Thailand: The Impact of Digital Platform Services Law

What is a digital platform service and who will be regulated?

In summary, the Digital Platform Services Law targets both offshore and domestic digital platform service providers, which act as intermediaries between service providers, consumers, and service users in Thailand. This includes, but is not limited to, for example, online marketplaces, e-commerce, cloud storage business, travel and hotel booking, social networks, ride-hailing, food, grocery and package delivery platforms, online search engines, and app stores, whether or not such platforms charge any fees. However, digital platform services that are intended to offer the goods or services of a single digital platform service provider or its affiliates representing such business operator will not be subject to this law (for example, a company’s official website, provided that such website offers its own products and services and is not acting as an intermediary). The law also imposes additional obligations for large, very large, and special platforms, as further described below.

The following digital platform service operators (Operators) will be subject to a notification requirement (Notification Requirement) to the Electronic Transactions Development Agency (ETDA) prior to commencing its business in Thailand:

1. Operators with a gross income from operating a digital platform service in Thailand of more than THB 1.8 million per year if the Operator is an individual or THB 50 million per year if the Operator is a legal entity; or
2. Operators with an amount of average monthly active users (AMAU) in Thailand of more than 5,000 (under the current draft regulation, in counting the AMAU, the user must actually and frequently use the platform, and users who log in from different devices will be counted as one user).

Nevertheless, other digital platform service providers who do not meet the above criteria or who are specifically exempted from the Notification Requirement, as may be further announced by the Electronic Transactions Commission (ETC), are still required by law to submit a much briefer notification before the commencement of their business annually and within the time prescribed by law (Brief Notification Requirement). 

Extraterritorial application

The Digital Platform Services Law also extends its territorial scope to cover Operators located outside Thailand but providing services to users in Thailand if they meet one of the many criteria, for example, all or part of their digital platform is displayed in the Thai language, the domain name is registered in Thai (e.g., ".th," ".Thai," or any other name that refers to Thailand), the digital platform accepts Thai currency, the digital platform pays a service fee to the search engine to attract users in Thailand, or the digital platform has an office, agency, or personnel to provide support or assistance to users in Thailand.

Overseas Operators must also, in writing, appoint a coordinator (residing in Thailand) to liaise with the regulator. Based on our preliminary discussion with the regulator (which may be subject to further changes), it is believed that the representative can be either an individual or an entity (e.g., a law firm, a local company, a representative office, etc.).

Duties and Obligations imposed under the Digital Platform Services Law

1. Annual report – Operators are required to submit an annual report in accordance with the form, as may be further prescribed by ETDA, within 60 days as of the end of each calendar year (for an individual) or the end of each fiscal year (for a legal entity).
2. Changes to information with respect to the digital platform operator – Certain changes to the information concerning Operators (e.g., name, address, contact details, etc.) will be required to be notified to ETDA within 30 days of the change.
3. Announcement of Terms and conditions – For transparency and fairness purposes, certain Operators, for example, an Operator with a service fee, online search engine Operator, are required to announce their terms and conditions to the service users, including, the algorithm used by such Operator to recommend and advertise products and services to the service users, or to evaluate the satisfaction and opinions of service users, etc.
4. Mitigation and compensation measure – Operators must have a mitigation and compensation measure for service users who have been damaged by the operation of the digital platform, which must include a complaint process and a dispute settlement channel.
   
    

Large-Scale Digital Platform and Unique Digital Platform

The following Large-Scale Digital Platforms and Unique Digital Platforms shall have additional duties and obligations (e.g., maintaining a risk assessment and crisis management system and being subject to a regular external inspection), that is, Operators:

1. with a gross income from operating each type of digital platform service in Thailand of more than THB 300 million per year, or from operating all types of digital platform service for more than THB 1 billion per year, or with more than 10% of Thailand's total population as users;
2. operating a unique digital platform due to risks related to financial and commercial stability, creditability of electronic information systems, or may cause damage to the public or have a substantial impact as the ETC may further announce; and
3. operating a digital platform that affects state security, health, environment, energy, communication and telecommunication, transportation and logistics, and public utility, as may be further announced by the ETC.

Penalties

Failure to comply with the Digital Platform Services Law could result in business suspension and criminal liabilities. Additionally, in the case of criminal liabilities, where such an offender is a legal entity, the directors, management, and/or responsible persons may also be jointly liable if the offence committed is a result of an order or action of such persons, or a failure to prevent the action if such persons have a duty to act.

Based on discussion with the relevant officer, where an overseas Operator breaches the Digital Platform Services Law, the ETDA would send a letter informing the overseas Operator of the breach incident and relevant penalty to its representative in Thailand. However, a more strict protocol to deal with overseas Operators is still being discussed among the regulators.

Key Timeline

Although the law will take effect on 20 August 2023, existing Operators who are subject to the Notification Requirement or the Brief Notification Requirement must notify the ETDA within 17 November 2023 and 19 August 2024, respectively.

What is next?

Business operators who conduct digital platform services should promptly consider, in light of the above information, whether their business will fall under the Digital Platform Services Law with the requirement to notify the ETDA and comply with the Digital Platform Services Law. Furthermore, presently, there is an on-going public hearing in relation to numerous sub-regulations to be issued under the Digital Platform Services Law, and the overall public hearing process will take around 3–4 months to complete. Therefore, it is envisaged that the issuance of the sub-regulations will proceed at a fast pace and should be ready to implement soon.