Thailand’s Privacy Law Passed

On the last day of February 2019, Thailand’s National Legislative Assembly finally approved its long-pending draft Personal Data Protection Act (the “TH PDPA”). After the royal endorsement (which is usually a formal procedure), the law is expected to be published within a couple of weeks.

Heavily affected by the EU General Data Protection Regulation (“GDPR”), the TH PDPA entitles data subjects the right to delete, in addition to other rights that are usually provided in other jurisdictions. Also, the TH PDPA will apply not only to companies located in Thailand, but also overseas companies which collect, use, or disclose personal data of subjects in Thailand, specifically for advertisements and “behavior monitoring.” This extraterritorial effect would no doubt increase the burden of compliance for a multinational company, provided that it targets the Thai data subjects.  This is also quite similar to the GDPR.

A Personal Data Protection Committee will be established to enforce compliance with the TH PDPA.  That said, the law provides a one-year grace time for enterprises to prepare the compliance of it.


理解GDPR的跨境效力其实很简单 – It’s simple to understand the extra-territorial effect of GDPR

calm to GDPR《欧盟数据保护条例》(GDPR)已于2018年5月25日生效。在此之前(乃至直至现在),隐私律师为此已经忙碌了很久。由于GDPR具有某种“域外效力”,位于欧盟之外的企业也总会担心,希望了解自己在欧洲之外的生意是否收到影响。
The EU General Data Protection Regulation (GDPR) has come into force on 25 May 2018.   Before the day (and maybe until today), privacy lawyers have been busying in advising their clients on how to comply with the new law .  In particular, since GDPR implies certain “extra-territorial effect”, enterprises located outside of EU are also seeking advice from their counsels on whether the the new regulation would impact their business outside of Europe.

香港電腦保安事故協調中心 (HKCERT) 在一篇帖子里列出了GDPR适用于非欧洲企业的一些例子:
In their post, HKCERT has listed a few examples where a non-EU company’s service would be considered under GDPR’s umbrella.

  1. 未在欧洲设立任何分支机构的一间公司,通过建立于美国服务器的网站向在欧洲内的个人提供免费的社交服务——GDPR适用
    A Company without any EU subsidiaries offering free social media services via a website hosted in US to individuals in the EU – GDPR applies
  2. 酒店预订服务,使用cookies追踪过往顾客(包括身在欧盟的顾客)的浏览历史,以便定向投放广告——GDPR适用
    Hotel book business using cookies to track past customers’ (including EU-based customers) browsing in order to target specific hotel adverts to them – GDPR applies
  3. 一家香港的鲜花速递公司允许身处于欧洲的个人通过该公司的网站在香港订购鲜花并送达香港本地的收件人。而送花的费用是以欧元计价——GDPR适用
    HK flower delivery company allowing individuals in the EU to make orders for fulfilment only in HK. The price for the flower delivery services is denominated in an EU currency – GDPR applies

  4. 香港的零售公司使用网站接收预订并送货。身处欧洲的个人可以访问网站,但网站是英文的。订单是以港币计价,送货范围仅限香港地址—— GDPR不适用
    HK retailer with a website for orders/deliveries. The website is accessible to individuals in the EU in English. The currency is the HK dollar and the address fields only allow HK addresses – GDPR doesn’t apply

Put it in simple, the extra-territorial effect of GDPR is limited. If your company is not targeting individuals who are physically staying in the territory of Europe, GDPR won’t apply to your business.

需要澄清的是:GDPR并不管EU国家公民在EU范围外接受服务时,提供自己的个人信息的情况——只要这些信息的采集和处理过程均是在 EU境外完成。例如,下面这些例子中,服务提供者并不需要将 GDPR作为其处理EU护照持有者的个人信息时的准则,而只需要遵守服务提供当地的法律:
It is important to clarify that GDPR does not apply to the collection and process of a EU passport holder’s personal data when the personal data is collected and processed outside of EU.  For examples, in the following cases, service providers don’t need to take GDPR as the standard for the processing of personal data collected from a EU passport holder, but just need to consider the local laws where the service is provided:

  • 一家日本旅行社为一名通常居住于以色列的法国人提供旅行服务;
    a Japanese company offering tourism services to French expats living permanently in Israel;
  • a mobile APP recommending restaurants in Hong Kong, which enables a UK passport holder to book table and receive discounts.

In fact GDPR never considers citizenship (according to its Article 2).  It simply protects the rights of data subjects for anyone living in the territory of EU. Therefore, a refugee living in Germany will enjoy the same right to the EU passport holders. If your company targets Chinese students studying in Europe, then you should take GDPR as the standard of your privacy policy.

The extra-territorial effect of GDPR is mainly reflected in its effects to the companies who are operating in the territory of EU.  Namely, if a data collector/controller is located in EU, then it shall comply with GDPR, without considering whose data will be collected and where the data will be originated.  See more examples here.

The process of compliance is not easy, but its concepts should be kept simple.

Data Privacy under the PRC Network Security Law and the Draft PRC E-Commerce Law

First, here are some slides for quick reference if you are lazy and don’t want to read.



The PRC Network Security Law (“NS Law”) has come into force on June 1, 2017. This law provides certain provisions in relation to the data privacy. Some of them appear to be beneficial to the individual data owners, whilst some others may be counter-productive to the protection of data privacy.

In parallel, the legislative branch of the Chinese government has published a draft PRC E-Commerce Law (“Draft EC Law”) for public consultation in December 2016.  This draft law has not yet to be passed by the PRC National People’s Congress (NPC) to become effective. However, its provisions have reflected some basic attitudes of the Chinese authority towards the protection of data privacy.

This essay sets out and provides my comments on the key provisions with respect the data privacy under the NS Law and the Draft EC Law.  In order to make readers digesting these laws easily, I will apply Daniel J. Solove’s theory of categorization of the data privacy issues.

1. Data Collection and Aggregation

“Aggregation” means the gathering of a person’s data from different sources and then combining them to form a clearer image of the person.

  • Art. 22.3 of the NS Law: ISP cannot collect its users’ personal information without the expressive consent. Art. 41 of the NS Law: ISP shall publish the rules, purpose, method, and scope of collection of personal information. No collection without users’ consent.[Comments: (i) These provisions do not distinguish “collection” and “aggregation”.  (ii) As a result, although these provisions have clearly required an operator to obtain consent before collecting its users’ information, they did not address the issue whether a third party can search and aggregate personal information (either from the public domain or from the first-hand data collectors.)]

2. Surveillance

Surveillance means the act or system enabling the government or a company to monitor user’s activities (“Big brother is watching you”).

  • Art. 51 of the Draft EC Law obliges E-commerce business operators to provide data to government authority (although it also said that the government authority should adopt “necessary measures” to protect data security).
    [Comments: (i) This provision legitimized (rather than prohibited) the surveillance practice.]
  • Art. 21.3 of the NS Law: ISPs are obliged to monitor and record user’s activities and should keep records for no less than 6 months.
    [Comments: (i) this could be counter-productive to protecting privacy from the individual data owner’s perspective; (ii) the 6 months storage obligation is not new in China, but the NS Law makes the compliance to be a necessity (at least on paper). ]

3. Identification

Identification means to identify a particular person or a particular group of persons by data analysis.

  • Art. 42.1 of the NS Law: No sharing of identifiable personal data without consent. Art. 50 of the Draft EC Law: an E-commerce business entity is obliged to take protection measures to ensure anonymity before it shares the e-commerce data with another E-commerce business entity.[Comments: Article 42 of the NS Law first prohibits business operators from divulging personal information to a third party. Then it says that if the data cannot identify a particular person, then it is fine to transfer without the data owner’s consent. Article 50 of the Draft EC Law has generally kept consistency with the NS Law on this regard. ]
  • Art. 45 of the Draft EC Law confirms that the buyers have autonomy over their personal data; it also defines the personal data with a detailed list, such as name, ID certificates number, address, contact details, information of geographical location, bank card info, transaction records, payment records and records of accepting logistic services.[Comments: The Draft EC Law did not distinguish the “private personal data” and the “business personal data”.  In some countries, use and aggregation of the business contacts (e.g. office telephone numbers, office email address and other info shown on a business card) may enjoy certain exemptions.]
  • Art. 46 of the Draft EC Law first provides that collection of personal data requires user consent; then it prohibits the denial of service due to the user’s refusal of providing personal data.

4. Disclosure and Insecurity

Disclosure means the data holder’s own act of disclosing the private facts. Insecurity means the situation that the data is attacked and stolen.

  • Art. 21. 2 and 21.4 of the NS Law request ISP to take technical measures to protect its system from attack; ISP also needs to classify, backup and encrypt data.
  • Art. 22.1 and 22.2 of the NS Law request ISP to take remedial actions when its system is in risk; provide security maintenance during the term of service. These provisions also generally requested the producer of network security products or services to report the authority about the data breach.
  • Art. 27 of the NS Law generally prohibits hacking acts. It also prohibits the assistance of hacking practice, such as tech support, advertising, and settlement of payment.
    [Comments: The provision did not clarify if the “assistance” means knowingly assistance. It also did not clarify if “constructive knowledge” also applies to this provision.]
  • Art. 42.2 of the NS Law requests ISP to take technical measures to protect data from disclosure, damages or loss. It also mentioned that the data holder shall report the data breach to the relevant authority.
  • Art. 49 of the Draft EC Law provides that e-commerce business entities must establish rules and technologies to prevent disclosure of data. It also provides if there is a data breach, the e-commerce business entity is obliged to (i) take remedial measures, (ii) notify the users and (iii) report to government authorities.

5. Exclusion 

Exclusion means the act/rule disabling/excluding a user from maintenance and deletion of his personal data from the system. The reason for deletion can be either those data are objectively outdated or the data owner simply changed its mind of disclosing the data.

  • Art. 43 of the NS Law: User has right to request deletion if the service provider’s collection or use of personal information in breach of the law/agreement; or there are mistakes in the personal information.[Comments: According to this provision, if there is no mistake in the personal information and the service provider does not breach the contract, then the data owner will not have right to remove the data he/she has provided to the service provider. It is not clear whether “mistake” herein includes “outdated”.  However, it seems clear that data owner would have lost an absolute right of deletion.]
  • Art. 47 of the Draft EC Law: provides that when a user requests correction or supplement of his/her personal information, the E-commerce business entity should correct or supplement the information accordingly.
  • Art. 48(3) of the Draft EC Law: provides that a user has right to delete its personal information. However, such right of deletion only arises (and is only mentioned) upon lapse of agreed / statutory term of preservation of personal data.

6. Increased Accessibility

Increased accessibility means, without the consent of the personal data owner, making the information that is already available to the public EASIER for a wider scope of the audience to access.

E.g., a buyer’s review of a particular product is usually made available to the public.  However, the buyer might not want his friends or colleagues to know that he purchased such product.

Neither the Draft EC Law nor the NS Law has provision preventing increased accessibility of data.

7. Blackmail, which means using a person’s personal data to blackmail him/her.

In e-commerce scenarios, it is possible that an e-commerce vendor may blackmail a buyer with the buyer’s personal records when the vendor gives a negative review of the vendor’s product. The Draft EC Law has no provision preventing such blackmails.

8. Distortion

Distortion: means disseminating false and misleading information to manipulate the way a person is perceived and judged by others.

  • Art. 42.1 of the NS Law provides that service providers cannot distort personal information. But this appears to be too general.
  • Art. 52 of the Draft EC Law stipulates that the state should promote all e-commerce business entities to ensure that information is accurate and reliable etc.

9. Second Use

Second use means the use of data for purposes unrelated to the purposes for which the data was initially collected without the data subject’s consent.

  • Art. 52 of the Draft EC Law provides that the State shall establish public data sharing mechanism. Such mechanism necessarily involves the second use of data. However, no guidance or rules are provided in relation to second use except to the extent that the State should ensure e-commerce business entities shall protect the liability, security, and authenticity of aggregated data.