Category: News

Andreas Richter and Anuwat Ngamprasertkul

Thailand’s Personal Data Protection Act B.E. 2562 (2019) (“PDPA”)*, which was published in the Royal Gazette on 27 May 2019, was due to be fully enforced one year later on 27 May 2020. On 21 May 2020, however, the Thai government announced a Royal Decree in the Royal Gazette to partially postpone the enforcement of the PDPA by one more year to 1 June 2021 (the “Royal Decree”).

The impetus behind this postponement is the Thai government’s recognition that implementing compliance with PDPA law is complex, and therefore, costly and requires advanced training at all levels. Also, personal data is currently collected and processed by many companies and government agencies to cope with the COVID-19 crisis, which would create major legal compliance issues if the PDPA would now come into full force.

Included in the postponed enforcement of the PDPA are provisions relating to personal data protection, including data collection and use or disclosure of personal data; rights of the data owner; complaints; civil liability; penalties, including criminal liability and administrative liability; and grandfather clauses. However, the Thai government is moving ahead with further establishing the regulatory body and related committee under the PDPA.

The Royal Decree, despite its intention to cover all businesses in Thailand, lists the types of business that will be qualified for this extension, including businesses in the commercial, industrial, construction, energy, public utility, maintenance, transportation, hospitality, communication, banking, insurance and professional industries, among others (see the full list below).

This does not mean that you should not prepare for compliance with the PDPA, however, as the Royal Decree still requires business owners, as data controllers, to have in place security safeguards for personal data in accordance with the standards set by the Ministry of Digital Economy and Society. Therefore, businesses should still have an adequate standard of protecting personal data under their control.

Also, in a competitive world, if businesses can demonstrate that they are fully compliant with the PDPA before their competitors, these businesses will gain the trust of their customers, suppliers, shareholders, stakeholders as well as the general public, and at the same time, mitigate the risk of a data leakage which may cause negative reputational damage and open the door for damaged persons to take legal action against the business owner under general rules, even though the enforcement of the PDPA has been postponed.

In addition, businesses with connections of any means to the European Union are still exposed and are subject to the rules and regulations of the European Union’s General Data Protection Regulation (“GDPR“) and its exterritorial reach, and therefore, are strongly advised to now become compliant with the PDPA which, essentially, is the equivalent of the GDPR.

*The PDPA law is a new law in Thailand that is aligned with the GDPR in the European Union. The PDPA law will change how all businesses operate, setting a high standard for protecting personal data that is collected, stored, disclosed or used for any processing activities. It also sets out important and far-reaching obligations for business owners to respond to new data owner rights, such as the right to access, right to be forgotten, right to withdraw consent and more. In addition, the PDPA law introduces severe penalties for breaches of up to THB 5 million as well as criminal penalties for active directors and responsible officers and double damages to damaged persons.

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Translated Extracted details of the Royal Decree

Rationale

The Personal Data Protection Act B.E. 2562 (2019) has thoroughly specified rules, procedures and conditions for personal data protection mandating every data controller across the country, both public and private sectors, to strictly comply with such rules, procedures and conditions. However, compliance with such rules, procedures and conditions prescribed by law is detailed and complex, and requires advanced technology to provide effective personal data protection in line with the spirit of the law. This has caused data controllers, both government agencies and private organizations, to not be ready to comply with such Act. Moreover, Section 4, paragraph two of the Personal Data Protection Act B.E. 2562 (2019) states that “The exceptions to apply all or parts of the provisions of this Act to any Data Controller in any manner, business or entity, in a similar manner to the Data Controller or for any other public interest purpose, shall be promulgated in the form of a Royal Decree.” For these reasons, it is appropriate to identify the entities and businesses that qualify to be exempted from the Personal Data Protection Act B.E. 2562 (2019) during the grace period and in the promulgation of this decree.

The essence of the Royal Decree

• This decree defines Data Controllers that are entities and businesses exempted from specific provisions of the Personal Data Protection Act B.E. 2562 (2019).
• This decree shall come into force from May 27, 2020 until May 31, 2021.
• The provisions of Chapter II, Chapter III, Chapter V, Chapter VI, Chapter VII and Section 95 of the Personal Data Protection Act B.E. 2562 (2019) shall not be applied to data controllers that are the entities or businesses specified in the list attached to this decree.
• For the benefit of protecting personal data, the data controller under the list shall provide security measures for personal data in accordance with the standards prescribed by the Ministry of Digital Economy and Society.

List attached to the Royal Decree Specifying Data Controllers that are Entities and Businesses exempted from the Personal Data Protection Act B.E. 2562 (2019):

(1) Government agencies

(2) Foreign government agencies and international organizations

(3) Foundations, associations, religious organizations and non-profit organizations

(4) Agricultural business

(5) Industrial business

(6) Commercial business

(7) Medical and public health affairs

(8) Energy, steam, water and waste disposal business including related business

(9) Construction business

(10) Repair and maintenance business

(11) Transportation, delivery and storage of goods business

(12) Tourism business

(13) Communications, telecommunications, computers and digital business

(14) Finance, banking and insurance business

(15) Real estate business

(16) Professional practices

(17) Administration and support services

(18) Science and technology affairs, academic work, social work and arts

(19) Educational affairs

(20) Entertainment and recreation activities

(21) Security business

(22) Household affairs and community enterprises which are unable to be clearly classified

In case there is a problem with an entity or business specified in this list, the Personal Data Protection Committee shall be entitled to make a decision on this.

 

Disclaimer:

This document is of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Blumenthal Richter & Sumet Ltd. for any losses or damages incurred by any person doing anything as a result of this document.

For more information, please contact Andreas C. Richter, Senior Partner at Blumenthal Richter & Sumet, at [email protected] or Anuwat Ngamprasertkul, Partner and Head of Litigation and Dispute Resolution, at [email protected].

Anuwat Ngamprasertkul, Partner and Head of Litigation and Dispute Resolution as well as Co-Head of Tech-Media-Telecoms (TMT) at Blumenthal Richter & Sumet, held a webinar on 24 April 2020 on the topic “Roadmap to Personal Data Protection Act (PDPA) Compliance”, where he discussed the current PDPA situation in Thailand and the consequences of a postponement, how the PDPA and the European Union’s General Data Protection Regulation (GDPR) affect your business, penalties for non-compliance, how to deal with the collection of new sensitive information during COVID-19 and more. Anuwat has more than 15 years’ experience working at a Big Four firm, where he was a director and had a significant role in advising on and implementing compliance with PDPA law in Thailand.

The full webinar is available here:

Introduction

What is the PDPA

Update on the current status of the PDPA in Thailand and consequences of a possible postponement

Data privacy and COVID-19

How do the PDPA and the EU’s GDPR affect your business?

Penalties for non-compliance and case studies

What you need and not need to do for compliance with the PDPA

How to implement a data privacy compliance policy that protects employees, suppliers and customers in a cross-border scenario

How to manage your rights and obligations under the PDPA

Roadmap to compliance with PDPA law for your business

Our work, your benefits

Q&A

The contents herein are for informational purposes only and should not be relied upon as legal advice. For more information, please contact Anuwat Ngamprasertkul, Partner and Head of Litigation and Dispute Resolution as well as Co-Head of Tech-Media-Telecoms (TMT), at [email protected].

Blumenthal Richter & Sumet (BRS) is hiring motivated attorneys in the firm’s Real Estate practice group. Interested candidates should please send their resume and references to [email protected].

We offer attractive remuneration and the opportunity to develop professionally in an established international legal practice. All applications will be treated as strictly confidential. Only shortlisted candidates will be notified.

BRS assists clients to make confident business decisions. We are commercial and responsive. Efficient and pragmatic. And in a fast-changing world, we create simplicity for clients in the face of increasing complexity for them to make the right decisions, achieve their strategic priorities and identify new opportunities. We take the time to understand each of our client’s unique needs, and provide a solutions-driven commercial view with real in-depth knowledge of clients’ sectors and markets.

For over 40 years, our licensed Thai, European and U.S. attorneys have worked at our clients’ side, understanding their business while serving as a trusted counterpart who knows the law. Assisting clients as a team, we collaborate with them to navigate not only the legal issues but the regulatory aspects impacting their business sectors.

The Asialaw Profiles 2022 rankings have been released, and Blumenthal Richter & Sumet (BRS) achieved rankings across several areas:

• Highly Recommended – Tax 
• Recommended – Corporate and M&A
• Recommended – Dispute Resolution
• Recommended – Real Estate
• Recommended – Technology and Telecommunications
• Other Notable – Construction

The rankings are based on extensive market consultation and draw on sources including questionnaires completed by law firms, practitioners and clients; phone interviews with partners and clients; and independent research. Only domestic and regional law firms are included in the rankings. If you would like to view the full rankings, please visit the Asialaw website.

BRS helps clients make confident business decisions. As one of the longest-established law firms in Thailand, we combine the experience, entrepreneurship and business acumen to understand our clients’ businesses and solve their increasingly complex challenges. As our clients are the cornerstone of our firm, we are constantly innovating and using leading-edge technologies to provide a range of benefits to our clients, from having an elevated client experience and improved efficiencies, to developing more pragmatic business approaches and identifying new opportunities.

Andreas Richter, who leads the Corporate and Commercial / M&A practice, has played a pivotal role in transforming BRS into one of the largest independent law firms in Thailand. Chambers commends Andreas for his expertise in M&A, joint ventures and market entry issues relating to Thailand and other countries in Southeast Asia. The Legal 500 has described Andreas as “an outstanding lawyer who attracts a significant number of German clients.” Andreas is a previous President and Vice-President of the German-Thai Chamber of Commerce, the former Chairman of the Joint Foreign Chambers of Commerce in Thailand Law Committee and for six years served as Vice-Chair for the Asia-Pacific region on the International Board of Directors of INTERLAW, one of the largest global associations of independent law firms.

Sumet Mingmongkolmitr is head of the firm’s Tax and Customs practice. His expertise covers local and international tax and customs law, planning and advising on tax efficient structures for various types of commercial transaction and resolving disputes with tax and customs authorities. Sumet has extensive knowledge of bilateral agreements entered into by the Thai government for the avoidance of double taxation, as well as the prevention of fiscal evasion with respect to taxes on income. He is widely revered for his comprehensive understanding of the application of the General Agreement on Tariffs & Trade (GATT). Sumet was recently shortlisted for the “Indirect Tax Practice Leader of the Year” award in the Asia Tax Awards 2020 by International Tax Review, which is published by Euromoney Plc, one of Europe’s largest publishers of legal and financial information with a significant presence in Asia. BRS’s Tax and Customs department received the “Thailand Tax Disputes Firm of the Year” nomination.

Robert Schuler heads the firm’s Real Estate and Construction practice and is a U.S.-licensed attorney who has been working in Southeast Asia for more than 20 years. He has extensive experience in advising a wide range of clients on transactions involving real estate assets of all types and classes. Robert regularly advises multinational corporations, institutional investors, private equity funds and entrepreneurs on hotel and resort development, F&B and lifestyle, residential development, industrial acquisitions, mixed-use property development, project restructuring as well as agricultural and recreational development. In the context of these transactions, Robert advises buyers, sellers, owners, operators, developers, equity investors and lenders. He possesses in-depth knowledge of the local and regional real estate markets, and assists clients with navigating the complexities and nuances of real estate transactions in Thailand and the region.

Anuwat Ngamprasertkul, a new partner in the firm and head of Litigation and Dispute Resolution, has over 16 years’ experience in legal and tax consulting at a Big Four audit firm, where he was a Director and led the firm’s litigation team. Working across the organization, Anuwat has in-depth experience in litigation and dispute resolution, tax, personal data protection compliance, contract drafting and negotiation, M&A, Public-Private Partnership projects, labour advisory and many other areas. As Head of Litigation and Dispute Resolution at Blumenthal Richter & Sumet, Anuwat brings years of experience leading teams and representing parties in court proceedings, including claims and defenses in civil, criminal, labor, white-collar crime, shareholder dispute, bankruptcy, taxation, consumer protection and international trade case matters, as well as arbitration. He also has in-depth experience in developing constructive strategies for crisis management and mitigation plans to minimize legal exposure with practicable solutions within a limited timeframe.

Ittinant Suwanjutha is a partner and co-head of the firm’s Tech-Media-Telecoms (TMT) practice with Anuwat. In TMT matters, Ittinant is currently focused on advising FinTech and digital companies on business structures, operations and licensing. He has taken on many complex and high-value mandates, and clients value his ability to understand their objectives and inspire confidence in making business decisions. Anuwat has had a significant role in advising on and implementing compliance with personal data protection law in Thailand for leading companies, universities and international schools in the automotive, banking, beverage, fashion, manufacturing, pharmaceuticals and professional services industries. Anuwat uses his in-depth experience in litigation to proactively analyze and mitigate exposure to non-compliance on personal data protection matters.

Many Thai children are struggling with online learning. You can help by donating your unused computer hardware to Project Infinite Opportunities who refurbishes second-hand computer hardware which they then give away to underprivileged students in Thailand to improve their online learning experience. Two students from the International School Bangkok are leading the project, accepting donations and working on cleaning and repairing donated computer hardware.

Please visit their YouTube channel: Project Infinite https://www.youtube.com/channel/UCG54Od8MFVrZrIlxZ-IVaUQ

Also, this is their Linktree: https://linktr.ee/Project_Infinite

Sumet Mingmongkolmitr

The Act Amending the Revenue Code (No. 53) (the “Amended Act”) will soon become effective on 1 September 2021 in order to create a fair business environment between domestic and foreign service providers who provide service to customers through electronic media or a digital platform.

Previously, foreign e-service providers or e-platform operators were not responsible for filing VAT returns and remitting VAT to the Revenue Department if the customer in Thailand is not a VAT registrant. However, under the Amended Act, foreign e-service providers providing services from abroad to non-VAT registered customers in Thailand shall be responsible for filing monthly VAT returns and remitting VAT to the Revenue Department under a pay-only basis without deducting input tax. In some cases, e-platform operators are required to file VAT returns, and pay VAT on behalf of foreign e-service providers if such e-service providers are providing services through a platform with continuous processes starting from offering the service, receiving payment of service and delivering service.

To facilitate taxpayers, the VAT processes such as registration, return filing and payment can be performed electronically through the Revenue Department’s Simplified VAT System for e-Service (SVE) online platform, which is currently under development. Also, foreign e-service providers and e-platform operators are not required to issue a tax invoice to non-VAT registered customers in Thailand or maintain an input tax report under the Revenue Code.

E-service businesses expected to be affected include: (i) online streaming platforms such as YouTube, Twitch, Netflix and Spotify; (ii) e-commerce businesses such as Amazon, Shopee and Lazada; (iii) gaming businesses such as STEAM; and (iv) advertising platforms such as Facebook Ads, Instagram Ads and Line Ads.

The key elements of the Amended Act are as follows.

Definitions of E-Service and E-Platform

The definition of “goods” is amended to exclude intangible property which is delivered through the internet or other electronic networks. There are also new provisions defining the terms “Electronic Service” and “Electronic Platform” as shown below.

Electronic Service refers to services and the intangible property being delivered through the internet or any other electronic network, the nature of which renders their service essentially automated and impossible to ensure in the absence of information technology. Examples of such e-service include online games, mobile applications and online advertising services.

Electronic Platform refers to a market, channel or other processes that many service providers use to provide their service to the service recipients. Such electronic platform can be in the form of websites, mobile applications or any other electronic marketplaces.

New Requirements under the Amended Act

Foreign e-service providers and e-platform operators (excluding those registered in Thailand) with income from providing e-service to non-VAT registered customers in Thailand of more than THB 1.8 million per annum are also required to register as a VAT registrant.

As part of the implementation of VAT on foreign e-services, the Revenue Department will be responsible for the issuance of supplementary regulations and guidelines. Such regulations and guidelines will be in accordance with the current law regarding electronic transactions.

Disclaimer:

This document is of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Blumenthal Richter & Sumet Ltd. for any losses or damages incurred by any person doing anything as a result of this document.

For more information, please contact Sumet Mingmongkolmitr, Senior Partner at Blumenthal Richter & Sumet, at [email protected].

Blumenthal Richter & Sumet is cooperating with a number of prominent organizations to co-sponsor the Thailand Arbitration Center (THAC) International ADR Webinar Series 2021 – Managing Disputes in an Uncertain World: Challenges and Opportunities on 29 July – 7 October 2021.

Alternative Dispute Resolution (ADR) has been significantly impacted by the Covid-19 pandemic. Proceedings have moved online and protocols for virtual hearings have been drafted and proposed. New virtual platforms have been launched and social events have been converted to webinars. This is the “New Normal” in the ADR field.

The THAC International ADR Webinar Series will aim to discuss these changes, new developments and future opportunities in ADR. In particular, among other topics the series will cover:

Changes and innovations in ADR proceedings demanded by the new global situation – their effectiveness, further implementation methods and challenges

Online hearings vs. in-person hearings – effectiveness and suitability of cross-examination by online hearing, cutting costs by online hearings, improving the online experience and virtual hearings after normal life returns

Amend existing rules or develop new platform – should existing rules be amended to include provisions on online proceedings, or should an entirely new platform be developed for online dispute resolution

Support staff and unsung roles – what are the requirements and standards support staff should meet to participate in arbitral proceedings

Confidentiality – the need to preserve data confidentiality, who takes charge of the platform used and what are the parties’ rights and who is liable in the case of data leakage

If you would like to find out more about this event, please download the THAC International ADR Webinar Series 2021 brochure.

The latest edition of the Art of Deal Making: Using External Expertise Effectively has been published, and Robert H. Schuler, Senior Partner at Blumenthal Richter & Sumet and head of the firm’s Real Estate practice, contributed the real estate chapter covering Thailand to the guide. In particular, the chapter covers:

• Importance of local market intelligence to effective cross-border real estate transactions in the current COVID-19 market
• Key elements involved in achieving an accurate valuation for a real estate portfolio prior to the deal making process
• Top tips to optimize a real estate portfolio

The Art of Deal Making: Using External Expertise Effectively is a collaboration between IR Global members and the Association of Corporate Counsel (ACC) which offers jurisdiction-specific advice on using external expertise effectively.

The Thailand chapter can be read below or downloaded here: Art of Deal Making: Using External Expertise Effectively.

Disclaimer:

This document is of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Blumenthal Richter & Sumet Ltd. for any losses or damages incurred by any person doing anything as a result of this document.

Thailand’s Personal Data Protection Act B.E. 2562 (2019) (“PDPA”) will be fully enforced on 1 June 2021, one year after it was partially postponed due to the Thai government’s recognition that implementing compliance with PDPA law is complex and therefore costly and requires advanced training at all levels.

As the PDPA will soon be enforced, businesses should demonstrate that they are fully compliant with the PDPA to gain the trust of their customers, suppliers, shareholders, stakeholders and the general public, and at the same time mitigate the risk of a data leakage which may cause negative reputational damage and open the door for damaged persons to take legal action against the business owner under general rules.

Blumenthal Richter & Sumet provides comprehensive PDPA services including GAP Analysis, key compliance documents and training which:

• Help management, the steering committee, working team and potential Data Protection Officer understand the fundamentals of PDPA compliance
• Identify PDPA exposure on your current business structure and recommend how to mitigate the risks
• Visualize your end-to-end flow of personal data collected inside your organization and that which flows out to others
• Provides key PDPA compliance document templates for implementation
• Build your staff awareness of PDPA compliance
• Mitigate non-compliance risk, penalties under the PDPA and your negative reputational risk
• Promote your transparency and government on data privacy

Disclaimer:

This document is of a general nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional advice. No responsibility can be accepted by Blumenthal Richter & Sumet Ltd. for any losses or damages incurred by any person doing anything as a result of this document.