INDONESIA Law and Practice Contributed by: Indra Setiawan, Ridzky Firmansyah Amin, Marintan Panjaitan and Tifanny Natalia, ABNR Counsellors at Law
2. Restrictive Covenants 2.1 Non-Competes
• contractual necessity; • compliance with a data controller’s legal obliga - tions; • protection of the vital interests of the data subject; • public interest, for the provision of public services or the exercise of lawful authority; and • legitimate interest. In this regard, depending on the specific purpose of processing, an employer may or may not be required to obtain express consent, which will require further assessment on a case-by-case basis. An implementing regulation of the EIT Law is the Minis - try of Communications and Informatics (MOCI) Regu - lation No 20 of 2016 on Protection of Personal Data in Electronic Systems (“MOCI Regulation No 20/2016”). Under PDP Law and MOCI Regulation No 20/2016, every company is required to increase awareness and prevention, and implement organisational steps (internal regulations) to protect the personal data of their employees. This can be done by, among other steps, conducting training to prevent the failure to protect personal data managed by human resources, and determining the level of security of personal data based on its nature and associated risks. Expatriates can only be employed under a fixed-term employment agreement, and such employment is strictly subject to the validity and scope of their work permit issued by the relevant Indonesian government authorities. Expatriates cannot be employed for multi - ple positions in the same company and are prohibited from holding positions that involve responsibility for employment-related matters. The holding of multiple positions at different compa - nies is permissible, provided the positions are at the board of director or commissioner level (for a limited liability company); trustee, manager or supervisor level (foundation); or employee level in the context of voca - tional education and training, the digital economy, or the oil and gas sectors for contractors under co-oper - ation agreements. 4. Foreign Workers 4.1 Limitations on Foreign Workers
Indonesian employment law does not specifically regulate non-compete clauses. Non-compete claus - es can be agreed in practice by an employer and employee in an employment agreement or termina - tion agreement (as the case may be). Given that there is no specific regulation on non-compete clauses, the validity and enforcement of non-compete clauses are subject to general contract law. They can be enforced should a breach occur, according to the dispute reso - lution terms specified under the agreement and the prevailing Indonesian civil procedural law. 2.2 Non-Solicits As with non-compete clauses, Indonesian employ - ment law does not expressly contain non-solicita - tion clauses. The matter can be agreed upon in an employment agreement or termination agreement (as the case may be). The validity and enforcement of non-solicitation clauses are also subject to general contract law. Non-solicitation can be enforced should a breach occur. 3. Data Privacy 3.1 Data Privacy Law and Employment There is currently no specific data privacy law or regu - lation in the employment sphere. In so far as an individual’s private or personal data or information is used, collected, processed, analysed, stored, displayed, sent, shared, destroyed or trans - ferred via electronic media, Law No 27 of 2022 con - cerning Personal Data Protection (the “PDP Law”), as well as Law No 11 of 2008 on Electronic Information and Transactions as lastly amended by Law No 1 of 2024 (the “EIT Law”), applies. The PDP Law and the EIT Law set the principal standard for the handling of general electronic information and data protection. The PDP Law stipulates that the processing of per - sonal data must be based on a specific lawful basis, including the following: • consent;
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