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.

people on a video call

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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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.

stylish businesspeople in outerwear shaking hands

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.

Currently, there are plenty of internet users causing copyright infringement works substantially. The current Copyright Act does not cover the advance of today’s technology. Therefore, the Amendment to Copyright Act (No. 5) B.E. 2565 (“Act”) was proposed by the Ministry of Commerce and will be officially enforced on 23 August 2022. The reasons for enactment of this Act are for complying with the World Intellectual Property Organization’s Copyright Treaty (WIPO Copyright Treaty) in which Thailand became a contracting party, strengthen efficiency in protecting copyright works while changing in technology as well as revising the provisions on protection of technological measures. This Act also improves the provisions on limitation of liability of the service providers for effective law enforcement along with creating cooperation between service providers and copyright owners in solving piracy problems on the internet.

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This Act has added definition of the term “Service Provider” which has a broader meaning than the current Copyright Act and also added the definition of the term “Service User”. The Act has also amended the definition of “Technology Protection Measure” to include the performer’s rights and recording of performance mediums. Moreover, this Act has intended to improve the provisions on limitation of liability for several types of service providers which are service providers for mediums for transmitting computer data or allowing the communication to be communicated by other means through the computer system, temporary computer storage service providers, computer depository service providers, and service providers for the computer data search. It has also amended the way to conduct taking down and notice against the infringement works. It is hoped that this Act will help in balancing among the rights of copyright holders, liabilities of service providers and using of copyright works under fair use principal.

Ministerial Regulation on Exemption of Fine under the Law on Trademark and Ministerial Regulation on Exemption of Fine under the law on Patent

On 24 January 2022, the Cabinet has approved in principle the Draft Ministerial Regulation on Exemption of Fine under the Law on Trademark B.E. ….  (“Ministerial Regulation on Trademark”) and the Draft Ministerial Regulation on Exemption of Fine under the Law on Patent B.E. …. (“Ministerial Regulation on Patent”)  as proposed by the Ministry of Commerce in order to exempt a fine charged at the rate of 20% on the renewal of trademark registration, renewal of service mark, renewal of certificate mark, and renewal of collective mark which the owner of such marks shall pay for such fine in the event that the registration of such marks is not renewed within the period stipulated by the law as well as exemption a fine charged at the rate of 30% of the annual fee as the owner of patent or a petty patent fails to pay the annual fee within the period stipulated by law.

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The exemption of both fines shall be enforced on the day following the date of Government Gazette’s announcement until 30 September 2022 (B.E. 2565) in order to reduce the burden of trademark owners and patent owners, alleviate the economic impact, and avoid contacting government agencies to ask for permission from government agencies which will relieve the impact occurred to the people from the pandemic of COVID-19. The main points of these Ministerial Regulations are as follows:

  • Ministerial Regulation on Trademark – This is an exemption of the fine charged at the rate of 20% on the renewal of trademark registration, renewal of service mark, renewal of certificate mark, and renewal of collective mark which the owner of such marks shall pay for such fine in the event that the registration of such marks is not renewed within the period of time according to the Trademark Act B.E. 2534 as amended by the Trademark Act (No. 3) B.E. 2016
  • Ministerial Regulation on Patents – This is an exemption of the fine charged at the rate of 30% of the annual fee to the owner of a patent or a petty patent who fails to pay the annual fee according to the Patent Act B.E. 2522 as amended by the Patent Act (No. 3) B.E. 2542

Nevertheless, the aforementioned draft Ministerial Regulation for Trademark and Ministerial Regulation for Patent have no effect on extending the duration of application for renewal. Besides, on the topic of the payment of renewal fees, trademark owner together with patent or petty patent owner is still required to submit an application for renewal and pay the renewal fee within the period stipulated by each of applicable law.

Suspension of the Incentives for Owning Lands by Foreigners in Thailand

On 21 January 2022, it is official that the incentives for foreigners owning the lands and real estates in Thailand has been halted. It was previously controversial that the governmental body for economy drive under the Covid-19 situation is deliberating the additional incentives for foreigners to own the lands and real estates in Thailand (the “New Incentives”).

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Prior to the deliberation on the New Incentives, foreigners, mostly individuals, are not permitted to own the lands in Thailand under general circumstances. Foreigners residing in Thailand are permitted to own only residential units in apartments or condominium with the regulated ratio that the foreign ownership in any specific condominium must not exceed 49% of the total space. The leasehold up to 30 years is also another option permitted by the laws.

Until late 2021, the economy driving body has proposed to deliberate on the New Incentives with details as follows:

  1. Lifting 49% restriction foreign ownership in condominium – this incentive is later halted due to the requirement to amend the Building Control Act B.E.2522. The amendment process will take approximately 1 year which will not be a swift action to tackle to economic crisis;
  2. Extending the leasehold from 30 years to 50 years – this incentive is not practicable. The 30-year leasehold is currently legitimated under the Thai Civil Commercial Code. The extension of the leasehold by foreigners to 50 years may require amending on Civil Commercial Code or passing a new act with a specific purpose to extend the timing limit of the leasehold by foreigners. This is not the swift response to spontaneous economic crisis; and
  3. Permitting foreigners to own the land for a space not more 1 rai (approximately 1,600 sq.m) – the responsibilities lie upon Department of Lands to work on the legitimation and the existing land laws of this incentive. As it is a sensitive issue, this incentive is now also suspended. 
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The ownership of lands/real estates by foreigners in Thailand for residential purpose is still under the existing options stated above. For the business and commercial purpose, the land ownership by foreigners is based on the similar principles. It is however can be slightly different depending on the type of business which require specific consultations with competent bodies and authorities.

On 4 January 2022, The Cabinet has approved in principle the Draft Announcement of the Ministry of Commerce on the Stipulation of Trademark and Copyright Infringement Goods are Prohibited to be Exported, Imported, and Transited Through the Kingdom B.E.  .… (“the Draft Announcement of Trademark and Copyright Infringement Goods”).

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The purpose of this Announcement of Trademark and Copyright Infringement Goods is to improve the mechanisms to prohibit exports, imports, as well as transits through the kingdom of goods infringing trademark and copyright in accordance with the current situation which seeks to prevent intellectual property infringement at border crossings more effectively. Also, this is consistent with relevant current situations, laws, and international obligations, i.e. the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Reginal Comprehensive Economic Partnership (RCEP). The main points of this Announcement of Trademark and Copyright Infringement Goods are as follows:

  • Trademark and copyright infringement goods shall be prohibited from exporting, importing, and transiting through the kingdom, except in the case of carry-on items that are not unreasonably large amount and not for the purpose of commercial use.
  • The owner of a trademark or copyright is able to inform information on its trademark or copyright to a customs officer in accordance with the rules, procedure, and conditions prescribed by the Customs Department for the avail of inspection of goods which is under reasonable consideration that it infringes trademark or copyright of such owner.

Therefore, the Customs Department is able to take steps to improve the related procedures to comply with relevant international agreements as well as facilitate the operators who act in good faith to be able to pass customs clearance quickly.