Draft Regulation on Cross-Border Transfer of Personal Data Outside of Thailand

January 13, 2023
The Office of the Personal Data Protection Committee (the “PDPA Committee”) published a draft regulation issued under the Personal Data Protection Act (2019) (the “PDPA”) relating to the cross-border transfer of personal data outside of Thailand (the “Draft Regulation”) on its website in September 2022.  Cross-Border Transfer of Personal Data under the Current Provisions of the PDPA According to Section 28 of the PDPA, a data controller can transfer personal data to a foreign country if the receiving country has in place adequate personal data protection measures that are in line with the adequacy criteria issued by the PDPA Committee. The PDPA Committee will announce a list of countries that have in place such personal data protection measures (the “Whitelist Countries”) later on. However, if the personal data is not transferred to any Whitelist Countries, the cross-border transfer can still be conducted if the exemptions under Section 28 apply.   Moreover, Section 29 (Paragraphs 1 and 2) of the PDPA provides an alternative method to transfer personal data to a foreign country. It states that the transfer of personal data is permitted within the same group of companies that have established binding corporate rules (the “BCR”) relating to data protection, which must be reviewed and certified by the PDPA Committee pursuant to the regulations issued by the PDPA Committee. If the company has certified BCR, Section 28 no longer applies to the transfer of such personal data.  Under Section 29 (Paragraph 3) of the PDPA, the cross-border transfer of personal data may be carried out in the absence of any Whitelist Countries or certified BCR if the transferor provides appropriate...

Employees’ Organizations at the Enterprise-level & Grassroots Trade Unions

December 28, 2022
In Vietnam, the ‘Trade union’ was the only organization dedicated to protecting employees’ legitimate rights and interests from the implementation of the first Labor Code in 1994 until the Labor Code of 2012 was enacted. Under the 2012 Labor Code, the term referring to trade unions was changed to “Representative organization of a grassroots-level employees’ collective”.  However, the essence of this organization remained and was defined as “the Executive committee of a grassroots trade union or the Executive committee of the immediate upper-level trade union in a non-unionized enterprise”.  As such, it could be said that it was old wine in a new bottle. The 2019 Labor Code revised the term to “Employees’ representative organizations at the grassroots level”, comprising grassroots trade unions and employees’ organizations at all enterprises.  Specifically, Article 3.3 of the 2019 Labor Code stipulates: “The employees’ representative organizations at the grassroots level means an internal organization voluntarily established by employees of an employer which protects the employees’ legitimate rights and interests in labor relations through collective bargaining or other methods prescribed by labor laws.  The employees’ representative organizations at the grassroots level comprise the grassroots trade union and the employees’ organization at enterprise-level.” Why was there a change to “the Employees’ Organization at Enterprise-level” from the previous Trade Union definition? In practice it was proven that the Trade Union had not been influential and could not competently perform its function as an independent representative organization for the rights and interests of employees because the Trade Union’s organizational structure and operational mechanism were still dependent on the enterprise. The leaders of the Grassroots Trade Unions remained employees of the enterprise and received wages and benefits from the...

Legitimising Electronic Signatures

December 28, 2022
As cross-border transactions are becoming increasingly common, businesses and individuals are turning to electronic means to save time and costs. Instead of waiting for documents to be transported by courier around the globe, the relevant parties can finalize and execute their contract in a matter of seconds, in the comfort of their own base. The steady rise of globalization, coupled with the social distancing protocol of COVID-19, is further accelerating the popularity of electronic signatures in 2020. Their growing prevalence brings forth questions about their legitimacy, effectiveness, and security. Fortunately, the technological advancement behind their conception and the maturing legal infrastructure built around electronic sign-offs are attesting to their positive values: electronic execution of contracts is a sufficient alternative to, if not a replacement of, in-person procedures. Legal Infrastructure In order for electronic signatures to be widely used, they have to be deemed legally valid under the relevant jurisdiction. As early as the late 1990s, legislative bodies around the world have come to grant electronic signatures the same legal status as handwritten signatures, encouraging businesses to adopt the paperless practice. In 2020, electronic signatures are legally recognized in over 60 countries. In Vietnam, electronic signatures have been given legal effect and enforceability since 2005. According to Article 21.1, Law on E-transactions 2005, “an [electronic] signature is established in the form of words, letters, numbers, symbols, sound, or other forms by electronic means, logically attached with or associated with a data message, which has an ability to certify the person who signs the data message and to certify the approval of such person to the content of the signed data...

The Greater China IP Updates – December 2022

December 28, 2022
Taiwan’s Judicial Yuan Announces Draft Amendment to the IP Case Adjudication Act Here are the highlights of what is likely to be the biggest overhaul of the IP Case Adjudication Act since it was implemented in 2008: The administrative remedy system for patent and trademark cases will change from the current administrative litigation system to the adversary system.  If a party files an appeal with the court against a Decision rendered by the IP Office, the case will be tried in accordance with the civil procedure, and the defendant, depending on the nature of the case, may not be the IP Office, but instead may be the opposing party such as an invalidation petitioner, or the applicant of a cancellation action. Civil disputes relating to patents, software copyrights, and trade secrets will be mandatorily represented by lawyers.  Unless the value of the plaintiff’s claim is low, that rule will be valid for other civil cases too. In principle, the court should discuss with the involved parties via their lawyers regarding the planning of a trial unless the case does not require legal representation.  In patent litigation cases, the judge shall, in a timely and appropriate manner, disclose his or her interpretation of any disputed terms recited in the claims, ex-officio or upon the request of a party. Currently, reports drafted by court experts formally known as Technical Examination Officers (TEOs) are not disclosed to any parties.  The Amendment now makes it clear that when a judge deems it necessary, he or she may disclose all or part of the content of the Reports drafted by TEOs and the parties...

You Have the Right to a Fair Trial

December 26, 2022
You have the right to a fair trial…that is if you are ever to be accused of crime. In fact your right to a fair trial is an internationally recognised human right which rarely makes for viral content (alongside other sexier declarations of human rights), but is nonetheless equally important. Ultimately, many people who are accused of crimes will be found innocent. The goal then is to have enough safeguards in place so that when all is said and done, those found to be innocent will also be found intact with (hopefully) little losses and enough pathways to return to their regular lives. Every person is presumed innocent unless and until proven guilty This is a fundamental principle behind the right to a fair trial. It is the responsibility of the state to prove that someone is guilty, not for the suspected person to prove their innocence. Being convicted of a crime has serious, sometimes devastating, consequences. Therefore, States must prove guilt to a high standard. If there is ‘reasonable doubt’, an accused person must be given the benefit of the doubt and cleared because the state’s ‘burden of proof’ has not been met. In practice there are many ways that this right is undermined. Accused people are often treated as criminals before they have had their day in court. We see this when : • Law enforcement parade arrested people through. public places so they can be photographed by the media – also known as perp walks. • Law enforcement requires accused persons to wear measures of restraint that make them appear dangerous. Coercion is wrong on so...

Can WhatsApp Messages Be Used as Evidence

December 26, 2022
With so much of our lives online, what do we do when things go awry? Do our verbal agreements over messaging platforms like whatsapp count? Generally speaking, electronic evidence is less conclusive than traditional evidence (mainly paper documents). It is more difficult to prove the integrity of electronic evidence and more challenging to document enough evidence electronically to tell the full story. Electronic devices are fast replacing ‘paper documents’ in commercial transactions all over the world (including Vietnam) Emails, video calls and messaging apps are increasingly being utilized by enterprises for information exchange, contract execution and implementation. What are some clear advantages of electronic transactions? Efficient Convenient Cost-effective What are the hidden risks?  Generally, electronic evidence is less conclusive compared to traditional evidence. When things go awry, the identities of the sender and recipient, the time of sending, the receipt of goods or documents, and the authority to sign become sources of endless contention. How electronic evidence fair against transition evidence Electronic evidence Traditional evidence Can be structurally distorted when stored in computer or transmission lines. Difficult to be structurally changed. Can be modified without any trace. Changes are easier to detect. Hard to identify as it is stored digitally and encrypted. Easy to identify by viewing. Simple to duplicate Hard to duplicate. Quality of evidence depends on the quality of the technology Quality of evidence depends on its physical condition. These “hidden risks” may prove to be extremely costly to the business. Tips to manage risks in a modern world During the execution, performance and termination of a commercial contract, use electronic mails as the primary form of...