Liability of Digital Business Actors in Marketplace Agreements

Abstract

The rapid development of marketplaces as digital business actors in electronic transactions has significantly increased technology-based economic activities in Indonesia. However, the dominance of standard form contracts that are unilateral and exclusionary has created an imbalance in bargaining positions between business actors and consumers. This condition opens opportunities for the use of exoneration clauses that may limit or even transfer the liability of business actors. As a result, issues arise in consumer protection, along with a widening gap between legal norms and their implementation in practice, which is becoming increasingly complex. This study focuses on examining how the construction of marketplace liability as digital business actors is formulated in electronic transaction agreements, as well as evaluating the effectiveness of the consumer protection legal regime in Indonesia in regulating such practices comprehensively. The findings indicate that, normatively, the legal framework through the Consumer Protection Law, the Electronic Information and Transactions Law, and their implementing regulations has regulated the prohibition of liability limitations and the obligations of electronic system providers. However, in practice, marketplaces tend to utilize standard clauses to shift risks to sellers and consumers, resulting in a deviation between norms (das sollen) and practice (das sein). Moreover, the factual role of marketplaces, which includes controlling transaction systems, managing funds, and determining dispute resolution mechanisms, demonstrates that marketplaces can no longer be positioned as passive intermediaries. This inconsistency has led to weak consumer protection that remains formalistic and reactive, and has not yet ensured fair and comprehensive compensation for losses. Therefore, it is necessary to reconstruct marketplace liability through regulatory strengthening, limiting exoneration clauses, and establishing independent, effective, and substantively just dispute resolution mechanisms.