Legal Liability of Marketplaces for IPR Infringements on MSME Products Following the ITE Law Amendment

Abstract

Indonesia's rapid e-commerce growth has made User-Generated Content (UGC) marketplaces central to the digital economy, while also increasing civil cyber infringements of intellectual property rights (IPR) affecting Micro, Small, and Medium Enterprises (MSMEs). Counterfeit trademarks and copied industrial designs sold through predatory pricing threaten brand goodwill and business sustainability. This study analyzes the shift in marketplace legal liability from passive Safe Harbor immunity toward risk-based liability after Law Number 1 of 2024, the Second Amendment to the ITE Law. Using normative legal research with statutory, conceptual, and comparative approaches, including comparison with the European Union's Digital Services Act (DSA), the study finds that the phrase “reliable and responsible” in Article 15(1) reconstructs a Statutory Duty of Care. Marketplaces may no longer rely solely on reactive Notice and Take Down mechanisms where passive omission or gross negligence toward recurring IPR infringements is established. Implementing regulations should adopt Notice and Action and Notice and Stay Down mechanisms, Trusted Flagger criteria, and vicarious liability to strengthen legal certainty and Indonesia's digital economic sovereignty.