New PDPA Subordinate Regulations

According to Section 16(4), 73 paragraph 2, and 90 paragraph 2 of the Personal Data Protection Act B.E. 2562 (2019) or “PDPA”. The PDPA is Thailand’s very first law in relation to protection of personal data and put in place effective remedial measures for data subjects whose rights to be protected if their personal data are violated. The PDPA established the Personal Data Protection Commission or PDPC to govern the PDPA and also established the Office of the PDPC or OPDPC to act on the administrative matters and act as the secretariat of the PDPC.

On 29 June 2022, the two legislations under the PDPA were approved by the PDPA and published in the Royal Gazette on 17 July 2022 namely;

  1. The Criteria for Filing, Refusal of Acceptance, Dismissal, Consideration and Timeframe for Consideration of Complaint B.E. 2565 (2022)
  2. The Qualifications and Prohibitions, Term of Office, Vacate Office, and Other Operations of the Expert Committee B.E. 2565 (2022)

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The Criteria for Filing, Refusal of Acceptance, Dismissal, Consideration and Timeframe for Consideration of Complaint B.E. 2565 (2022)

1. In case that any data controller and the data processor and their employees and contractors breach any provision of PDPA, the data subject is able to report to the expert committee by filing a complaint either in a form of hard copy or electronic (hard copy can be either directly submitted to the PDPC or sent by a registered mail).

2. Details of complaint shall include name, address, phone number, email of the reporter or attorney, copy of the reporter’s ID card, passport or any identity document issued by the government.

In the case that the data subject has authorized the attorney, the power of attorney with a complete specification of assigned duties and correct stamp duty together with the attorney’s certification of a copy ID card, passport, or any identity document issued by the government must be submitted together with the complaint.

The complaint must specify facts and details of the data breach in which the data controller and the data processor and their employees and contractors have committed against any provision of the PDPA and also specify the effect of such breach. All relevant evidence must be attached in order to support such a complaint. Moreover, the reporter must specify the request of ordering the data controller or data processor to comply in accordance with the PDPA. There must be a statement certifying that the statements in the complaint are true.

Please note that the reporter can be data subject, attorney or any person who is the holder of parental responsibility over the child (parents), custodian and curator of the data subject.

3. The competent official shall review the complaint and all evidence within 15 days since they receive such complaint to consider whether they will accept the complaint for further consideration. The competent official will contact the reporter in case of more information is needed. Please note that the competent official will accept the complaint and pass it to the expert committee only if all information is correct and complete. After accepting such complaint, the reporter will receive an acknowledgement receipt and number of complaints.

The matters that the competent official must consider within such 15 days are as follows:

  • Whether the action specified in the complaint is violation of the provisions in PDPA.
  • Whether the complaint has grounds as specified by PDPA and it is reasonable to make a complaint.
  • Whether the expert committee has the authorization to consider the complaint.

The competent official will then pass such complaint to the expert committee for further consideration. After receipt of the complaint, the expert committee will consider such complaint and the results may categorize as follows:

  • Dismissing, if the expert committee considers that it has no ground under the PDPA.
  • Not accepting complaint, if the evidence is incomplete and has not been categorized as a data breach.
  • Setting a conciliation session, if the complaint is seen to be settled by conciliation proceedings
  • Rendering the punishment as an administrative fine.

In the case that the expert committee deems that consideration of such a complaint is an important legal issue, the expert committee shall pass this complaint to the PDPC for further consideration.

The expert committee must inform the reporter of the result of the complaint with its reason in relation to the result.

The Qualifications and Prohibitions, Term of Office, Vacate Office and Other Operations of the Expert Committee B.E. 2565 (2022)

  1. The PDPC shall appoint a group(s) of expert committees in accordance with their expertise. Each group consists of one chairperson and at least 4 members.
  2. A person to be appointed as chairperson of the expert committee and its members must have qualifications such as being Thai nationality, not lower than 25 years old, not being bankrupted or having been previously dishonestly bankrupted, not being an incompetent or quasi-incompetent person, not having been previously fired, dismissed or discharged from official service, government agency or state enterprise or private agency on the ground of dishonest performance of duties or having committed severe wrongful conducts.
  3. Moreover, the chairperson and members shall be vacated from office if death, resignation, imprisonment by the court verdict, disqualification as specified above or dismissing by the PDPC due to failure to pass the performance evaluation or commit disgraceful.
  4. The chairperson of the expert committee and the members shall hold office for a term of four years.
  5. The meeting of expert committee shall consist of one-half of all members to constitute a quorum. The decision of the meeting shall be made by a majority of votes and each has one vote. In the case of equal votes, the chairperson shall have the casting vote. The meeting may be taken placed by an electronic mean.
  6. Any member who has any interest in the matter being considered in the meeting must inform all members regarding such interest prior to the meeting and such member shall be prohibited from attending such meeting.
  7. The Secretary-General of PDPC shall appoint a maximum of two secretaries to each expert committee.
  8. If there is a joint meeting of more than one expert committee. The chairperson of the expert committee holding the most senior level shall preside over the meeting. This joint meeting of the expert committee shall all consist of not less than 6 members and the members attended the meeting must be from all committee invited to attend the meeting in order to constitute a quorum.

Thailand Promotes Electric Vehicle (EV) by Reducing Excise Tax

On 12 May 2022, the Cabinet of Thailand has approved in principle a draft Royal Decree Reduction of  Yearly Excise Tax Rate for Completely Built Electric Vehicles B.E. …. (“Draft Royal Decree”)  as proposed by the Ministry of Transport . The Draft Royal Decree will be reviewed by the Office of the Council of State with consultation of the   Office of the National Economic and Social Development Council. Afterwards, the Ministry of Transport and other related ministries shall take suggestion from the Ministry of Transport, Ministry of Industry and Office of the National Economic and Social Development Council into consideration.

The tax measure in reducing the excise tax rate under Motor Vehicle Act B.E. 2522(1979) to  80% is applied for completely built EV cars registered between 1 October 2022 to 30 September 2025 for 1 year since their registration date. The incentives vary depended on the types and models of vehicle as follows:

Please note that the yearly excise tax rate for completely built electric vehicles for item nos. 2-8 will be reducing for 50% of the rates as specified in the Motor Vehicle Act B.E. 2522(1979).

AMC – Tools for solving NPLs

Asset Management Company (AMC) does business through purchasing or auctioning NPLs (non-performance loans) from commercial banks or financial institutions and manages such NPLs through restructuring of NPLs. The AMC business is governed by the Bank of Thailand (BOT), where the selective NPLs from the banks will be sold to the AMCs through auction. The banks will notify the debtors and creditors before and after the auctions of debt. AMCs that win such auctions have the duty to inform the debtors of their rights to claim the debt in place of the banks. Still, the original right to claim the capital, interest, and other relatives’ rights and obligations agreed with the banks are still enforceable. The debtors just have to perform their obligations with the AMCs.

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Under this current situation, a joint venture agreement between AMCs and commercial banks is to be entered into giving the banks more flexibility in managing bad debts and also helping AMC in playing a key role in the country’s bad asset management as some have capital limitations in terms of buying distressed debt.

According to the published news in May 2022, All Inspire Development Plc. is one of the companies operating AMC businesses. The company aims to buy the NPLs for about 500-1000 million baht with an estimated return of around 4 – 4.5 billion baht. 

Based on Bangkok Commercial Asset Management or BAM’s forecast, the value of NPLs from the banks will be around 200-300 billion baht, and other financial institutions will be around 9 billion baht.

Under the BOT rules and regulations, a limited company or public limited company with a registered capital not less than 25 million baht and having a purpose of business to be transferred of NPLs from the banks or financial institutions to manage the NPLs are able to apply for operating of AMCs business with the BOT. The AMC that did not comply with the regulations and rules set by the BOT will result in revocation of registration. 

The joint venture entities will be operated for not more than 15 years from the date of approval for their operation, and after that, those will need to be liquidated or changed of shares proportion held to be in accordance with the relevant laws and regulations governed their business. 

The booming of AMC business is the gravely additional tool or assistance for the banks to manage the NPLs during this downhill of economic due to the pandemic. However, this AMC tool is not a long-term resolution in which the government is needed to launch and implement the economic policy to solve this problem on a long-term basis.

Author: Panisa Suwanmatajarn – Managing Partner, The Legal Co., Ltd.

Draft Announcement of the Prime Minister  Office and Ministry of Interior on Determining Numbers of Foreigner Who Will Have Residence in the Kingdom B.E. ….

The Cabinet has approved a draft Announcement of the Prime Minister Office and Ministry of Interior on Determining Numbers of Foreigner Who Will Have Residence Permit in the Kingdom B.E. …. (“Announcement”) as proposed by the Ministry of Interior.

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Many foreigners nowadays travel to the kingdom and they would like to have their residence permit for many purposes such as working , investment, marriage or family visitation. All of these foreigners’ entrance can enhance the nation’s economic stability.

According to the Immigration Act B.E. 2522 (1979), the Minister of Interior under approval of Cabinet is able to announce for quotas of foreigners who will have residence permit in Thailand which are not exceeding 100 persons per nationality per year for the year 2021 and foreigners who have no nationality who will have residence permit in Thailand which are not exceeding 50 persons per year. However, those foreigners must receive approval from the immigration officer and Minister of Interior including complying with relevant rules and regulations before granting the residence permit in Thailand.

Announcement of Ministry of Digital Economy and Society Re: Procedures on Notifying, Suspending of Publishing of Computer Data and Exporting Computer Data from System

The Cabinet acknowledged a draft Announcement of Ministry of Digital Economy and Society Re: Procedures on notifying, suspending of publishing of computer data and exporting computer data from system B.E. …. (“Announcement”) prior to its enforcement as proposed by the Ministry of Digital Economy and Society.

Key issues of draft Announcement are as follows:

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  • It is to cancel the Announcement of Ministry of Digital Economy and Society Re: Procedures on Notifying, suspending of publishing of computer data and exporting computer data from system B.E. 2566 (2017)
  • The Announcement has added new definitions of terms which are “Social Media” and “Location of Illegal Data” to be in compliance with those other announcements.
  • Determining types and characters of services of service provider or social media provider being able to prove of compliance with this Announcement so that it will not be fallen under the offence of cooperation or consent in conducting the offence.
    • Service provider that is an intermediary operating service such as routing, artificial intelligence, transitory communication – mere conduit where the intermediary does not involve or contribute such as  transmitting of such computer data, making permanent copy of computer data, storing with public access at a later stage, no editing of data by the service provider and no remuneration, directly or indirectly, from publication, duplicate or modifying of such illegal data.
    • Service provider operating for storing or system caching in a computer network controlling transmission of all data from users or outsider or computer network or artificial intelligence or operating of computer network or automatic artificial intelligence with no involvement or control from service provider.
    • Service provider operating reserving of computer data in its own computer system or network where the information residing on system or network at direction of user without the service provider awareness of the illegal activity and without receiving any remuneration.
    • Service provider operating technical service for information location tools without linking to illegal source and that there is no remuneration or benefit involvement, directly or indirectly, from publication of such illegal computer data.
    • Online social media provider in communication or exchange of information between persons through technology or social network by posting, editing, publishing of computer data through service provider or outsider or automatically through computer system or artificial intelligence and the service provider does not get involved and not receive any benefit, directly or indirectly, from that illegal publishing, copying or editing of data.
    • Service provider other than (1) (2) (3) (4) (5) giving service of other internet access or connect manner through computer network.
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  • Determining notice & takedown policy arranged by service provider to avoid being charged on the ground of cooperating, consenting or acknowledging of offence.
    • Advance notice & take down policy or take down notice in writing is required to be arranged and informed to the public so that the public is able to report to the service provider to suspend or delete publication of illegal data from the computer system.
    • Upon discovery of any service provider or online social media provider publishes illegal data, the service user or outsider can notify the service provider or online social media to suspend publication or erase of illegal data through a daily report or complaint to the police officer or through a complaint form provided by the service provider or online social media.
    • Once the service provider or online social media provider receives the complaint form, it needs to take action in order to suspend the publication of illegal data and make a copy of thereof and send the same to the relevant persons under its control immediately except having reasonable ground or under force majeure event. However, it needs to be acted no later than 24 hours.
  • Determining standard measures according to the industry itself to suspend distribution or delete illegal data by order of the officer.
  • Determining appealing procedures and revocation of officer’s order in case the service provider or social media provider disagree to the order or exercise the right to argue against the officer’s order.
  • Determining litigation procedures in case that service provider or social media provider does not conduct any action according to order to suspend publication, erase or modify the illegal data. The officer must gather the relating evidence of the commission of crime and report the case to the police officer and coordinate with National Broadcasting and Telecommunication Commission or related authorities for further proceedings.

This draft Announcement aims to amend procedures on notification, suspension of publication of illegal computer data for more convenience, quality and suitability to modern technology along with notice & takedown policy or self-report. In addition, it determines more involvement of the officer to tackle the complaint and non-compliance of the service provider which reduces burden of the people or the injured party in complaining to the service provider themselves or the officer.

Civil Partnership Bill and Amendment to Civil and Commercial Code

On 7 June 2022, at Santi Maitree Building Government House, the Cabinet has approved a draft “Act on Civil Partnership Bill (“Act”) and amendment to Civil and Commercial Code (“CCC”)” which were considered by the Council of State.

The purpose of this draft Act is to enact a specific law to support the rights and duties of LGBT+ people and for gender equality and to amend the CCC which is a general law to be in line with the draft Act.

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1. This draft Act consists of 4 Chapters and 46 Sections as follows:

 1.1 Prologue (Sections 1–5) establishes the timeline for law enforcement and various important definitions, especially the term “partners”.

1.2 Chapter 1 registration of a life partners (Sections 6 – 14) prescribing rules and procedures for registration of a life partner.

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1.3 Chapter 2 partners (Sections 15 – 38) dividing into 5 parts as follows:

(1) Part 1 general provisions (Sections 15 – 21) stipulates those provisions of the CCC on the family shall be applied to the partners if there is no specific provision in this Chapter.

(2) Part 2 relationship between partners (Sections 22 – 23)

(3) Part 3 properties between partners (Sections 24 – 27)

(4) Part 4 void of registration of being partners (Sections 28-31)

(5) Part 5 termination of partnership (Sections 32 – 38)

  1. Chapter 3 adopted children (Sections 39 – 44)

1.5 Chapter 4 inheritance (Sections 45 – 46)

2. A amendment to CCC consists of 5 Sections with the purpose of amending Sections 1452 (duplication of Marriage Registration), 1516 (1) (grounds for divorce) and 1528 (termination of right to receive pension) in the order to support the life partner’s matter as well.

New Sub-Regulations under Thailand Personal Data Protection Act

As the Personal Data Protection Act B.E. 2562 (2019) (“PDPA”) has already been enforced, the sub-regulations specifying details of the same are in process of being released. Therefore, every organisation must always well precaution of their duties as a controller or processor regarding keeping, utilising, storing, and transferring of these data which may cause effect to the data subject and may lead to future damage.

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Under this article, we will talk about brief details of sub-regulations issued by the virtue of the PDPA which are  

  • Under the PDPA, data controller and data processor are responsible for keeping record of collection and utilisation of personal data. As such, the announcement by the PDPA Committee effective on 21 June 2022 lay out conditions and how to conduct record of data collection and utilisation. The record must include name of the data controller, name of data processor, DPO including its contact details, types, characters, and purposes of collecting and processing of data and detail of security measures. The form of record can be made in a paper or electronic which can be accessible easily by the relevant officer and data controller once request.
  • However, such above mentioned keeping record is exempted under the announcement by the PDPA Committee effective also on 21 June 2022. The announcement determines the characters of small businesses to be exemption from performing the same such as small and medium enterprises, cooperatives, foundations, or family businesses under their relevant laws. However, if such activities concern sensitive data or may cause effect to the rights and freedom of data subject, the record is still required
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  • In addition, the data controller must arrange for security measures which states under the announcement of the PDPA Committee effective on 21 June 2022 in which such measures shall cover keeping, collecting, using, and disclosing of personal data and include necessary organizational measures, technical measure, or physical measures.
  • Lastly, if the controller or processor fails to uphold their duties under the PDPA, they shall be subject to civil, criminal and/or administrative sanctions. For the administrative sanctions, the PDPA Committee also launches its announcement effective on 21 June 2022 specifying details that the data subject is entitled to conduct once its right under the PDPA has been breached, how the PDPA officer/specialized Committee can proceed to consider and issue its administrative order and administrative penalties that the PDPA officer/specialize Committee can issue  against the data controller or processor who fails to conduct according to the PDPA.

Exemption of Infringement of Technology Protection Measures

Due to the exclusive right of copyright owner upon his/her own created work and the technology protection measures to support and prevent breach of such exclusivity in the digital era, one of the measures is the access control through technology to assist and tackle the issues of breaching of copyright such as setting code or password. If any act violates such measures either by such as hacking the code or decode the password, such act will be considered as breaching of access control measures where the violation act affects the measures to be ineffective. However, with or without the measures, the accessibility of the copyright work is always the issue for certain groups such as the disability or social goods accessibility includes educational purposes in which those should not be obstructed by this measure as it would put more burden on the same accessing to the works. Accordingly, the Ministry of Commerce has released its draft Announcement on Acts Exemption from Violation of Technology Protection Measures under Section 53/5(1) B.E. 2537 (1994)

The essence of this Announcement is to exclude “certain acts causing the technology protection measures to be ineffective” and those will not be considered as technology protection measure violation in which it will be focusing on literary, audiovisual and film works.

The acts under this Announcement which are not considered as violation of technology protection measures are as follows:

1. In case of acts causing ineffective of technology protection measures by the disabled persons or organizations endorsed by the Ministry of Commerce conducting for the benefits of disabled persons, the term of disability can be referred to that as specified in the Copyright Act B.E. 2537 (1994). If the disabled persons or organizations as mentioned above violate technology protection measures under certain acts such as those necessary for making such disable person living its life for audiovisual, film and/or literary works, those will not be considered as violating the technology protection measures. However, measures or systems to prevent others from accessing to the works are still required.

2. Exemptions of violation of technology protection measures in case of audiovisual and film works include the acts of students, researchers, teachers and educational institutes and acts of using some parts of works suitably for teaching or researching. It needs to have reasonable reasons that there is no any other way to arrange for the material for teaching other than violating of technology protection measures. However, measures or systems to prevent others from accessing to the works are still required.

3. Exemptions of violation of technology protection measure in case of audiovisual and film works also include the acts of librarians which are for keeping or copying of works for using in the library as the works got damage or unusable and that there is no way to arrange for such material from any source and that such material shall not be used outside the libraries.

In any way, the acts which are exempted from being violation of technology protection measures shall not be the acts for generating profits and the persons who conduct such acts shall receive the work or its copy legally.

This Announcement will be effective from 23 August 2022 onward.

Draft Act on Repealing the Act on Offences Caused by Check

The cabinet approved in principle the draft Act on Repealing the Act on Offences Caused by Check B.E. 2534 B.E. …. (“Act”) upon the Ministry of Justice proposal. The draft Act will be Thepassing to the Office of the council of State for further consideration and proceedings.

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In this regard, the draft Act  has been proposed  to be in accordance with the principle of enforcing the law for necessity, cancel or amend the law that is unnecessary or not suitable with the presence events, is considered obstacle to life or profession without delay for the benefit of  people and determine the criminal sanction primarily on serious offence according to Section 77 of Thailand Constitution. It is also for being in accordance with Clause 11 of the ICCPR stating that a person shall not be imprisoned for unable to perform according to the contract.

The Act will be expedient to the commercial bank in enforcing their policy to enhance the creditability of check through enforcement of customer screening policy without implementing of criminal sanction.

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This is to reduce enforcing criminal sanction to force performance from civil debtors and save the procedural budget on criminal justice processes including implement domestic law to be in accordance with the international principle and conventions where the authorized government unit approved such draft act.

This Act shall be enforced and implemented after 120 days of announcing on the government gazette has lapsed.

New Law Governing Platform Service Providers

On 1 June 2022, the Cabinet has in principle acknowledged the law governed and controlled the platform service providers.

Keys issues of this law are as follows:

  • The platform service providers who will be required to follow this law are the intermediary service providers, hosting service providers, online platform providers, very large online platform providers and gatekeeping platform providers. The service providers who will be excluded from this law will be such as the service providers who have transactions not more than 10,000 transactions per day, service providers who provide the services for limited groups of service users (services provided in internal organizations) and service providers who provide the services for only goods or services that they are the distributors or manufacturers.
  • Such service providers will need to follow the provisions of this law such as disclosing of transparent report and having system for users to contact with while having problem in using the platforms.
  • Such service providers (except intermediary service providers) will need to have methods or systems for notifying of any infringement or using data illegally including removal or block accession to illegal data.
  • Online platform providers and very large online platform providers will have duty to indicate measures to prevent infringement and damage on platform both on the parts of service providers and service users and the law also indicates liability in case of neglect in performing their duty causing infringement to be occurred.
  • Very large online platform providers will have the duty to appoint an outside specialist to assess risk of system and other risks which may be occurred while using platform as well as disclosing of result of testing of system and factors and grounds leading to offers for services to service users.
  • There is an accreditation of trusted whistle blower system governed by the relevant authority (i.e. Electronic Transactions Development Agency : ETDA). The authority will need to make and update the list of such whistle blower from time to time.
  • The agreement between the service providers and service users will need to be complied with those prescribed by the relevant authority otherwise it will be void.
  • The Trade Competition Committee will be the authority to indicate and announce the list of gatekeeping platform service providers.