Attributing Legal Liability to Marketplace Platform Operators for Invalid Electronic Contracts in Indonesia

Abstract

Purpose: This study examines whether a marketplace electronic system operator can be held liable when an electronic contract formed through its system is declared invalid, and on what basis that liability rests.Research Methodology: This study uses a normative-empirical legal method, combining statutory, conceptual, comparative, and analytical approaches with a clause-by-clause coding of five contractual instruments used by Tokopedia and Shopee and interviews with two consumers and two merchants.Results: Marketplace contracting is layered, with validity defects arising in the platform agreement and incorporated policies controlled by the operator. Article 52 of Government Regulation No. 80 of 2019 treats them as one instrument. An operator cannot avoid liability by claiming non-party status, as its legal status follows its activities. The examined exoneration clauses are therefore void.Conclusions: The study shifts attribution from fault to control, proposing four cumulative parameters: fault, system control, benefit, and capacity to prevent harm. As the latter three arise wherever the operator exercises control, liability may attach without proof of fault, with its degree graduated according to the level of control.Limitations: The empirical component rests on four informants and two platforms; therefore, it identifies patterns rather than measuring how common they are.Contributions: This study provides regulators and courts with a workable rule for allocating risk in electronic transactions and a basis for revising Articles 52 and 57.