Compliance with Takedown Notice Practices in Thailand

The takedown notice mechanism is an important tool for intellectual property right holders to combat the dissemination of illegal or infringing contents on the internet. In Thailand, there are specific provisions under the Computer-Related Crime Act B.E. 2550 (2007) (“CCA”) and the Copyright Act (No. 5) B.E. 2565 (2022) (“CA”) that govern the takedown notice processes.

Takedown Notice under the CCA:

Under the CCA, a competent official appointed by the Minister of the Ministry of Digital Economy and Society (“MDES”) has the authority to issue takedown notice for illegal computer data. The competent official, with the approval of the MDES, can file a petition with the court, accompanied by evidence, to request the court to block or delete the computer data. This applies to computer data that constitutes an offense under the CCA, data that affects the security of Thailand, or illegal contents.

Internet service providers (ISPs) are required to comply with takedown notice from competent officials if the notice is in the prescribed form under the CCA’s regulations. ISPs must fulfill the takedown notice within the timeframe specified by the court, not exceeding 15 days from the court’s order, unless there is a reasonable necessity for a delay.

Takedown Notice under the CA:

The Copyright Act (No. 5) B.E. 2565 (2022) provides copyright owners with the ability to initiate takedown notices for copyright infringement contents in the computer systems of various types of ISPs, including intermediary ISPs (Mere Conduit), caching ISPs, hosting ISPs, and search engine ISPs. Copyright owners can notify these ISPs to remove the claimed infringing contents, and the ISPs must promptly remove such contents. The ISP must also inform the alleged infringing user to file a counter-notice, which will be forwarded to the copyright owners. If the copyright owners fail to file a lawsuit against the alleged user within 30 days of receiving the counter-notice, the ISPs must restore the disputed information or allow access to the contents.

Takedown Notice for Other Types of Intellectual Properties:

Unlike the CA, other intellectual property-related laws, such as those governing trademarks and patents, do not explicitly provide provisions for takedown notices. In practice, intellectual property rights holders need to engage the Intellectual Property Rights Enforcement Office, which relies on the CCA to address illegal contents related to these types of intellectual property.

Despite the existence of these mechanisms, there is currently no comprehensive guideline issued by the government to assist intellectual property right holders in protecting their interests. Additionally, it remains unclear how Thai laws will be enforced against ISPs that do not comply with requests from rights holders, as the takedown of infringing contents currently relies on the cooperative basis of ISPs. However, the Department of Intellectual Property is working on establishing better mechanisms to enforce takedown notices for intellectual property infringing contents, including cooperation between governmental authorities and potential amendments to existing laws to address evolving technologies.

Author: Panisa Suwanmatajarn, Managing Partner.

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USTR Annual Review on Thailand Intellectual Property Protection 2023

The Office of the United States Trade Representative (USTR) conducts an annual review of intellectual property (IP) protection and enforcement in U.S. trading partners worldwide. Countries are categorized based on their IP infringement rates, with priority given to addressing issues in countries with high rates of infringement (Priority Foreign Country: PFC), i.e., countries on the Priority Watch List (PWL), and countries on the Watch List (WL).

Thailand was previously categorized as a country on the Priority Watch List from 2007 to 2017. However, on December 15, 2017, the USTR upgraded Thailand’s IP protection and enforcement status to the Watch List. Currently, Thailand remains on the Watch List along with 22 other countries. The USTR’s Notorious Markets Report for 2022 identified the MBK Center as the only market in Thailand with a high rate of IP infringement.

The USTR’s report acknowledges that Thailand has made progress in improving IP protection and enforcement. Efforts have been made to seize counterfeit and pirated goods, combat the sale of counterfeit goods online, and enhance cooperative measures among governmental agencies. Notable proceedings and plans by governmental agencies include:

  1. Amendment to the Copyright Act B.E. 2537 (1994) to strengthen copyright owners’ rights, allowing them to initiate takedowns or block access to copyright infringement contents on the internet. The amendment also extended the lifespan of photography protection and facilitated Thailand’s accession to the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT).
  2. The development of the Thai Customs IPR Recordation System (TCIRs), an online system where right holders can submit trademark and copyright information to customs officials for verification of authenticity in imported, exported, or transit goods.
  3. Cooperative measures among governmental authorities and organizations to combat the sale and advertisement of counterfeit goods online and online piracy. A Memorandum of Understanding (MOU) has been established between right holders and advertising associations to restrict support for websites that infringe on intellectual property.

However, the USTR report also highlights concerns and areas of improvement. The USTR recommends amending the Patent Act B.E. 2522 (1979) to streamline the patent registration process, reduce patent backlog and pendency, and prepare for accession to the Hague Agreement. Additionally, an amendment to the Copyright Act B.E. 2537 (1994) is suggested to address enforcement obstacles and enable Thailand’s accession to the WIPO Performances and Phonograms Treaty (WPPT).

The Department of Intellectual Property (DIP) is aware of the USTR’s concerns and is taking action to address them. The DIP is currently in the process of redrafting the Patent Act B.E. 2522 (1979) to provide additional protection for right holders, improve the registration process, and align with global standards for accession to the Hague Agreement. Similarly, the Copyright Act B.E. 2537 (1994) is undergoing legislative amendments for Thailand’s accession to the WPPT. Enforcement issues are being addressed through cooperative measures among 17 governmental authorities responsible for seizing and enforcing the law against IP infringers.

Despite ongoing efforts at the administrative, policy planning, and enforcement levels, intellectual property infringement remains a significant challenge in Thailand. The DIP is committed to resolving this issue and working towards removing Thailand from the Watch List countries.

Please note that the information provided is based on the USTR’s Special 301 Report 2023 and other relevant published sources.

Author: Panisa Suwanmatajarn, Managing Partner.

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Why Businesses Should Choose Rehabilitation

Since the outbreak of Covid-19, the Thai economy has experienced a prolonged shutdown, leading to the need for bankruptcy and rehabilitation processes to address the financial challenges faced by businesses. However, there is a common misconception among the public that rehabilitation is synonymous with bankruptcy. This misunderstanding arises from the fact that rehabilitation provisions are enshrined in the same legislation as the Bankruptcy Act B.E.2483 (1940), leading to the belief that rehabilitation is equivalent to bankruptcy. In reality, the objectives of bankruptcy and rehabilitation are different. Bankruptcy aims to identify and gather the debtor’s assets for equitable distribution among creditors, while rehabilitation aims to maintain the value of the organization, provide an opportunity for the debtor to continue business operations, and preserve employment.

Although both rehabilitation and bankruptcy share the objective of resolving creditor issues through equitable debt distribution, they involve different processes. In the case of bankruptcy, the debtor must have a debt exceeding 2 million baht and be ordered by the court to receivership. The court will then schedule a witness hearing to render a judgment on the debtor’s bankruptcy. Once the debtor is declared bankrupt, the court will order receivership, prohibiting the debtor from engaging in any actions related to their properties or businesses without the court’s approval.

On the other hand, the rehabilitation process requires the debtor to have a debt exceeding 10 million baht and demonstrate a reasonable cause and prospect for the rehabilitation of their business. After the court receives the petition for rehabilitation, an urgent witness hearing is scheduled, and the court can make orders regarding the rehabilitation. Once the court accepts the rehabilitation petition, an automatic stay is initiated, providing legal protection to the debtor against certain actions from creditors until the expiration of the implementation period for the rehabilitation plan or the successful completion of the plan.

The purpose of bankruptcy and rehabilitation laws is for building and improving investor trust. Each approach has its own strengths and weaknesses, which are outlined below:

Strengths and weaknesses of Bankruptcy:

Bankruptcy primarily focuses on identifying and collecting the debtor’s assets for equitable distribution among creditors. This process involves a receivership order issued by the bankruptcy court, granting the official receiver control and management authority over the debtor’s assets. However, this also means that the debtor loses the right to manage their business.

Strengths and weaknesses of rehabilitation:

Rehabilitation primarily focuses on maintaining the overall value of the organization and providing the debtor with an opportunity to continue business operations. The debtor can request a court’s business organization order, and upon approval, an automatic stay is initiated, allowing the debtor to operate continuously during the debt restructuring process.

The automatic stay in the rehabilitation process serves several purposes, including halting legal actions against the debtor, preserving assets by preventing their seizure or sale, and promoting negotiation and restructuring between the debtor and its creditors.

It is important to note that the automatic stay is not an indefinite protection. It remains in effect until the court decides whether to accept or reject the rehabilitation petition and plan. If the court accepts the plan, the automatic stay may continue until the plan is fully implemented. However, if the court rejects the plan, the automatic stay is lifted, and creditors can resume their legal actions against the debtor.

Rehabilitation case example:

A prominent company in Thailand, JKN GLOBAL GROUP PUBLIC COMPANY LIMITED (“JKN”), announced its intention to file a petition for business rehabilitation on November 8, 2023. This action demonstrates the consequences and benefits of the rehabilitation plan, including:

  • Adjusting the company’s business and financial structures to align with current financial and economic conditions.
  • Resolving liquidity problems through organizational restructuring, ensuring the company can continue operating.
  • Attracting financial backing from new investors or financial institutions to infuse capital into the company’s operations.
  • Providing guidance on the sale of non-beneficial or non-income-generating assets and utilizing the proceeds to settle debts owed to all creditors.

In conclusion, when businesses consider the choice between bankruptcy and rehabilitation, they must carefully evaluate the specific processes and operational authority involved. Engaging in the company’s business rehabilitation process allows for effective resolution of liquidity issues with legal backing and ensures fair protection for all stakeholders. Moreover, the company can sustain its business operations during rehabilitation, addressing challenges and generating profits through ongoing activities.

Author: Panisa Suwanmatajarn, Managing Partner.

Trade Competition Commission Draft Announcement on Suggested Price List

In 1999, Thailand enacted the Trade Competition Act B.E. 2542 (1999) (“Act”), establishing the Trade Competition Commission. The Thai Ministry of Commerce proudly introduced this Act with the aim of attracting Free Trade Agreements (FTAs) from countries around the world, thereby enhancing international trade and investments. In 2017, the Thai government proposed a new version of the Act to address new challenges that the previous version did not cover.

The Act is of paramount importance to Thailand for several reasons. Firstly, they promote healthy competition, encouraging businesses to become more efficient, offer lower prices, improve product quality, and foster innovation. This ultimately benefits consumers by providing them with more choices and better access to goods and services. Secondly, the Act protects consumers from anti-competitive practices that could result in higher prices, reduced product quality, or limited options. By preventing monopolistic behavior and collusion, these laws safeguard consumer interests. Additionally, they help attract foreign investment by demonstrating the fairness and transparency of Thailand’s business environment, which can lead to increased economic growth and align with international trade standards, further enhancing the country’s competitiveness in the global market.

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Furthermore, the Act ensures a level playing field for businesses of all sizes, supporting the growth of small and medium-sized enterprises (SMEs) while preventing market abuse by larger companies. They foster consumer trust in the marketplace, which can lead to increased spending and economic stability.

One key provision within the Act is Section 54, which prohibits business operators from colluding in various ways such as fixing purchasing or selling prices or any trading conditions that affect the price of goods or services, limiting the number of goods or services produced, purchased, sold, or provided by each business operator, as agreed, knowingly establishing an agreement or conditions for one side to win an auction or a bid for goods or services, or allocating areas in which each business operator will sell, or reducing the sale or purchase of goods or services.

In practice, many manufacturers or wholesalers provide suggested price lists. However, these suggestions, when followed by wholesalers and retailers, can result in monopolistic practices, reduced competition, or the elimination of competition in a given market.

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To address this issue, the Trade Competition Commission has been granted authority under Section 17(3) of the Act. This authority enables the Trade Competition Commission to regulate business operations and issue Announcements to enforce free and fair competition. In response, the Trade Competition Commission has drafted an Announcement on Suggested Price List Guidelines (“Announcement”).

Once enacted and enforced, this Announcement would prohibit business operators to conduct such as refusing to sell goods and services, reducing the sales of goods and services, or increasing the price of goods and services without reasonable grounds. This Announcement is intended to reinforce Section 54(1) of the Act, preventing monopolies, oligopolies, or any reduction in competition within relevant markets.

Author: Panisa Suwanmatajarn, Managing Partner.

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Proposed Rehabilitation Processes for Small and Medium Enterprises (SMEs)

In 2016, the regulation concerning small and medium enterprises (“SMEs”) was initially introduced to aid SME owners in managing their debts through rehabilitation processes that safeguard the interests of both debtors and creditors.

However, as of 2023, there are over 3 million SMEs in Thailand, playing a critical role in driving the country’s economy. Recognizing this, the Legal Execution Department has expressed a keen interest in ensuring the well-being of SMEs. To this end, they have conducted a public hearing on the draft amendment of the Bankruptcy Act B.E. 2483 (1940), specifically focusing on the business rehabilitation processes for SMEs. Consequently, active efforts are underway to formulate regulations.

In the past, debtors seeking to manage their debts through rehabilitation processes were required to adhere to the provisions outlined in the Bankruptcy Act B.E. 2483 (1940). These requirements included being insolvent and indebted to one or multiple creditors. However, the recent introduction of business rehabilitation proceedings for SMEs has brought about a new rule by eliminating the requirement of being an insolvent person. This means that anyone, regardless of their solvency status, can now initiate the rehabilitation processes.

The recent amendment to the Bankruptcy Act B.E. 2483 (1940) aims to simplify the business rehabilitation processes, making it more accessible for small debtors. This simplification is driven by the current economic and social conditions, and it offers several benefits for debtors. Notably, it introduces a new section that includes an accelerated business rehabilitation processes.

The key summary of the amendments is as follows:

  1. Broadening the definition of debtors in Section 90/91: Previously, the term “debtor” was limited to those specifically prescribed by the Office of SMEs Promotion (OSMEP). The amendment expands the definition to include any juristic person, regardless of the legal classification of SMEs. This change provides SMEs business owners with the opportunity to participate in business rehabilitation, enabling them to restructure their debts and maintain the continuity of their businesses.
  • Revision of the debt threshold in Section 90/92: When a debtor is unable to pay one or several creditors in aggregate, they may file a petition with the court for business reorganization. For individual debtors, the debt threshold has been lowered from 2 million baht to 1 million baht. For juristic persons, the threshold has been revised from not less than 3 million baht to not less than 2 million baht, with an upper limit of 50 million baht. These changes apply regardless of the debtor’s financial status or the number of creditors involved. However, both types of debtors must demonstrate a reasonable cause and prospects for the reorganization of their businesses.
  • Extension of the Business Reorganization Plan (“Plan“) period in Section 90/96(9): Recognizing that a 3-year plan may be insufficient, the amendment extends the Plan period from 3 years to 5 years. This extension aims to enhance efficiency and provide debtors with more opportunities to effectively proceed with their reorganization efforts while ensuring that creditors receive full payment of their debts.
  • Removal of certain rehabilitation processes in Section 90/95: Prior to the draft amendment, individuals seeking business reorganization has to wait for a court order granting absolute control over their property and approval of the Plan before filing a petition for reorganization. This process involved strict legal requirements, such as providing reasons for business reorganization, detailed asset information, and principles and methods, as per Section 90/96 of the Bankruptcy Act B.E. 2483 (1940). These requirements often proved time-consuming and costly. The draft amendment has eliminated some of these processes, allowing debtors or legally authorized individuals to initiate the plan. This change allows both debtors and one or several creditors of the debts arising from a business operation to take the necessary steps toward rehabilitation.
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However, the recent amendment to the Bankruptcy Law B.E. 2483 (1940) is currently pending approval from the Council of Ministers. After this, the next stage will involve the draft amendment proceedings to the Members of the Parliament for consideration and approval before proceedings to the King’s endorsement and publish in the Royal Gazette.

Author: Panisa Suwanmatajarn, Managing Partner.

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Registration and Renewal of Pharmacopeia: Ensuring Quality, Effectiveness, and Safety

The Food and Drug Administration (FDA) has issued a comprehensive notification outlining the requirements for registering and renewing pharmacopeia. This notification emphasizes the need for rigorous standards and the submission of supporting documentation that certifies the safety, quality, effectiveness, and appropriate usage of human and animal drugs.

Certification Requirements and Document Submission

Applicants seeking pharmacopeia registration must adhere to stringent certification requirements. For human drugs, this entails providing a Summary of Product Characteristics (SmPC) certified by the World Health Organization (WHO) Prequalification Program, overseen by respected Stringent Regulatory Authorities (SRAs) such as the European Commission, EMA, FDA, JPharm, Swissmedic, Health Canada, and other regulatory bodies.

Similarly, applicants for animal drugs must submit documentation certifying the safety and efficacy of their products. This includes the SmPC or product information from certified foreign organizations such as the European Medicines Agency (EMA) through its Veterinary Mutual Recognition Index (VMRI), the Heads of Medicines Agencies (HMA), the UK’s Veterinary Medicines Directorate (VMD), the U.S. Food and Drug Administration, the U.S. Department of Agriculture (USDA), as well as regulatory bodies overseeing animal drugs in Canada, Australia, New Zealand, Japan, various European Union member states (Ireland, Austria, Germany, Spain, France, Italy, Belgium, Netherlands, Hungary, Czech Republic, and Bulgaria), and South American countries like Brazil and Mexico.

Detailed Information and Certification

To ensure transparency and accountability, the notification specifies the essential information that must be included in the certifications. This includes the name of the drug, its strength unit, form, indications for usage, size, usage instructions, applicable species, and drug withdrawal periods.

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Safeguarding Public Health and Responsible Use of Pharmaceuticals

The Notification plays a vital role in establishing clear and stringent guidelines for the submission of documentation and evidence regarding the quality, effectiveness, and safety of drugs. By adhering to these guidelines, applicants for both human and animal drugs are required to meet rigorous standards and certification requirements. This ensures that public health is safeguarded, and pharmaceutical products are used responsibly.

Facilitating a Robust and Transparent Evaluation Process

By specifying the necessity of certifications and detailing the required information, such as drug names, strength units, indications, and withdrawal periods, this Notification facilitates a robust and transparent evaluation process for extending pharmacopeia registration. Furthermore, it promotes international harmonization efforts by recognizing certifications from reputable organizations and regulatory authorities worldwide.

Upholding the Highest Standards in Pharmaceutical Quality

Ultimately, this Notification serves as a critical tool within the regulatory framework, fostering confidence in the safety and efficacy of pharmaceutical products for both human and animal use. It reflects the unwavering commitment of regulatory bodies to uphold the highest standards in pharmaceutical quality, ensuring that consumers can trust the drugs they rely on for their well-being.

Author: Panisa Suwanmatajarn, Managing Partner.

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Proposed Amendment to the National Competitiveness Enhancement for Targeted Industries Act

The National Competitiveness Enhancement for Targeted Industries Act, B.E. 2560 (2017) (“Act”), which came into force on February 14th, 2017, established the Commission on National Competitiveness Enhancement for Targeted Industries Policies (“Commission”). This Commission, chaired by the Prime Minister and consists of various key government officials. The duty of this Commission is to drive policies aimed at enhancing specific industries.

The Act grants the Commission the authority to make announcements and prescribe targeted industries. The Announcement No. 1/2560 (2017) on the Investment Promotion Rules under the Act was published specifying ten target industries which are the modern automotive industry, smart electronics industry, quality tourism industry, agricultural and biotechnology industries, high-value food processing industry, robot industry, aviation industry, biofuel and biochemical industry, digital industry, and comprehensive medical industry.

The primary objective of this Act is to provide funding for the business operators in the aforementioned targeted industries as determined by the Commission whom a promotion certificate is granted from the Thailand Board of Investment.

However, there is one critical issue in need of amendment related to the funding mechanism as outlined in Section 29 of the Act. Section 29 specifies that the fund comprises several sources, which are (1) an initial capital allocation by the Government (amounting to 10 billion THB), (2) subsidies from the government, (3) donations or gifts of money or property, (4) money or property vested in the fund, and (5) interest or returns on the fund’s assets. Importantly, the Act does not require funds allocated to the C mission to be remitted back to the Treasury as state revenue. This section of the Act does not establish a legal authority for the government to consistently allocate a portion of taxes collected to adequately fund the Commission.

low angle photography of high rise building

The proposed amendment to Section 29 seeks to introduce a new provision, Section 29(6). This amendment would empower the Minister of Finance to allocate funds from increased taxation as deemed necessary. Such an amendment is crucial as it would bolster the financial resources available to the Commission, thereby mitigating the adverse effects of the increased tax rates imposed in accordance with the Global Minimum Tax of 15%. This tax is levied upon large multinational enterprises with revenues of not less than 750 million EUR (equivalent to approximately 28 billion THB) generated within the jurisdictions of the countries that are members of the Organization for Economic Co-operation and Development (OECD), including Thailand.

In conclusion, the proposed amendment to the Act, specifically the inclusion of Section 29(6), is a vital step towards ensuring the sustained growth and competitiveness of the targeted industries. By allowing the Minister of Finance to allocate funds from increased taxation, these industries will receive enhanced assistance in navigating the challenges posed by the Global Minimum Tax and fostering their continued development.

Author: Panisa Suwanmatajarn, Managing Partner.

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Brief Notification for the Digital Platform Services

The Notification of the Electronic Transactions Commission regarding the Nature of the Digital Platform Services Requiring a Notification of the Brief List (“Notification”) was published in the Royal Gazette on 18 August 2023 by virtue of Section 8 of the Royal Decree on the Operation of Digital Platform Service Business that are Subject to Prior Notification B.E. 2565 (2022) (“Royal Decree”) and it will be enforced on 21 August 2023 onwards.

This Notification is aimed to prescribe details of the qualification of the digital platform service providers under Section 8 of the Royal Decree  which is  (1) earning a yearly gross income in Thailand of not more than 1,800,000 Baht as a natural person, or not more than50,000,000 Baht as a juristic person, and (2) Digital platform service providers with no more than 5,000 monthly average users (“Digital Platform Service Providers”) to notify information listed below (a brief list) to ETDA prior to operating their platforms:

  • Platform operator’s information, i.e., natural person’s name-surname or juristic person’s name, national identification number or juristic person registration number, address, juristic person’s accounting period, and contact channel which can be URL or application.
  • Digital Platform Service Providers’ information, i.e., name, type, and channel of the Digital Platform Service Providers.
  • Digital Platform Service Providers’ point of contact in Thailand.

In the Notification, we noticed that there are additional qualifications of the Digital Platform Service Providers specified therein which we view that those are in conflict with the principle of definition of the term “digital platform services” and Section 8 of the Royal Decree as it shall not include a digital platform service that is intended for offering goods or services of a single digital platform service operator or an affiliated company which is an agent of such operator, irrespective of whether the goods or services are offered to third persons or to affiliated companies.

Furthermore, the aforementioned Digital Platform Service Providers must notify the ETDA of the following information on an annual basis, i.e., (1) within 60 days of the end of the calendar year in the case of a natural person’s platform operator or (2) at the end of the fiscal year in the case of a juristic person platform operator:

  • Value of transactions incurred on the service platforms (if any)
  • Gross income from providing the service platform in Thailand (if any)

This Notification is only applicable to smaller size Digital Platform Service Providers. However, Digital Platform Service Providers in general are still obligated to comply with. The sanction for failure to notify the required information would be subject to the competent official issuing of an order prohibiting the Digital Platform Service Providers from providing the digital platform services.

Author: Panisa Suwanmatajarn, Managing Partner.

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Details of Terms and Conditions for the Digital Platform Service Businesses

On 21 August 2023, the Royal Decree on the Operation of Digital Platform Service Businesses that are Subject to Prior Notification B.E. 2565 (2022) (“Royal Decree”) has come into force. In this regard, Section 17 of the Royal Degree requires the digital platform service and the search engine Providers that meet certain requirements to prepare and publish the terms and conditions with minimum information as prescribed in the Royal Decree (“Terms and Conditions”). The Royal Decree itself, however, did not provide details or clarifications in regard to such minimum requirements. As such, the Electronic Transaction Development Agency (“ETDA”) has issued a Notification of ETDA number Thor.Por.Dor. 4/2566 on the Details on the Publication of Terms and Conditions of Services for Users’ Knowledge (“Notification”).

person marking check on opened book
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The Notification consisted of various details important for the digital platform service providers to comply with. The key provisions can be categorized as provisions that further clarify Section 17 of the Royal Decree and provisions that assign additional obligations to the digital platform service providers. Some of the key provisions are summarized as follows:

  1. The Terms and Conditions must be in Thai, easily understandable by the platform’s users, made easy in terms of accessibility, and composed of enough details for the user to make an informed decision whether to use the platform or not. The digital platform service providers must also notify the ETDA and provide evidence showing that they have published the Terms and Conditions for the users’ knowledge.
  2. Where the digital platform service providers treat each of the products, services, or contents of the business users differently, the digital platform service providers must clearly specify the differences in the Terms and Conditions.
  3. In addition to the prescribed minimum requirement in Section 17 of the Royal Decree, the digital platform service providers that meet the requirement of Section 16 (1) of the Royal Decree must also prescribe an additional item, such as an additional distribution channel, the ownership or entitlement in intellectual property after entering into the Terms and Conditions, ancillary or complementary goods and services that is offered to the users before the transaction is concluded, conditions for suspending or terminating the provision of services, etc.
  4. The Notification further provides an example, easing the digital platform service providers to comply with Section 17 of the Royal Decree, that is, the example of algorithms required to be included in the Terms and Conditions are given, for example, price, keywords, user demographic, quality of products, quality of seller, users’ review towards the goods or services.  
  5. Where Section 17 (8) of the Royal Decree requires the digital platform service providers to include in the Terms and Conditions, “an actions to be taken to illegal goods, services, or contents”, the Royal Decree further clarifies that the digital platform service providers must specify if the processes, measures, or mechanism used by the digital platform service providers in determining if a good, service, or contents are illegal or not, are done by an algorithm decision-making, or by human review. The Notification further requires the digital platform service providers to have in place a notice-and-takedown mechanism and details thereof.
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Please be reminded that the aforementioned information is only a brief detail prescribed under the Notification. Terms and Conditions to be prepared in accordance with the Notification are said to be of complex structures and details. Digital platform service providers must pay attention to the details to avoid any incompliance with the law.

Author: Panisa Suwanmatajarn, Managing Partner.

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ETDA’s Recommendation for an Online Merchant Management System with Cash on Delivery Service

The Electronic Development Transactions Agency (ETDA) has recently proposed a draft of ICT Standards for Electronic Transactions, specifically recommending guidelines for an online merchant management system that offers cash-on-delivery (COD) services. The purpose of this recommendation is to establish consistent practices for service providers in this field, addressing emerging challenges and mitigating potential risks associated with COD transactions. Ultimately, the goal is to enhance customer confidence and trust in the process of buying and selling products through COD.

The recommendation is structured into four main sections: scope, definition, introduction of COD, and conditions for online merchant delivery management services. Key points from each section are summarized as follows:

  • Authentication of COD online merchant service providers are required to authenticate online merchants before allowing them to activate their services on the platform. This includes notifying the merchants about the authentication criteria and the information that needs to be collected, such as their names, identification numbers, and bank account numbers, to be in compliance with relevant laws.
  • Online merchant delivery information must be maintained. Such information includes tracking numbers and recipient details. Additionally, any unusual behavior exhibited by online merchant service providers must be monitored.
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  • Provisions of recipient information on parcel cover sheets
    • Information on parcel cover sheets: service providers are obligated to include clear and visible information on the parcel cover sheets. This includes the service provider’s names, contact information, websites or communication channels, and details related to recipients’ support.
    • Information for assisting recipients: service providers must provide information on how the system assists recipients. This includes details on scenarios where the system can assist, channels for reporting problems, and any evidence that recipients may need to submit for investigation.
  • Monitoring and addressing online merchant delivery behavior to prevent scams related to COD transactions: service providers must continuously monitor and track incidents involving online merchants. They should establish procedures for addressing suspicious behavior, which include the following steps:
    • Suspected scammers: if more than 10% of recipients report unexpected deliveries or parcels, they did not purchase from a specific merchant. In this case, the service providers must permanently terminate that merchant’s account.
    • Non-compliant items: if the items received by recipients do not meet the specifications as specified, service providers should notify the online merchants and request information to investigate and resolve the issue for both the merchants and the recipients.
    • Incident recording for future analysis: service providers are required to maintain records of incidents involving online merchant behaviors, which can be analyzed in the future for further insights.
    • Gathering evidence and reporting wrongdoings: if evidence related to scams or other wrongdoings is gathered, service providers should report the findings to the relevant authorities.

It is important to note that the above conditions and procedures are recommendations with no legal enforcement. They serve as guidance for service providers in the industry to establish best practices and maintain a high level of service quality and protection to the customers.

Author: Panisa Suwanmatajarn, Managing Partner.

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