In September 2021, Thailand’s Electronic Transactions Development Agency (ETDA) issued an updated draft royal decree for digital platforms—a potentially far-reaching royal decree that was the subject of a public hearing in July 2021. The ETDA made the changes in response to a considerable amount of feedback and comments from business operators and other stakeholders.

The key changes to the draft royal decree are outlined below.

Definitions

The updated draft broadens the definition of digital platforms subject to the royal decree by removing mention of offering goods, services, or intangible assets, and by deleting a phrase related to contract issues. As a result, “digital platform” currently refers to any intermediary digital platform that provides a connection space for “business operators on a digital platform” and “consumers” via a computer network. Similarly, the definitions of “business operators on a digital platform” and “consumers” have been amended by excluding the offering of intangible assets through digital platforms, and the draft emphasizes that business operators on a digital platform are not included in the definition of consumers.

Notification Exemption

Under the updated draft royal decree, a digital platform provider under the supervision of other authorities or falling under the Electronic Transactions Commission’s list of exempted digital platform providers is exempted from the requirement to notify the ETDA of the operation of its digital platform. The commission may also exempt any other digital platform service as it sees fit.

Extraterritorial Effect

The draft provisions subjecting certain digital platforms located outside Thailand to the royal decree and requiring them to appoint a local representative in Thailand have been updated by removing the requirement to issue a tax invoice to consumers in Thailand. Furthermore, the updated draft makes the local representative subject to the reporting obligations and cessation requirements, whereas these obligations were not prescribed in the previous version of the draft royal decree.

Digital Platform Certification Mark

The updated draft royal decree introduces an ETDA certification mark for digital platforms. Display of the mark appears not to be mandatory, but more specific rules, procedures, and other details will be prescribed at a later stage.

Data Sharing

The draft royal decree authorizes the ETDA to request or collect information in relation to a digital platform from other state agencies, pursuant to the law or contractual terms.

Digital Platform Providers’ Obligations

Obligations of digital platform providers replace the “platform-related requirements” from the previous version of the draft royal decree. The latest draft obligates certain types of digital platform providers (to be announced later by the ETDA) to notify their platform users of necessary information prior to or at the time of service, or upon any amendment to the information (such as altered terms and conditions), which may include the following:

• Conditions for provision, suspension, or cessation of service (including clear and fair fees, remuneration, and expenses);
• Criteria used to rank, recommend, or advertise goods or services;
• Satisfaction ratings and feedback from users;
• Access and usage of data shared with business operators on the digital platform;
• Inquiries, complaints, dispute settlement, and timeframe for dispute settlement;
• Responses to unlawful or sensitive content (including content rating practices); and
• Any other matters as deemed appropriate.

Criteria that had applied to small businesses have been removed from the updated draft royal decree.

Compliance Timeline

Once the royal decree is enacted and takes effect, digital platform providers will have 30 days to take the actions necessary to ensure compliance. The updated draft royal decree has been proposed to the Ministry of Digital Economy and Society for approval before it is sent to the cabinet for further consideration. While the original expectation was for the royal decree to be adopted by the end of this year, the latest indications are that it may not reach that step until sometime in 2022.

Tilleke & Gibbins will continue to closely monitor the progress of this draft royal decree. For more details about the draft royal decree’s regulatory requirements, please contact Gvavalin Mahakunkitchareon at [email protected] or Thammapas Chanpanich at [email protected].