electronic signatures that have been certified so that there is no legal blur regarding the validity and power of electronic signatures that have not been certified considering cybercrime is increasingly rife with the times so as to provide legal certainty for users of electronic signatures that have not been certified.
References
Agustina, Meria, (2020). Persaingan Usaha Tidak Sehat Antar Online Shop Dalam Kondisi Covid-19 Terhadap Kebijakan Yang Dikeluarkan Oleh Presiden, Res Judicata, Volume 3
Andalan, Affan Muhammad, (2019). “Kedudukan Tanda Tangan Elektronik Dalam Transaksi Teknologi Finansial,” Jurist-Diction Vol 2 No. 6, 1931-1950
Dermawan, Rizki, (2021). Pemanfaatan Tanda Tangan Elektronik Tersertifikasi di Era Pandemi, Jurnal Hukum Lex Generalis, Rewang Rencang, Vol 2 No 8
Fayza, Amirudin, Firman dkk, (2021). Upaya Hukum Terhadap Keamanan Data Pribadi Korban Pinjaman Online, Proceeding of Conference on Law and Social Studies, Universitas PGRI Madiun, 3
Government Regulation No. 71 of 2019 implementation of Electronic Systems and Transactions.
Government Regulation No. 80 of 2019 on Trading Through Electronic Systems.
Government Regulation of the Republic of Indonesia Number 82 of 2012 concerning the Implementation of Electronic Systems and Transactions.
Hari, dan Denny Prasetyo, (2021). “Tanda Tangan Elektronik pada Transaksi Jual Beli Online:
Suatu Kajian Hukum Keamanan Data Konsumen di Indonesia”, Jurnal Wajah Hukum Vol 5 No 1
Law No. 11 of 2008 concerning Information and Electronic Transactions.
Law No. 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Information and Electronic Transactions.
LBH Perjuangan, (2010). Penegakan Hukum Yang Menjamin Keadilan, Kepastian Hukum Dan Kemanfaatan (Studi Kasus: Kasus Mbah Minah), Lembaga Bantuan Hukum Perjuangan Mertokusumo, Sudikno, (1999). Hukum Acara Perdata Indonesia, Yogyakarta: Liberty Ministry of Communication and Informatics, (2021). Tanda Tangan Elektronik Menjadi Solusi
Di Era Digital, Direktorat Jenderal Aplikasi Informatika
Partodihardjo, Soemarno, (2009). Tanya Jawab Sekitar Undang-Undang No.11 Tahun 2008 Tentang Informasi Dan Transaksi Elektronik, Jakarta: Penerbit Gramedia Pustaka Utama Quarni, Hamalatul, (2018). Tanda Tangan Elektronik Keabsahan Dan Pembuktiannya Di
Hadapan Pengadilan, Available at:
www.hukumonline.com/berita/baca/lt5b6b977f75137/tanda-tangan-elektronik-- keabsahan-dan-pembuktiannya-di-hadapan-pengadilan
Rawls, John, (2006). A Theory of Justice”, London: Oxford University press, yang sudah diterjemahkan dalam bahasa indonesia oleh Uzair Fauzan dan Heru Prasetyo - Teori Keadilan, Yogyakarta: Pustaka Pelajar
Rahardjo, Satjipto, (2003). Sisi sisi Lain dari Hukum di Indonesia, Jakarta: Penerbit Kompas Subekti, R, (1979). Pokok-Pokok Hukum Perdata, Jakarta: PT.Intermesa.