Does the Electronic Signature applicable to GMOS?
Since Indonesia is still struck by a pandemic from Covid-19, in which the Government still applies restrictions on activities for the community, therefore there are more activities being carried out through an electronic system. One of the activities is the General Meeting of Shareholders (hereinafter referred to as "GMOS"). To minimize physical contact and to comply with the current regulations, many GMOS were held using Video Conference media. With this new implementation method, many parties began to question whether the signing of an electronic signing could be applied in the GMOS or not.
The Electronic Signatures itself is regulated in Law Number 11 of 2008 concerning Electronic Information and Transactions (hereinafter referred to as the “ITE Law”) which has been amended, by Law Number 19 of 2016 concerning Amendments to Law Number 11 of 2008 concerning Electronic Information and Transactions, as well as Government Regulation Number 71 of 2019 concerning Implementation of Electronic Systems and Transactions (hereinafter referred to as "PP 71/2019"). In its definition, Electronic Signature is a signature consisting of Electronic Information that is embedded, associated, or related to other Electronic Information that is used as a verification and authentication tool.
Electronic Signatures have legal force and legal consequences as long as they met the following requirements:
- Electronic Signature creation data related only to Signers;
- Electronic Signature creation data during the electronic signing process is only in the power of the Signer;
- all changes to the Electronic Signature that occur after the signing time can be known;
- all changes to Electronic Information related to the Electronic Signature after the signing time can be known;
- there are certain methods used to identify who the Signatories are; and
- there is a certain way to show that the Signer has given consent to the related Electronic Information.
Electronic Signature includes 2 (two) things, namely:
a. Certified Electronic Signature
This electronic signature must meet the legality of legal force and legal consequences in accordance with applicable regulations, in the form of a digital certificate issued by the services of an Indonesian Electronic Certification Operator.
b. Electronic Signature not certified
This electronic signature is made without the need for a digital certificate issued by the services of an Indonesian Electronic Certification Operator.
By looking at the distribution of the 2 (two) types of electronic signatures above, then in a legal viewpoint, a certified electronic signature has a better legal proof. However, both types of electronic signatures are still legally valid, as long as their use of documents by electronic transactions is in accordance with the ITE Law and PP 71/2019.
However, not all types of documents can use the electronic signatures. Based on Article 5 of the ITE Law, electronic signatures does not apply to:
- Letters which according to the law must be made in writing; and
- Letters and documents that according to the law must be made in the form of a notary deed or a deed by the deed-making official.
Therefore based on the aforementioned matters, even though the GMOS was held through Video Conference media, it could not be signed through an electronic signing, because the GMOS is a document that must be made in notary form.
Suria Nataadmadja & Associates Law Firm
Advocates & Legal Consultants