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Rajah & Tann Regional Round-Up

your snapshot of key legal developments in Asia

Issue 1 - Jan/Feb/Mar 2022



THAILAND

1 June 2022 Implementation Deadline under the Personal Data Protection Act Fast Approaching

The 1 June 2022 effective date of key operative provisions of the Personal Data Protection Act B.E. 2562 (2019) ("PDPA") is fast approaching, with no indication as yet that it will be postponed further (New Effective Date) following two postponements in 2020 and 2021. For more information, click here to refer to our May 2021 Legal Update on the further postponement of the implementation deadline of the PDPA from 1 June 2021 to 1 June 2022. 


Recent media reports have indicated that industry groups are seeking a further postponement, with the Joint Standing Committee on Commerce, Industry and Banking (JSCCIB) comprising of the Federation of Thai Industries, the Thai Bankers' Association and the Board of Trade of Thailand, proposing the view that it should be postponed for a further two-year period.


Full implementation of the PDPA requires the issuance of subordinate laws by the Personal Data Protection Commission ("PDPC").  After a long delay, the members of the PDPC were formally appointed on 11 January 2022 (as announced in the Government Gazette on 18 January 2022 with retroactive effect).  The PDPC consists of the following:


  1. Chairman (Mr. Thienchai Na Nakorn);
  2. Vice-Chairman (the Permanent Secretary of the Ministry of Digital Economy and Society);
  3. Five ex-officio committee members (comprising the Permanent Secretary of the Prime Minister Office, the Secretary-General of the Council of State, the Secretary-General of the Consumer Protection Board, the Director-General of the Rights and Liberties Protection Department, and the Attorney General);
  4. Nine honorary committee members (in the fields of personal data protection, consumer protection, IT and communication, social science, law, health, finance and any other field that must be relevant to, and useful for the protection of personal data); and
  5. The Secretary-General of the PDPC.

Efforts are now reportedly underway to recruit members of the Office of Personal Data Protection Commission, which will be a government agency with the status of a juristic person. Its role will be to promote and support the development of personal data protection. 


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Digital Platforms – New Law may be Enacted in 2022

The Electronic Transactions Development Agency ("ETDA") has proposed a draft Royal Decree on Supervision of Digital Platform Services which are Subject to Prior Notification under the Electronic Transactions Act B.E. 2544 (2001) ("draft Royal Decree"). 


Under this draft Royal Decree, a digital platform operator is required to notify the ETDA before operating its business and meet certain reporting obligations. The draft Royal Decree also sets out obligations for certain digital platform operators operating outside of Thailand, such as the obligation to appoint a Point of Contact. 


The draft Royal Decree went through a further public hearing process from 10 to 25 March 2022, with comments to be submitted to the Council of State for further review of the draft. 


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Amended Copyright Act to Take Effect on 22 August 2022

On 24 February 2022, the Copyright Act (No. 5) B.E. 2565 was published in the Government Gazette and will take effect on 22 August 2022.  The amended law adds provisions related to exclusion of liabilities of service providers in respect of copyright infringement.


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New Guidelines on Unfair Trade Practices

The unfair trade practices language in Section 57 of Thailand's Trade Competition Act B.E. 2560 (2017) ("Act") serves as a catch-all provision prohibiting practices which are unfair and cause damage to other business operators, regardless of whether the business operator is market dominant or not. With effect from 19 February 2022, the Trade Competition Commission has issued a new notification prescribing guidelines on the consideration of unfair trade practices in respect of acts causing damage to other business operators ("Guidelines"), repealing and replacing a 2018 notification.


Business operators should be mindful of risk areas under Section 57 of the Act as they may be unaware of the Act’s application to non-dominant operators. The Guidelines provide some guidance in this regard, as well as guidance on steps which can be taken to review the defensibility of business practices such as trade programs. For more information, click here to read our Legal Update which highlights some of the key elements of the Guidelines.


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New Division of the Civil Court Established for Online Trade Cases

In response to the increasing number of e-commerce-related complaints filed by consumers, a new division of the Civil Court called the Online Trade Division was established on 27 January 2022. Pursuant to the Announcement of the Court of Justice Management Committee published in the Thai Government Gazette on 20 December 2021, the Online Trade Division is intended to hear disputes involving "online trade cases".  The key requirement is that, in order to constitute an online trade, the trade or service agreement must be made via an online platform. 


Without appointing an attorney, consumers are able to file their own complaints using either an online court filing system or the standard procedure for complaint-filing in the Civil Court. There is no need to have full details of the defendant, with only the profile of the defendant on the platform (e.g. account/username) being sufficient. All proceedings will be conducted online, with paperless pleading, online hearings and e-signatures on pleadings available. The court's judgement may also be made in electronic form.


With this amendment, it is expected that the number of court cases relating to online trading will substantially increase.


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Please note that whilst the information in this Update is correct to the best of our knowledge and belief at the time of writing, it is only intended to provide a general guide to the subject matter and should not be treated as a substitute for specific professional advice.

 

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