New Law Governing Platform Service Providers

On 1 June 2022, the Cabinet has in principle acknowledged the law governed and controlled the platform service providers.

Keys issues of this law are as follows:

  • The platform service providers who will be required to follow this law are the intermediary service providers, hosting service providers, online platform providers, very large online platform providers and gatekeeping platform providers. The service providers who will be excluded from this law will be such as the service providers who have transactions not more than 10,000 transactions per day, service providers who provide the services for limited groups of service users (services provided in internal organizations) and service providers who provide the services for only goods or services that they are the distributors or manufacturers.
  • Such service providers will need to follow the provisions of this law such as disclosing of transparent report and having system for users to contact with while having problem in using the platforms.
  • Such service providers (except intermediary service providers) will need to have methods or systems for notifying of any infringement or using data illegally including removal or block accession to illegal data.
  • Online platform providers and very large online platform providers will have duty to indicate measures to prevent infringement and damage on platform both on the parts of service providers and service users and the law also indicates liability in case of neglect in performing their duty causing infringement to be occurred.
  • Very large online platform providers will have the duty to appoint an outside specialist to assess risk of system and other risks which may be occurred while using platform as well as disclosing of result of testing of system and factors and grounds leading to offers for services to service users.
  • There is an accreditation of trusted whistle blower system governed by the relevant authority (i.e. Electronic Transactions Development Agency : ETDA). The authority will need to make and update the list of such whistle blower from time to time.
  • The agreement between the service providers and service users will need to be complied with those prescribed by the relevant authority otherwise it will be void.
  • The Trade Competition Committee will be the authority to indicate and announce the list of gatekeeping platform service providers.

Amendment of Criminal Procedure Code on Hearing Proceedings

On January 4, 2022, the Cabinet has approved in principle a draft Act Amendment of the Criminal Procedure Code (No..) B.E… (“Draft Act”) in order to amend Section 172 paragraph five and adding paragraph six to such section.

The purpose of this Draft Act is to amend the Criminal Procedure Code to allow the court’s hearing proceedings and testimony taken place out of the court in a form of VDO conference proceedings in the event of public disaster or necessity for safety. It also includes the situation of coronavirus disease 2019 (Covid-19) pandemic.

This VDO conference proceedings can be conducted under consent of the defendant and the court deems appropriated. The proceedings must not cause damage or injustice to the defendant in accordance with the rules and procedures prescribed by the President of Supreme Court and it shall be deemed that such proceedings are considered and examined in the court room.

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Under the rules and procedures of the President of Supreme Court, sufficient collateral must be provided for opening trial and communication between the defendant and its lawyer is private. It is also required to consider regarding the person whom the laws treat under special protection or care.

Board of Investment Actions according to Economic and Investment Stimulus Measures

On 10th May 2022, the Cabinet approved in principle a draft Regulation of Prime Minister Office on Setting up of Visa & Work Permit  Service Center (No. ..) B.E. …. and a draft Announcement of Board of Investment on Rules and Conditions for Special Non-Immigrant Visa (Long Term Resident Visa: LTR) and a draft Announcement of Board of Investment on Rules and Conditions for Special Non-Immigrant Visa (Smart Visa) No. .. B.E. …. as proposed by the Board of Investment.

Key summary of the above-mentioned draft rules and regulations are as follows:

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  • LTR visa holders and their dependents including foreign cinematographer staffs as proposed by the Creative Economy Agency are allowed to use the service of this visa and work permit service center. The Board of Investment will be in charge of this service center.
  • There are 4 types of foreigners who are eligible to apply for the LTR visa, i.e. wealthy global citizen, wealthy pensioner, work from Thailand professional and high skilled professional and their spouse and children.
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  • The applicant under the LTR visa is required to show a health insurance having coverage of not less than 50,000 USD and having period of coverage not less than 10 months or holding a Thai social security or money deposited in Thai or foreign account for not less than 12 months in the amount of not less than 100,000 USD. The applicant is also required to show a personal income at least such as average of 80,000 USD per year within 2 years. The employment or service contract with an entity in Thailand or overseas is required. The documents showing experiences of working in target industries no less than 5 years except the applicant who will work for educational institute or research or special coaching institute operated by Thai government or government authority or applicant who graduates in doctorate degree or equivalent.
  • The applicant who would like to apply for a Smart Visa is required to be a specialist on science and technology in the target industries certified by the Strategic Talent Center or related organizations. There is a direct investment or through an investment company in the business from the applicant not less than 20 million THB in the industry using technology base for its manufacturing or service.

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Business Incorporation and Relevant Registrations in Thailand

Setting up a company in Thailand requires at least 3 or more individuals to subscribe their shares at the incorporation stage. Then, such subscribers shall conduct a statutory meeting for a company establishment to appoint the director(s) of the company and hand over the business to the director(s). The director(s) shall call for shares subscription either in kind or in cash and register for incorporation within 3 months from the statutory meeting.

The company’s director(s) can be both Thai and foreigner. This does not affect the ownership of shares in the company or types of the company whether it is a Thai company or a foreign company under Thai law. However, in the event that the director(s) is a foreigner and receive salary from the company, this shall be considered as an employee who is required to apply for a work permit in order to work in Thailand legally.

Once the company has already been established and if the company has an employee, social security registration is required. In addition, if the company has its income more than 1,800,000 baht per year, the company is required to register for value added tax (VAT) number.

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Last but not least, other registrations or procedures may be required for any other specific types of business. For example, specific licenses are required for operating the restaurant business, securities business, tourism business, etc. The business owners need to seek consultation and check the relevant laws whether the business requires any other specific registrations or procedures.

Draft Ministerial Regulation Designating Government Agencies Being Able to Request an Execution Officer to Conduct Administrative Enforcement (No. ..) B.E. ….

The Cabinet, on 19 April 2022, approved in principle the draft Ministerial Regulation Designating Government Agencies Being Able to Request an Execution Officer to Conduct Administrative Enforcement (No. ..) B.E. …. (“Ministerial Regulation”) as proposed by the Ministry of Finance.

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The main object of this Ministerial Regulation is to prescribe that 16 agencies, i.e. the Bank of Thailand (BOT), Government Pension Fund, National Savings Fund, Life Insurance Fund, General Insurance Fund, Neighbouring Countries Economic Development Cooperation Agency (NEDA), Bank for Agriculture and Agricultural Cooperatives, Export-Import Bank of Thailand (EXIM Bank), Thai Credit Guarantee Corporation, Government Housing Bank (GH Bank), Government Lottery Office, Tobacco Authority of Thailand (TOAT), Securities and Exchange Commission (SEC), Deposit Protection Agency (DPA), Office of Insurance Commission (OIC) and Student Loan Fund, are able to request an execution officer to conduct on administrative enforcement under the law regarding administrative procedures.

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Under the Administrative Procedure Act B.E. 2539 (1996) (“Act”), if the government agencies, in the case of force for payment and the administrative order requesting for the payment becomes final, wish the execution officer under the Legal Execution Department to enforce such administrative order, the request shall be submitted unilaterally to the court within 10 years from the date that the administrative order to settle the payment becomes final.

The court will issue a writ of execution to enforce such administrative order by specifying the amount that the person subject to the administrative enforcement has not paid according to the administrative order, regardless of whether such government agencies implement the administrative enforcement or carry out the administrative enforcement but have not receive payment or receive some portion of the same.

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The Ministry of Finance has specified the abovementioned 16 government agencies under the supervision of the Ministry of Finance in order to effectively implement the enforcement of administrative order to settle the payment.

Draft Ministerial Regulation Stipulating Rules, Procedures, Durations and Rates of Compensation for Elder Benefits during the Reduction of Rate of Contribution Period (No. ..) B.E. ….

The Cabinet, on 5 April 2022, approved in principle of the Draft Ministerial Regulation Stipulating Rules, Procedures, Durations and Rates of Compensation for Elder Benefits during the Reduction of Rate of contribution Period (No. ..) B.E. …. (“Ministerial Regulation”) as proposed by the Ministry of Labor.

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Due to the 3-month reduction of contribution rate measure causing some insurers receive a reduced old age pension based on the amount of contribution into the fund, the Ministry of Labor then proposed for enforcing of the Ministerial Regulation to help such insurers. he main points of this Ministerial Regulation are as follows:

  • This Ministerial Regulation shall be effective from 1 May 2022 onwards.
  • The payment of old age pension to insurers who contribute to the fund during the reduction of contribution rate from 1 May 2022 – 31 July 2022 shall be calculated from additional 2.95% of wages of insurers from 1 May 2022 – 31 July 2022 in order to additionally pay the old age pension from the rate stipulated in Article 6 (2) of the Ministerial Regulations Stipulating Rules, Procedures, Durations and Rates of Compensation for Elder Benefits B.E. 2550 (2007).
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The Ministry of Labor has issued the measures to alleviate suffering of insurers affected during the reduction of contribution rate causing some insurers receive less old age pension. The old age pension shall be paid to the insurers who contributed   into the fund during the reduction of the contribution rate, from May – July 2022, calculated from the additional 2.95% of the insurers’ wages. Such increased payment of pension is from budget of the Social Security Fund.

Updated Rate of Contribution to the Social Security Fund

The Cabinet, on 5 April 2022, approved in principle of the draft Ministerial Regulation Stipulating the Rate of Contribution to the Social Security Fund B.E. …. (“Ministerial Regulation”) as proposed by the Ministry of Labor in order to make an amendment to the Ministerial Regulation Stipulating the Rate of Contribution to the Social Security Fund B.E. 2564 (2021). The main points of this Ministerial Regulation are as follows:

  • Repealing the Ministerial Regulation Stipulating the Rate of Contribution to the Social Security Fund B.E. 2564.
  • From 1 May – 31 July 2022, the government, employers, and insurers under Section 33 of the Social Security Act B.E. 2533 (1990) shall contribute 0.9% of the insurers’ wage rate for compensation in the event of injury or sickness, disability, death, and childbirth. For the compensation in case of child support and old age, the employers and insurers shall contribute 0.05% of the insurers’ wage rates and the government shall contribute 1.6% of the insurers’ wage rates. For the compensation in case of unemployment, the employers and insurers, shall contribute 0.05% of the insurers’ wage rates and the government shall contribute 0.25% of the insurers’ wage rates.
  • From 1 August 2022 onwards, the government, employers and insurers under Section 33 of the Social Security Act B.E. 2533 shall contribute 1.5% of the insurers’ wage rates to the fund for compensation for injury or sickness, disability, death, and childbirth. For compensation in case of child support and old age, the employers and insurers shall contribute 3% of the insurers’ wage rates and the government shall contribute 1% of the insurers’ wage rates. For the compensation in case of unemployment, the employers and the insurers shall contribute 0.5% of the insurers’ wage rates and the government shall contribute 0.25% of the insurers’ wage rates.
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The reduction in employers and insurers contribution rates has resulted in a lower contribution that the employers and insurers is required to contribute to the Social Security Fund from 5% to 1% of the insurers’ wage rates. In addition, the insurers under Section 39 of the Social Security Act B.E. 2533 (1990) also contribute less to the Social Security Fund, from the rate of 432 baht per month to the rate of 91 baht per month.

Tax Relief Measures for Digital Asset Trading

The Cabinet, on 8 March 2022, has approved in principle drafts Royal Decree under the Revenue Code regarding VAT exemption (No. ..) B.E. …. (“Royal Decree”) and Ministerial Regulation (No. ..) B.E. …. (“Ministerial Regulation”) issued under the Revenue Code regarding VAT and income tax exemption as proposed by the Ministry of Finance.

close up shot of two people holding a gold coin

These drafts Royal Decree and Ministerial Regulations are measures to relieve the tax burden for people in trading digital assets by exempting VAT for transferring of cryptocurrencies or digital tokens in digital asset exchanges and transferring of digital currencies issued by the Bank of Thailand (“BOT”) as well as exempting personal income tax from the benefit of transferring of cryptocurrencies or digital tokens from the profits earned.

The main points of these Royal Decrees and Ministerial Regulation are as follows:

  • The drafts Royal Decree is applied for VAT exemption for transferring of cryptocurrencies or digital tokens in digital asset exchanges approved by the Minister of Finance and VAT exemption for transferring of digital currencies under the development and trial program for public sector usage issued by the BOT, starting from the 1st date of the next month that the Cabinet has granted its approval until 31 December 2023.
person holding gold and silver round coins in clear glass jar
  • The draft Ministerial Regulation is applied for personal income tax exemption on profits obtained from transferring of cryptocurrencies or digital tokens in digital asset exchanges approved by the Minister of Finance in the amount equal to losses in the same fiscal year (the other words, profits – losses = amount of income for tax calculation), starting  from 14 May 2018 onwards, in which rules, procedures and conditions announced by the Director-General of the Revenue Department will be applied.

Asia IP : When should you rebrand?

“In Thailand, there is a very old brand for compact powder”

“When the younger generation of owner family members took over the management, they saw that the product that was popular 50 years ago was not suited for the consumers in a younger generation. The management started rebranding and re-packaging the overall product, making it more attractive to the new generation of consumers which are their targeted group. This local product now becomes an eye-catching compact powder fighting with many more western brands.”

Panisa Suwanmatajarn said in Asia IP When should you rebrand? on 17 January 2022.

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Observations of the Extraordinary Committees Considering on Revision of the Copyright Act (No. ..) B.E. ….

On 1 February 2022, the Cabinet considered and approved the following resolutions:

  1. The Cabinet considered and approved observations of the Extraordinary Committees of the House of Representatives and the Senate on revision of the Copyright Act (No. ..) B.E. …. as proposed by the Secretariats of the House of Representatives and the Senate.
  2. The Office of the Council of State shall accept the observations of the Extraordinary Committees of the House of Representatives for consideration. If the Office of the Council of State deems it appropriate to make amendment on the ground for preparation of this revision of the Copyright Act (No. ..) B.E. …. , the Office of the Council of State shall send to the Secretariat of the Cabinet on such revised ground according to the observations of the Extraordinary Committees of the House of Representatives and the Senate for publishing in the Government’s Gazette.
  3. The Ministry of Commerce, as the main agency, is required to consider the observations of the Extraordinary Committees of the House of Representatives and the Senate together with the Office of the Court of Justice, Royal Thai Police, and relevant agencies and summarize the results of consideration and submit the same to the Secretariat of the Cabinet within 30 days for the Cabinet’s consideration.
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The main points of these observations are as follows:

  • This revision of Copyright Act (No. ..) B.E. …. is essentially an amendment to the Copyright Act B.E. 2537 regarding the duration of copyright protection in photographic works by providing protection for photographic works throughout the author’s life and for 50 years from the death of the author in order to comply with the World Intellectual Property Organization’s Copyright Treaty as well as making amendment on provisions of the technology protection measures and  the limitation of liability of service providers to create a mechanism for cooperation between service providers and copyright owners to promote fair trade on the Internet. In addition, regarding the penalties, this revision of Copyright Act (No. ..) B.E. ….  increases penalties for offenses in providing, producing, selling or distributing services, products or devices causing ineffectiveness on technology protection measures in order to create prevention of an infringement of copyright works more effectively.
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  • The Extraordinary Committees of the House of Representatives and the Senate consider that the ground for amendment of Copyright Act (No. ..) B.E. …. is too narrow since it does not cover the supervision of copyright works. The Extraordinary Committees of the House of Representatives and the Senate therefore deem it appropriate to amend the same to provide effective protection of copyright works and keep up with technological changes to be in line with consumer’s behaviors and current social situations. There are also observations about the development of copyright database system, encouraging the use of other intellectual properties in which the term of protection is going to expire for the benefit of Thailand, stipulating guidelines or practices regarding litigation of copyright infringement and considering amendment on the minimum penalty rate under the Copyright Act B.E. 2537 to make all provisions being in line to each other in the future. Last but not least,  to provide effective protection of copyright works and keeping up with technological changes, the Extraordinary Committees of the House of Representatives and the Senate considers making amendment to the provisions related to the protection of performers’ rights to suit the current situation as well as encouraging copyright owners to adopt technology protection measures that do not impede the use of assistive technology for persons with disabilities to access copyright works and creating knowledge and understanding of this revision of Copyright Act (No. ..) B.E. ….