On 5 October 2021, the Cabinet approved 9 new principles in an amendment to the Electronic Transactions Act B.E. 2544 (2001) ("ETA"), which were presented to the Cabinet by the Electronic Transactions Development Agency ("ETDA"). The ETDA plans to revoke the ETA currently in effect and replace it with this new version.
Our summary comparison between the existing principles under the ETA and the 9 new principles to be introduced under the new ETA can be found in the table below.
No. Principles ETA in effect New ETA
1 Objectives and scope of the law The ETA is currently applicable to civil transactions but does not include transactions with government agencies (administrative transactions) The New ETA will be applicable to all transactions (civil and administrative transactions).
2 Digital identification and authentication There are guidelines on electronic identification and authentication. A reliable digital identification and authentication system shall at least meet the prescribed minimum standards. However, the ETA does not prescribe nor recognize any identification and authentication system verified by a third party. A new principle will be introduced regarding authentication via a system verified by a responsible entity or a regulator. Such system will be presumed reliable (no burden of proof for the user).
3 Electronic declaration of intention Declaration of intention can be done electronically. The ETA does not prescribe nor recognize any system verified by a third party. A new principle will be introduced regarding a declaration of intention or notice via a system verified by a responsible entity or a regulator. Such declaration of intention shall be considered reliable (no burden of proof for the user).
4 Contract Contracts executed electronically are recognized by the ETA. The ETA does not prescribe nor recognize any system verified by a third party. A new principle will be introduced regarding a contract done via a system verified by a responsible entity or a regulator. Such contract shall be considered reliable (no burden of proof for the user). - The new ETA will clearly specify that all principles related to rights, obligations, and liabilities of the contracting parties under the Civil
and Commercial Code shall be applicable to electronic contracts, whether in the form of transactions between persons or smart contracts, except those specified in the new ETA. However, no further details on such exemptions are provided at this stage. - The new ETA will specifically prescribe the rules on legal authorization (e.g. power of attorney) done electronically. The ETA accepts electronic payments instead of stamp duty, without an exemption for any certain transactions. The new ETA will provide an exemption for stamp duty for certain transactions e.g. legal authorization or issuance of shares done electronically.
5 Electronic signature Electronic signatures are acceptable, if such electronic signatures are considered reliable as prescribed under the ETA. Under the new ETA, the electronic signature must comprise of (1) authentication and (2) the declaration of an intention to sign. The ETA does not prescribe nor recognize electronic signatures via a system verified by a third party. A new principle will be introduced regarding technology used to sign an electronic signature that has been verified by a responsible entity or a regulator. Such electronic signature shall be considered reliable (no burden of proof for the user).
6 Electronic Transferable Record The ETA does not prescribe any specific provisions on electronic transferable records. The new ETA will provide the rules on electronic transferable records to be in accordance with the UNCITRAL Model Law on Electronic Transferable Records issued on 13 July 2017.
7 Electronic evidence No data retention obligations under the current ETA Technology service providers shall retain authentication information or electronic evidence for 10 years from the transaction date. The ETA allows electronic information to be accepted as evidence in Court, without specifying whether the electronic Electronic information is now considered primary evidence under the Civil Procedure Code.
information would be considered primary evidence or not.
8 Approval of trustworthy technology The ETA does not prescribe nor recognize technology verified by a third party. Any government agencies responsible under other specific regulations and regulators may issue acceptable IT standards of reliable technology and systems. They are also authorized to approve the reliable technology and systems. The users of such approved technology and systems shall be considered reliable (no burden of proof for the user). The acceptable IT standards can be adopted from international standards that are widely used or accepted.
9 Responsibilities and obligations of the government agencies - The new ETA will prescribe responsibilities and obligations of the government agencies recently established to prevent redundancy and overlaps.
The ETDA is currently holding a public hearing on the above 9 principles which will end on 19 November 2021. The new draft ETA has not yet been issued.
Once the public hearing concludes, the ETDA will prepare a new draft ETA, based on the above principles, for another public hearing. We will keep you updated on any developments on this should they occur.