Transfer of personal data in Thailand
The Data Controller may not use or disclose Personal Data without consent unless it has been exempted from the consent requirement (i.e. on the grounds of other legal bases of processing). The recipient of the Personal Data must not disclose the Personal Data for any other purposes other than as previously notified to the Data Controller when requesting for the Personal Data.
In the event that the Data Controller uses or discloses Personal Data which is exempt from the consent requirement (i.e. other legal basis of processing), the Data Controller must maintain a record of such use or disclosure in the manner prescribed under the PDPA, for example the record must be kept in a written or electronic format.
Processing between Data Controllers and Data Processors
As the Data Processor will be carrying out activities only pursuant to the instructions given by the Data Controller, the PDPA imposes an obligation on the Data Controller to ensure that there is a data processing agreement in place between the Data Controller and Data Processor governing the activities of the Data Processor.
Cross-border transfer
Personal Data may not be transferred outside of Thailand, unless the recipient country or international organisation has adequate personal data protection standards in the Regulator’s view and the transfer is in accordance with the rules prescribed by the Regulator. Exemptions may apply such as in the following cases:
- the data subject has given consent and proper notification has been given by the Data Controller;
- the transfer is necessary for the performance of a contract between the Data Controller and data subject; or
- the transfer is necessary in order to protect the vital interests of the data subject.
According to the subordinate regulation regarding the criteria for protecting Personal Data sent or transferred abroad issued on 25 December 2023, the cross-border transfer rules do not apply to the sending and receiving of Personal Data as an intermediary for data transit or data storage that has technical measures to protect unauthorized access from third parties, such as cloud computing services.
As the relevant subordinate regulations have already been issued, the Regulator may soon issue the list of destination or data receiving countries which are considered to have adequate personal data protection standards pursuant to the PDPA.
Transfer between group companies may be exempt from the above requirement if the international transfer is to an organisation within the same group / affiliated business and such transfer is for joint business operations. Nevertheless, the personal data protection policy of such group companies or so called the binding corporate rules (BCR) must be approved by the Regulator. The relevant Data Controller or Data Processor may submit the BCR to the Regulator for approval via post or electronic channel as prescribed by the Regulator.
However, in the absence of a BCR or a decision on the adequate personal data protection standards of the destination country, the Data Controller or Data Processor may transfer Personal Data to another country if it provides appropriate measures as prescribed by the subordinate regulation. Such measures must, for instance, be legally enforceable and binding on all relevant parties, uphold the data subject rights and complaint, and implement the security measures as prescribed by the PDPA.
The subordinate regulation further prescribes that the appropriate measures may be in the form of contract, certification, or provisions in the bill, or binding agreement between Thai and international governmental bodies.
In addition, the subordinate regulation stipulates that the appropriate measure in a form of contract must have either of the following characters:
- the contract must rely on the international form of contract i.e. ASEAN Model Contractual Clauses for Cross Border Data Flow, Standard Contractual Clauses for the Transfer of Personal Data to Third Countries pursuant to the European Union regulation or GDPR, or the standard contractual clauses for sending or transferring of Personal Data of other international organisation as prescribed by the Regulator; or
- the contract must contain some provisions as prescribed by the Regulator. For example, in case of contract between the Data Controller and Data Controller, the receiving party must inform the transferring party of data breach incident within 72 hours upon becoming aware; or in case of contract between the Data Controller and Data Processor, the receiving party must contact the transferring party if there is any data subject’s right request, and it must delete the Personal Data obtained as requested by the transferring party.
The transfer requirements may have an impact on multinational organisations that routinely transfer data cross border. However, given that many organisations in Europe will already comply with similar (and likely more stringent) data protection laws, the impact of the PDPA may be limited regarding cross–border transfer of data.
