The government of Thailand has passed its first-ever data protection law, the Personal Data Protection Act (PDPA) that came into effect in May 2020. Like the European Union’s General Data Protection Regulation (GDPR), the PDPA ensures an appropriate level of security of personal information of users and grants them several protections and rights.
The PDPA protects the collection, use or disclosure of the personal information by data controllers or data processors that are in Thailand regardless of whether such collection, use or disclosure takes place in Thailand or not. It also applies to the collection, use or disclosure of the personal data by data controllers or data processors that are outside Thailand, where such collection, use or disclosure relates to the offering of goods or services to data subjects in Thailand, whether or not the payment is made by the data subject or where the data subject’s behaviour is being monitored in Thailand. The law, however, does not apply to foreign public authorities, international organizations and public entities including those that are engaged in duties with respect to the prevention and suppression of money laundering, forensic sciences, or cybersecurity.
Consent for data processing:
The PDPA requires data controllers and processors to obtain the free consent of users by way of an explicit written request before processing their information. Any such request must be in clear and plain language informing users of the purposes of the processing of their information. Data subjects have the right to withdraw their consent at any time and the option of withdrawal of consent should be made as easy as giving consent. A data subject’s consent is not needed where data is being processed for any public interest purpose, to suppress a danger to a person’s life, body and health, for the performance of a contract to which a data subject is a party to or for the purpose of compliance with any law.
Data Subjects’ Rights:
Under the PDPA, data subjects have the following rights:
- Right to access: Data subjects have a right to access and obtain a copy of their personal data from controllers and processors. This right must be acted upon without delay and shall not exceed one month from the date of the receipt of the data subject’s request.
- Right to information: Data subjects have a right to receive their personal data from controllers and processors in a readable format. This right must be acted upon within a reasonable time and shall not exceed one month from the date of the collection of the data, or at the time of the first communication with the data subject, or when personal data is first disclosed to the recipient.
- Right to object: Data subjects will have a right to object when their data is collected without fulfilling the consent requirements, or is being processed for direct marketing purposes, or is being processed for scientific, historical or statistical research purposes. There are exceptions that controllers and processors can rely on, such as the objection of the data subject can be overruled where the processing is necessary for public interest reasons.
- Right to erasure: Data subjects have a right to erasure available where the data of the data subjects must be deleted by the controller or processor if the data subjects withdraw their consent, or where data is no longer necessary for the purpose it was collected or processed for, or where data was collected unlawfully.
- Right to restriction of processing: Data subjects also have a right to request the restriction of the use of personal data. This right applies where the data subject opposes erasure or destruction of the personal data but still objects to further processing and thus requests the restriction of the processing of personal information in certain situations, such as, when data is no longer needed for the purpose it was acquired.
- Right to rectification: Data subjects have a right to request the rectification of their inaccurate data and have incomplete data stored about themselves completed.
- Right to data portability: Data subjects also have a right to request that data transmitted from one controller to another is in a readable format and can be used or disclosed by automatic means. This right may not be exercised due to technical reasons.
PDPA and GDPR:
While most of the provisions of the PDPA in relation to data subjects’ rights are based on the content of the GDPR, certain changes can be observed. Some of the notable differences concerning data subjects’ rights between the two regulations are as follows:
- Where the GDPR provides a list of information to be included while responding to an access request, the PDPA does not prescribe any such list or what needs to be included.
- The PDPA does not prescribe any specific timeline within which the data controller needs to respond to an erasure request. The GDPR, on the other hand, requires controllers to facilitate the exercise of a data subject’s right to erasure without undue delay and in any event within one month of the receipt of the data subject’s request.
- Where the GDPR provides an explicit right of the data subject to not be subject to a decision based solely on automated processing including profiling, the PDPA does not provide so.
Breach Response Framework:
Under the PDPA, data controllers and processors are required to adopt appropriate security measures to prevent any data loss or security incident. However, in case of any personal data breach that is likely to result in a risk to the rights and freedoms of persons, the data controller must notify the Office of the Personal Data Protection Committee without delay and where feasible, but within 72 hours, after having become aware of the breach. Where a personal data breach is likely to result in a high risk to the rights and freedoms of data subjects, the controller must inform the affected individual without any delay of the personal data breach along with the remedial measures that can be taken.
Cross-border data transfer:
The law requires that the destination country or international organization that receives personal data from controllers and processors in Thailand have an adequate data protection standard. This requirement may be exempted where any cross-border transfer complies with any law, or the transfer is necessary for the performance of a contract to which the data subject is a party to, or where the consent of data subject has been obtained provided that he or she has been informed of the inadequate protection standards of the destination country.
Penalties:
A violation of the PDPA may result in civil liability, criminal liability and administrative fines. For example, a data controller may be liable to pay compensation to the data subject for the damage suffered by the data subject. The amount of such compensation shall include all necessary expenses incurred by the data subject for the prevention or suppression of damages. Under the PDPA, the maximum penalty that can be awarded is a fine of Baht five million and imprisonment for a term not exceeding one year depending on the type of the violation.
Concluding thoughts:
In light of the recent technological changes and challenges arising out of COVID-19, Thailand’s Personal Data Protection Act is a welcome initiative in the privacy legal landscape. It indicates that governments have started recognizing data privacy as an individual’s basic human right. In today’s era of the digital economy, it is high times that transnational and multinational companies accept data privacy as an individual’s human right and not just as a consumer right and ensure that their privacy policies are fully compliant with applicable laws.
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