You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

October 1, 2019

The Reach and Liabilities of the Personal Data Protection Act

Subscribe to Updates
Bangkok Post: Human Resources Watch

Earlier this year, Thailand enacted its Personal Data Protection Act (PDPA), which was published in the Government Gazette on 27 May 2019. Most parts of the PDPA will become effective one year after this, on 27 May 2020. As the PDPA will have broad impact across multiple aspects of most businesses—including their human resources operations—lawmakers provided this one-year period for those affected to prepare for compliance with the PDPA.

While the definitions and mechanics of the law in relation to HR operations were covered in a previous Human Resource Watch column (29 April 2019), this article will take a closer look at the civil, criminal, and administrative penalties applicable in the event of non-compliance with the PDPA.

It is important for employers to understand that these liabilities apply to them even if they outsource their company’s HR work. Some employers misunderstand that if they turn over their HR functions to an HR service provider, the employer will not have any liability under the PDPA. Indeed, even if HR functions are outsourced, the employer will still have the same liabilities under the PDPA if the HR service provider breaches the PDPA.

For instance, if an employer assigns an outsourced provider to manage the paying of wages and calculation of social security deductions, where the providers must collect, use or disclose the personal information of employees, both the employer and the HR service provider will be acting in roles defined by the PDPA. In this scenario, the employer would be considered a ‘data controller’, while the HR service provider would be considered a ‘data processor.’ Therefore, both the employer and the HR service provider will have potential liability under the PDPA.

If the employer or HR service provider violates a PDPA provision, such as selling employees’ personal information to a financial institution or other third party without the employees’ consent, the employer as data controller would not only be liable for paying compensation to the employees who own the personal information, but could also face criminal penalties and administrative liability under the PDPA. In addition, the HR service provider, as a data processor, could face civil liability.

The PDPA provides for three types of potential liability for violation of its provisions:

1. Civil Liability

Employers or HR service providers who are found to have violated the PDPA must pay compensation to the employees who own the personal information and who received damages from the violation, regardless of whether the violation was done intentionally or negligently, except where the offender can prove that the damages were caused by force majeure or the employees’ own actions. In addition, offenders who can prove that the violation was a result of their compliance with an order of a government officer exercising his or her duties under the law will not be liable. The compensation includes all necessary expenses associated with actual or likely damages, whether for purposes of prevention or mitigation.

In addition, the court is entitled to award punitive civil damages, up to two times the amount of actual damages.

The prescription period for claiming compensation under the PDPA is three years from the date that the employees who own the personal information became aware of the violation and the identity of the offenders, or ten years from the date on which the violation of the personal data took place.

2. Criminal liability

If an employer as data controller violates the PDPA by the use or disclosure of personal information without consent in a manner that is likely to cause the other person to suffer any damages, impair his or her reputation, or other reason, the offender will face imprisonment of up to six months, a fine of up to Baht 500,000, or both.

In addition, if the offender uses or discloses personal information in order to receive unlawful benefits (or secure benefits for others), the criminal penalties that the offender will face include imprisonment for up to one year, a fine of up to Baht 1 million, or both.

The criminal offence under the PDPA is a compoundable offence, which means that it can be settled by negotiation and agreement between the parties before a court issues a final judgment.

In a case where the offender is a juristic person and the offence occurs as a result of the order or act of any director, manager, or other person in a role of responsibility, those persons must be liable for the relevant penalties. Likewise, these persons can also be penalized for their omission of an instruction or act resulting in the commission of the offence by the juristic person.

3. Administrative liability

The PDPA also imposes administrative liability on any offender in the form of an administrative fine from Baht 500,000 to Baht 5 million, depending on the nature of the violation. The PDPA establishes an expert committee with the authority to order offenders to pay an administrative fine, issue an order for rectification, or issue a warning to the offender. In determining whether to impose an administrative fine, the expert committee will consider the severity of the circumstances of the offence, the size of the business of the data controller (e.g., an employer) or data processor (e.g., HR service provider or HR department), or other circumstances.

It is possible that specific classes of data controller could be exempted from the application of all or part of the provisions of the PDPA (in addition to the excepted activities, on which see the previous article on this topic). However, these exemptions would have to be made by royal decree.

As it stands now, though, exceptions for classes of person have not been promulgated, and employers should not expect that they will be automatically exempt from PDPA compliance. Recent news from Europe of companies being heavily fined for their violations of the EU’s General Data Protection Regulation (upon which much of the PDPA is based) underline the dangers of continuing to neglect the protection of personal data. With Thailand only months away from joining the EU and other jurisdictions around the world in implementing a robust data protection regime, businesses must ensure the compliance of all of their operations—including in-house or outsourced HR functions—to avoid such costly penalties.

 

This article was originally published in the Bangkok Post and is reproduced here with permission and thanks. The original story can be viewed on the Bangkok Post website.

Related Professionals

Practices

Employment

Location

RELATED INSIGHTS​ 

February 22, 2021
Following the recent imposition of sanctions on Myanmar individuals and companies by the US, the UK and Canada have now imposed new sanctions. As with the US sanctions, these new measures impact UK and Canadian citizens and companies, and non-UK and non-Canadian companies and citizens with interests in those jurisdictions. The EU has indicated that it is planning to issue similar sanctions in the near future. New UK Sanctions In addition to the 16 individuals already sanctioned by the UK government, on February 18, 2021, the UK government announced that three individuals have been sanctioned for serious human rights violations and are now subject to asset freezes and travel bans. The full list of Myanmar individuals and companies sanctioned by the UK is available on the website of the Office of Financial Sanctions Implementation. Breaches of UK financial sanctions are criminal offences punishable in the UK by up to 7 years imprisonment and heavy fines. New Canadian Sanctions Also on February 18, timed to coincide with the UK sanctions, new Canadian sanctions were imposed on nine individuals. As with the UK, Canada already had a number of individuals in the Myanmar military on its sanctions list, and the new additions bring the total number of individuals sanctioned by Canada to 54. All assets of these individuals in Canada are now frozen, and they are banned from travelling to Canada. Canadian businesses or entities may not do business with any of the 54 individuals. Full details of the impact of the sanctions are available on the Government of Canada’s website, as is a database of the Myanmar individuals and companies subject to them. Breach of Canadian sanctions carries with it up to 5 years’ imprisonment in Canada and/or a large fine. Other Countries The EU is reportedly drawing up sanctions
Read More
January 26, 2021
On January 1, 2021, the government of Vietnam issued Decree No. 152/2020/ND-CP dated December 30, 2020, providing guidance concerning foreigners working in Vietnam (Decree 152). Foreign investors and expatriates should be aware of some notable new points.
Read More
January 12, 2021
Due to the resurgence of the COVID-19 pandemic in Thailand since December, 2020, Thailand’s Ministry of Labor recently published two regulations under the Social Security Act (SSA) in the Government Gazette: The Regulation on Entitlement to Compensatory Benefits in the Event of Unemployment Due to Force Majeure from the Pandemic of Dangerous Communicable Disease Under Relevant Law Relating to Communicable Diseases B.E. 2563 (2020) (the Force Majeure Regulation); and The Regulation on Determination of the Amount of Contributions to the Social Security Funds B.E. 2563 (2020) (the SSF Contribution Regulation). Details of the two regulations are provided below. The Force Majeure Regulation This regulation is similar to a previous regulation from April, 2020, during the first wave of the pandemic, stating that the definition of force majeure under the Social Security Act B.E. 2533 (1990) (the SSA) includes hazards from pandemics of dangerous communicable diseases (including COVID-19). This definition therefore affords protection to insured persons (i.e., employees) in the event that the COVID-19 pandemic results in their being unable to work, or their employers being unable to operate their business normally. This regulation allows the Social Security Office (SSO) to pay compensation to employees who: are insured persons who qualify to receive compensatory benefit in case of unemployment in accordance with the SSA; have to cease working temporarily during the period from December 19, 2020 onwards; and do not receive wages from their employer during the temporary cessation. This applies only if the circumstances above result from the following force majeure events related to hazards from COVID-19 (or other pandemics of dangerous communicable diseases that affect the public under the Communicable Diseases Act B.E. 2558 (2015)): The employee cannot work, or the employer does not allow the employee to work, because of quarantine or to comply with a COVID-19
Read More
November 3, 2020
Many Thai and international companies have expanded rapidly into Myanmar in recent years, in what had seemed to be an unstoppable expansion of cross-border trade resulting from the country’s emergence back onto the global stage. For those companies, the COVID-19 situation in Myanmar has been a cause for much concern and uncertainty—doubly so for those who had hired staff in the jurisdiction, as a lack of clarity regarding their obligations as employers was compounded by a lack of information on the situation on the ground.
Read More