As human communication through electronic channels, most notably via mobile applications, increasingly surpasses face-to-face interaction, it naturally follows that agreements, disputes, and other legally significant conduct by and between individuals have also occurred entirely within the digital realm. As a result, an important legal issue arises that brings to question the extent and validity of electronic-based evidence such as e-mails or screenshots of chat conversations as evidence in legal proceedings.

Historically, Thai courts did not recognize electronic evidence in civil proceedings,¹ but was taken into account on a case-by-case basis during criminal proceedings²  However, following the passage of the Electronic Transactions Act (B.E. 2544) in 2001, the following conditions have since been granted: (1) electronic evidence is admissible in Thai legal proceedings, and in cases where the law requires written evidence, electronic evidence may serve as such; and (2) legally-significant acts such as contractual promises are granted full legal effect despite the fact that these acts are conducted entirely by electronic means. Nevertheless, in spite of the Electronic Transactions Act, issues pertaining to the enforceability of the legislation still exist and remain unaddressed.

Limitations in enforceability

The first issue is concerned with the obligation to pay a stamp duty on certain legal documents under the Revenue Code. The Code holds that certain categories of legal agreements are not admissible as evidence in court unless the requisite stamp duty, which is a tax levied by the government on legal documents, has been paid. Examples of legal documents that require the payment of a stamp duty include leases of certain kinds of immovable property, share transfers, loans, insurance contracts, and powers of attorney, among others.

The Electronic Transaction Act itself provides for the relevant government departments to pass rules that are applicable to the electronic payment of stamp duties where they are required. However, the Revenue Department only began to enact certain rules related to stamp duties for electronic documents in limited cases. This means that a major obstacle still remains regarding the enforcement of the Electronic Transactions Act vis-à-vis legal agreements that fall within the category of legal documents requiring the payment of a stamp duty.

The second issue applies to the requirement mandated by Thai Law that calls for certain types of legal agreements to be registered with the relevant authorities. An example of this would be the lease of immovable property such as land or a condominium unit for at least 3 years or more. Such agreements must be registered with the Land Department in order to be enforceable.

Furthermore, any agreement to lease immovable property must be evidenced in writing, meaning the question of enforcing an agreement to lease immovable property that is executed electronically is highly questionable. For example, if a lease agreement for land that is valid for less than three years is executed through an exchange of e-mail messages, it is presumably enforceable since electronic evidence may be used where written evidence is required. However, it will nevertheless require the payment of a stamp duty, and the relevant rules for doing so have yet to be clearly defined. In contrast, a lease agreement for a condominium that is valid for less than 3 years may very well be enforceable in merely a digital form since such an agreement does not require payment of stamp duty.

The third issue, which differs from the first two, dwells on the admissibility of electronic information as a form of evidence. The civil procedure rules for courts of general jurisdiction in Thailand do not specifically address the submission of electronic evidence in its own right. Therefore, electronic evidence must be presented as either documentary or physical evidence whereby the two categories have their own separate rules and considerations.

Moreover, the courts in Thailand have not treated the issue consistently, holding electronic evidence as both a document and a physical object in different rulings.³ At this time, there does not appear to be a definitive test to determine whether electronic evidence must be treated as one or the other. Nevertheless, Thai legal scholars who have written about the subject appear to be of the opinion that electronic evidence is a form of documentary evidence based on how the term “document” is defined under criminal law.⁴ The Criminal Code generally defines a document as a “material that allows for the expression of meaning…”⁵

In any case, the failure to enact a specific set of rules that address the admissibility of electronic data as a form of evidence in its own right further serves to hinder the enforceability of the Electronic Transactions Act, since it goes without saying that purely digital forms of evidence necessitate their own unique considerations.

 

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 Don Chaiyos Sornumpol

1. Thai Supreme Court Decision No. 3046/2537
2. .Thai Supreme Court Decision No. 7264/2542
3. Thai Supreme Court Decision No. 9/2543, Thai Supreme Court Decision No. 7155/2539
4. Suthada Wattanawichien, “The Admissibility and Weighing of Evidence in the Form of Electronic Information.” Judicial Training Institute. 2011.
5. Section 1(7) of the Criminal Code