NAVIGATING THE AFTERLIFE: ANALYZING DATA PROTECTION OF THE DECEASED UNDER THE INDONESIAN LAW

Abstract

This article examines the evolving landscape of data protection for deceased individuals in Indonesia, particularly in light of constitutional provisions such as Article 28 G of the 1945 Constitution. Initial debates on data protection led to the creation of sectoral laws, but judicial activism, influenced by international human rights instruments, broadened privacy definitions under Section 28 G. This prompted legislative action culminating in Law No. 27 of 2022 on Personal Data Protection (PDP Law), harmonizing Indonesia’s data protection laws. However, a critical gap emerges in the PDP Law, as it replicates the European General Data Protection Law without explicit provisions for deceased individuals as data subjects. Recognizing the potential risks associated with the misuse of deceased data, this article employs doctrinal legal research to analyze the current status of data protection for the deceased in Indonesia. While acknowledging the complexity of protecting deceased data, the article asserts that solutions exist, drawing on successful strategies from other jurisdictions. To address this gap, the article recommends a reevaluation of the PDP Law’s defi nition of data subjects. Specifically, it advocates for a reconsideration of Sections 28 G and H of the Constitution, emphasizing posthumous dignity and property interests. Additionally, the article underscores the relevance of Section 28 I, which mandates the state to ensure societal well-being and protect against potential harm. Broadening the legal framework to include protection for deceased individuals’ data explicitly would enhance Indonesia’s data protection regime, safeguarding interpersonal relations and public interests from the risks associated with misused deceased data.