THAILAND Law and Practice Contributed by: Nam-Ake Lekfuangfu, Theeranit Pongpanarat and Panitan Pruksakasemsuk, Baker McKenzie (Bangkok)
sation due to the breach and the causal link between such damages and the breach. Nonetheless, depending on the nature of the infor - mation and infringement by the employees involved, the employer may also rely on the protections and enforcements under the Trade Secrets Act B.E. 2545 (2002), the Computer Crime Act B.E. 2550 (2007) and the Copyright Act B.E. 2537 (1994), as well as criminal offences under the Penal Code (eg, offences relating to commerce and defamation). Similar to the confidentiality and non-disparagement requirements, restrictive covenants like non-compete clauses are generally valid and enforceable under Thai labour laws. The Thai labour court has the authority to review whether the restraints placed on employees are fair, including any restrictions that apply after employ - ment has ended. If the court finds these restraints to be unfair (such as if the geographical area covered is excessively broad or if the duration after employ - ment termination is too long), it can choose to modify them. The court may enforce these restraints only to the extent it considers fair and reasonable for the employees, such as by reducing the post-termination 2. Restrictive Covenants 2.1 Non-Competes As these restrictions set bounds on an employee’s rights and freedoms, the court is likely to interpret the scope of the application of these restrictions in a lim - ited manner. Therefore, it is crucial for the employer to carefully draft the relevant contractual provisions to ensure that the scope of their application will cover the protections intended by these clauses, while ensuring that the scopes and restrictions are not too overtly restrictive, unfair and burdensome to the employee. In practice, the enforcement of specific performance of the non-compete clause can be challenging, and the court rarely grants any enforcement on specific performance (eg, by ordering the employee to leave period to what it deems appropriate. Enforcement of Non-Compete Clauses
the competitor) or injunctive relief. However, the court is more likely to award damages due to the employee’s breach of these restrictive covenants if the employer can prove the existence of damages as well as the causal link between the breach and the damages it suffered. 2.2 Non-Solicits Non-solicitation clauses are treated similarly to non- compete clauses; see 2.1 Non-competes . The court is empowered to review whether these restraints are fair to employees. If the court thinks they are unfair to employees, it may exercise its discretion to render them enforceable to the extent it considers fair and reasonable to the employees. 3. Data Privacy 3.1 Data Privacy Law and Employment The purposes of the Personal Data Protection Act B.E. 2562 (2019) (PDPA) are to protect individuals’ personal data by imposing obligations on any data controller or processor collecting, disclosing, transferring and utilising personal data of a data owner. The key legal requirements under the PDPA in the employment context include the following. • Employers must limit the collection of personal data to lawful grounds and with the employee’s prior consent, unless it falls under prescribed exceptions. • A request for consent shall be explicitly made in a written statement or via electronic means, which must be separated from other content and must be easy to understand. • There are exceptions where consent from employ - ees is not required for the processing of their data (collecting, disclosing and utilising personal data), such as when the employer may rely on its neces - sity due to its legitimate interest or contractual obligations to process such personal data in com - pliance with the PDPA, among others. • An employer shall collect, utilise or disclose personal data only for the purpose notified to the employee prior to or at the time of such collection, unless the employer has informed the employee of
674 CHAMBERS.COM
Powered by FlippingBook