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 7, 2022

Thailand Opens Public Hearing Period on Measures for Cross-Border Transfer of Personal Data

Subscribe to Updates

Thailand’s Office of the Personal Data Protection Committee (PDPC) has opened a public hearing period on its draft notification regarding cross-border transfer of personal data. The public hearing is open through October 24. The notification, once issued, will supplement the principle of cross-border transfer of personal data outside of Thailand set out in the Personal Data Protection Act (PDPA).

The notification sets out the following key matters:

Definitions

  • “Transfer of personal data” means any sending or transferring of personal data by a transferor of personal data, either by way of a physical transfer or a remote transfer through a computer system or an internet network to the recipient of the personal data. It does not include sending personal data through an intermediary by transiting between computer systems or internet networks, or any storing or retaining of personal data, either permanently or temporarily, by a cloud computing service provider, whereby the personal data transferor and the personal data recipient (1) are not making the order, (2) are not involved with any data selection or the content of the personal data sent and received through the computer systems or internet networks, or (3) have the purpose of entering into an agreement or any juristic act.
  • “Binding corporate rules” means the agreed terms or policy on personal data protection made between the personal data transferor and the personal data recipient to establish appropriate measures for safeguarding personal data within a group of corporations or companies.
  • “Standard contractual clauses” means the contractual terms made between the personal data transferor and the personal data recipient to establish appropriate measures for safeguarding personal data.
  • “Code of conduct” means a code that sets out the obligations of a personal data transferor and a personal data recipient outside of Thailand.
  • “Certification” means an undertaking in relation to safeguarding personal data, in order to establish appropriate personal data safeguarding measures.

Binding Corporate Rules

For cross-border transfers within a group of corporations or companies, binding corporate rules (BCRs) can be established and submitted to the PDPC for approval. The BCRs must adhere to the following minimum standards:

  • The effectiveness and legally binding nature of the BCRs apply to each company or entity within the group, including the data recipient, data processor, and data transferor, and the members belonging to the group, as well as their employees, staff, or persons related to the transfer or receipt of personal data within the group.
  • The BCRs must comply with Thai laws on personal data protection.
  • The BCRs must contain certification of data subject rights under the PDPA and sub-regulations.
  • The BCRs must contain measures on personal data protection in relation to personnel, processes, and security measures in accordance with the required technology standards for personal data protection.

Appropriate Safeguards

In accordance with section 29, paragraph 3, of the PDPA, a personal data transferor may transfer personal data to a recipient outside of Thailand when procuring appropriate safeguard measures by way of “standard contractual clauses,” “code of conduct,” or “certification.” Such appropriate safeguards must at least ensure the enforceability of the data subject’s rights and effective legal remedial actions, as provided in the annexes of the notification.

The appropriate safeguards must at least have the following:

  • Effectiveness and legal enforceability.
  • Compliance with Thai laws on personal data protection.
  • Certification of data subject rights under the PDPA and sub-regulations.
  • Measures on personal data protection in relation to personnel, process, and security measures in accordance with the required technology standards for personal data protection.

The standard contractual clauses must be filed with the PDPC. The appropriate safeguard measures must be enforceable under Thai law, and they must provide data subject rights under Thai law. Such rights must also be enforceable and provide remedial rights for data subjects as stipulated under Thai law.

The notification also sets out standard contractual clauses for controller-to-controller and controller-to-processor international transfers. The clauses primarily stipulate the obligations of the transferor and the recipient, recognize the enforceability of the PDPA provisions on personal data protection, and ensure the ability of data subjects to exercise their rights (in the form of third-party rights).

For more information from Tilleke & Gibbins’ data privacy team regarding the draft notification, or any aspect of compliance with PDPA requirements, please contact Athistha (Nop) Chitranukroh at [email protected], Nopparat Lalitkomon at [email protected], Gvavalin Mahakunkitchareon at [email protected], or Thammapas Chanpanich at [email protected].

Related Professionals

Industries

Technology

Location

RELATED INSIGHTS​ 

May 17, 2023
In Myanmar, a Union Tax Law is enacted each year to announce the rates of tax set out in the Income Tax Law 1974, the Commercial Tax Law 1990, and the Special Goods Tax Law 2016. The Union Tax Law 2023 (UTL 2023) came into force on April 1, 2023. It sets the rates of special goods tax (SGT), income tax (IT), and commercial tax (CT) for the period of April 1, 2023, to March 31, 2024, and exempts certain goods and services from these taxes. The key changes implemented by the UTL 2023 are summarized below. Special Goods Tax The UTL 2023 exempts battery electric vehicles (BEVs) from SGT. At the same time, it increases the rate of SGT on imported liquor. Previously, the rate of SGT ranged from 190 MMK per liter to 60 percent of the per-liter price of imported liquor in the previous fiscal year. The UTL 2023 raises the minimum rate to 209 MMK per liter while leaving the upper rate unchanged. Commercial Tax and Customs Tariffs BEVs imported into Myanmar were made exempt from CT under the Law Amending the Union Tax Law 2022. The UTL 2023 extends the exemption until the end of the 2023–24 fiscal year, along with two- and three-wheeler BEVs, BEV batteries, and related parts for specific use in BEVs. The CT exemption for battery charging services for BEVs, also introduced in 2022, has similarly been extended. Following enactment of the UTL 2023, the Ministry of Planning and Finance (MOPF) issued Notification No. 31/2023, reducing to zero the customs tariffs on imported BEVs, including those imported completely built up (CBU), completely knocked down (CKD), or semi-knocked down (SKD). The tariffs on spare parts and materials for BEVs have also been reduced to zero. In addition to exempting BEVs from
Read More
May 15, 2023
Southeast Asia’s remarkable growth as a destination for foreign investment—including a 42 percent increase in 2021, according to a joint ASEAN-UNCTAD report—has brought with it innovation as well as the desire to protect that innovation. Investors are increasingly seeking to patent the proprietary technology that is a crucial component of so many businesses today, and a burning question for patent applicants is whether artificial intelligence (AI) technology and software are patentable in Southeast Asia. The short answer is that it depends, as the patent laws in Southeast Asia are not uniform. Is it Patentable? While AI tools tend to be newer, the older and more familiar question is whether computer software is patentable, and many jurisdictions do have specific rules on this issue. Pure software, or software characterized only by source code, may not be patentable, but it can be protected under copyright laws. AI-related software may involve complex algorithms, datasets, and training methodologies that can be challenging to disclose in a manner that satisfies the enablement requirement in practice. Algorithms, mathematical methods, and abstract ideas are often considered non-patentable subject matter in many jurisdictions. While software implementing AI may involve innovative algorithms, securing patents for algorithms alone can be challenging in some jurisdictions. Also, the patent laws of Indonesia, Myanmar, Thailand, and Vietnam specifically list computer programs as unpatentable subject matter. However, a possible workaround would be to describe the software as connected to a tangible medium. This method could overcome an unpatentable subject matter rejection during substantive examination. Furthermore, in Indonesia, a computer program can be patentable if its characteristics (i.e., instructions) have a technical effect and function to solve a tangible or intangible problem. The most liberal of Southeast Asia’s patent regimes—Singapore’s—even addresses AI innovations. The country has a special fast-track scheme for examining AI patent
Read More
May 9, 2023
The significance of artificial intelligence (AI) is rapidly increasing worldwide, and Southeast Asia is no exception, as it plays a leading role in the technological development of many industries. AI has already proven its importance for driving business growth in areas such as e-commerce, finance, and healthcare, but its remarkable potential also raises concerns around privacy. As AI systems are designed to collect and process large amounts of data to improve their operation, it is necessary to balance the development of technology with the protection of individuals’ privacy. Current Frameworks in Southeast Asia This concern has been on regional policymakers’ agendas for many years. The ASEAN Framework on Personal Data Protection, which was adopted in 2016, is not legally binding and has no enforcement mechanism, but it serves as a guide for ASEAN member states in developing their own data protection laws and regulations. Domestic data privacy laws are currently in force in five ASEAN member countries—Indonesia, Malaysia, the Philippines, Thailand, and Singapore—while Vietnam’s Personal Data Protection Decree is scheduled to take effect on July 1, 2023. This presents a challenge for ASEAN members, as adopting AI-related technology can further complicate data protection efforts due to the amount of personal data AI systems collect, as well as the complexity of the data used to train the AI algorithm. Some ASEAN members have also made progress in regulating AI. For instance, Singapore released the Model AI Governance Framework in 2019 and launched the AI Governance Testing Framework and Toolkit in 2022—the world’s first such framework. Similarly, Thailand issued the Artificial Intelligence Ethics Guideline in 2019 to help government agencies in the development, promotion, and use of AI, and in 2023 adopted the Thailand Artificial Intelligence Guidelines to help the private sector develop AI-related work. These guidelines primarily focus on principles
Read More
April 25, 2023
As in many countries around the world, IP laws in Southeast Asia do not currently specify whether works generated by artificial intelligence (AI) are protected by copyright, and there is also uncertainty surrounding the issue of ownership with respect to works created by AI. While changes to the IP legal framework are expected to respond to the rapid development of AI technologies, existing copyright laws of most countries in Southeast Asia explicitly impose the requirement of a human author for copyright protection to arise. AI-Generated Works and the Law This is similar to the position in the United States, where the US Copyright Office issued a policy statement in March 2023 reiterating the US Copyright Act’s requirement of human authorship to register copyright works. The policy document states that when an AI technology determines the expressive elements of the output, the generated materials do not fulfil the human authorship requirement. However, the US Copyright Office also clarified that certain works containing AI-generated materials may nonetheless contain sufficient human authorship for a copyright claim, such as when a human selects or arranges the AI-generated materials in a sufficiently creative way for the resulting work as a whole to constitute an original work of authorship, or when an artist modifies material originally generated by AI technology to a degree that meets the standard for copyright protection. This is distinguishable from the position in countries such as the UK and Hong Kong, where absent specific provisions addressing AI-generated works, such works may arguably be considered by some as computer-generated works, with authorship assigned to the person who arranges for creation of the work. New Challenges from Generative AI The ongoing legal uncertainties surrounding the ownership and protection of AI-generated works create practical challenges for businesses that use or develop generative AI tools.
Read More