THAILAND Trends and Developments Contributed by: Pisut Rakwong, Yaowalak Suleesathira and Supachoke Pongdasakorngamjai, Pisut & Partners
enacted in the ETA, establishing a precedent where courts have accepted electronic com- munications as written evidence. When there is reasonable doubt as to the reliabil- ity of electronic data or a printout of electronic data, the following factors will be considered: (i) the nature or methods used to create, retain or communicate the electronic data; (ii) the pres- ervation of the data’s completeness, accuracy and unaltered state, except for any changes due to technology commonly occurring in commu- nication, storage or display, which do not affect the accuracy of the information; (iii) the nature or methods used to verify and authenticate the identity of individuals related to the electronic data; and (iv) all relevant circumstances pertain- ing to the reliability of the electronic data. In resolving the dispute over what constitutes a reliable method, the court will inquire into all relevant facts to reach a judgment. Such facts may include methods, standards or technolo- gies widely accepted by the public as reliable. Other relevant factors include the publication of industry standards, international standards or guidelines by reputable sources. While the ETA has been in place, it has still creat- ed certain legal gaps. A party presenting facts in support of their claim or defence must bear the burden of proving those facts. When presenting electronic evidence, such as emails or conver- sations on messaging platforms (eg, WhatsApp, Line, Facebook Messenger or Microsoft Teams), the opposing party may dispute the authenticity and reliability of this evidence. Consequently, the presenting party must prove that these electronic communications did indeed take place, putting a significant burden on the presenting party and consuming time in the court process. To address this issue, the ETB includes provisions shifting
the burden of proof which means that the party challenging the reliability of electronic data will bear the responsibility of disproving its reliability. In addition, to support and facilitate the adop- tion of electronic transactions, the Electronic Transaction Development Agency (ETDA) will be empowered to prescribe methods that com- ply with the relevant provisions of the ETB. This includes issuing a list of standards or technolo- gies considered reliable methods and certifying the implementation of such standards or tech- nologies in electronic transactions as a reliable method. In the event of a dispute concerning an elec- tronic transaction utilising technology or stand- ards that the ETDA has declared or certified as reliable methods, if the user of the certified tech- nology or standard, or the user of the service, as applicable, can demonstrate full compliance with such standards or technologies, or can show they have used the services of a certified provider, the party challenging the validity will bear the burden of proof and be responsible for the costs of proving the challenge to reliability. However, if the challenging party is a consumer under the Consumer Protection Act, the burden of proof will rest with the user of the certified technology or standard. This change ensures greater certainty in court proceedings, strengthens the credibility of elec- tronic evidence, and safeguards the integrity of the judicial process, promoting fairness and justice. Electronic transferable instrument A transferable instrument is a document that allows the transfer of rights specified therein to another person through endorsement or by mere delivery of the instrument, depending on
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