On November 14, 2023, Thailand’s Personal Data Protection Committee (PDPC) published a draft notification on collection of personal data regarding criminal records. The draft notification aims to provide clarifications and prescribe further criteria for processing criminal record data under the Personal Data Protection Act (PDPA), which generally requires the processing of criminal records to be carried out under the control of the relevant official authority under the law or under a data protection measure implemented according to rules prescribed by the PDPC. After its eventual passage, the draft notification will have important implications for businesses’ recruitment and human resources activities in relation to individuals with criminal records. Key aspects of the draft notification include the following: “Personal data regarding a criminal record” and “criminal record data” denote personal data related to the investigations of criminal offenses, criminal prosecution, or criminal punishment that is official information or certified by the relevant supervisory authority, regardless of whether that action is connected to a final judgment. Under the draft notification, data controllers may process criminal record data for the purpose of a recruitment process, checking the qualifications of personnel, and considering the suitability of a person for a position if the processing activities are required by law or when a data controller obtains explicit consent from the data subject. Furthermore, the necessity of processing the criminal record data must be announced at the beginning of the recruitment process. Data controllers’ requests for explicit consent to collect a data subject’s criminal record data must also notify the data subject of the consequences of not providing consent or withdrawing consent. The draft notification sets the allowable retention period for criminal record data at a maximum of six months from the end of the processing activities specified above. After the retention period ends, the criminal

On October 3, 2023, Thailand’s Board of Investment (BOI) issued a new regulation clarifying the eligibility criteria for investment promotion under the BOI category “5.10 Development of software, platforms for digital services, or digital content.” To be eligible for BOI promotion under the digital activity category, projects must meet criteria related to local development, minimum investment amount, machinery and equipment, and development processes. These criteria for category 5.10 activities, along with the latest clarifications from the BOI, are detailed in the table below. Tax Incentives The BOI also clarified the method for calculating corporate income tax (CIT) exemptions. The CIT cap amount is calculated on an annual basis from the prescribed expenses incurred after applying for BOI promotion and occurring during the year for which the CIT exemption is claimed. The allowances include 100% of expenses for salaries for newly hired Thai IT personnel, technology-related training, and obtaining quality standards (such as ISO 29110). The revenue of projects that qualify for CIT exemption must be from sales or services directly related to software, platforms for digital services, or digital content developed as promoted by the BOI, including licensing fees, subscription fees, pay-per-use expenses, in-app purchase fees, usage fees, revenue sharing, advertising fees, and so on. For more details on BOI promotion for digital activities, or on any aspect of investment promotion in Thailand, please contact Athistha (Nop) Chitranukroh at [email protected] or +66 2056 5600, Napassorn Lertussavavivat at [email protected] or +66 2056 5662, or Thammapas Chanpanich at [email protected] or +66 2056 5561.

Four decisions from the Expert Committee under Thailand’s Personal Data Protection Act B.E. 2562 (2019) (PDPA) indicate that there will no longer be any relaxation of PDPA enforcement. The enforcement of Thailand’s seminal data protection law had been relaxed for more than a year when, on October 18, 2023, the Personal Data Protection Committee (PDPC) published the first decision made by the Expert Committee on the imposition of administrative measures against a company pursuant to authority granted to it under the Notification of the PDPC Re: Rules for the Consideration of the Imposition of Administrative Penalties by the Expert Committee B.E. 2565 (2022), which was one of the first subordinate regulations issued under the PDPA. Shortly thereafter, on October 19, October 25, and November 15, three additional Expert Committee decisions were published. These three decisions made by the Expert Committee are summarized below. October 18 Decision The complainant in this case lodged a complaint with the Expert Committee alleging that an insurance company contacted him to offer the company’s products without his consent. The complaint further claimed that when the complainant requested the company to disclose how his personal data had been acquired and asked the company to stop contacting him through any channel, the company did not take any action on the requests. The insurance company appeared to have obtained the personal data of the complainant from another source prior to the PDPA becoming fully effective (i.e., June 1, 2022). As the Expert Committee explained in its order, the company failed to comply with its obligations under the PDPA regarding the collection of personal data from another source, which requires consent as a legal basis; failed to comply with the grandfather provision by not publicizing opt-out procedures to enable the data subject to withdraw his consent easily; and

Under Thailand’s Royal Decree on Digital Platform Services, domestic and in-scope overseas digital platform operators that are required to notify the Electronic Transactions Development Agency (ETDA) of their operations must do so by November 18, 2023 (or by August 20, 2024, for small or low-impact platforms). This step is one of the essential requirements of the royal decree. Other key information on complying with the royal decree is as follows: The royal decree aims to regulate the operation of “digital platform services,” which refers to the provision of electronic intermediary services that create a connection between consumers, merchants or businesses, or other types of users in order to create an electronic transaction in whole or in part, regardless of whether a service fee is charged. The regulated digital platform services do not include digital platform services intended for offering the goods or services of a single digital platform service operator or an affiliated company that is an agent of the operator, irrespective of whether the goods or services are offered to third persons or to affiliated companies. The royal decree has extraterritorial effect, whereby overseas operators targeting the Thailand market are subject to the royal decree if their services are accessible in Thailand. Overseas operators are required to appoint a local coordinator in Thailand to coordinate with the ETDA. Compliance and Enforcement The ETDA released nine subordinate regulations under the royal decree; these took effect on August 21, 2023 (except for rules on platforms’ terms and conditions, which will take effect on January 3, 2024). Some important points on compliance and enforcement in the subordinate regulations, along with procedural guidance, are listed below. The ETDA has been emphasizing that both domestic and overseas digital platform operators need to notify the ETDA of their operations within the specified timeline (i.e.,