THAILAND

Digital Platform Service Providers – Decree Takes Effect on 19 August 2023

The Royal Decree on Digital Platform Service Businesses Requiring Notification ("DPD"), which was issued on 22 December 2022, will come into effect on 19 August 2023, amidst the lack of a clear guideline or interpretation on which operators will be subject to the new law.

Under the DPD, a "digital platform service" means "a provision of service as a medium via electronic means which processes information management to create linkage by using computer networks between entrepreneurs on digital platform, consumers, or service's users to carry out electronic transaction, with or without charging service fees. [T]his does not include a provision of digital platform service which is intended to offer only goods or services of the digital platform service operator or its affiliate which is an agent thereof, whether the offer is made to a third party or its affiliate." With this broad definition, many existing digital platforms in Thailand's market, including food delivery platforms, e-commerce platforms, and ride-hailing platforms, may all be regulated under the DPD.

The DPD is also written to be extra-territorial. An offshore platform would be deemed as having an intention to provide services to users in Thailand and be subject to the DPD if it has one of the following characteristics:

1. displaying its platform in the Thai language (whether in whole or in part);
2. having its domain registered ".th", ".ไทย", other names which means Thailand, or using a domain name in the Thai language;
3. providing a payment method or option of payment in THB currency;
4. specifying a term to use Thai law as the governing law for transactions relevant to the sale of products or services on the digital platform service, or specifying a Thai court as the choice of forum;
5. paying remuneration to a search for a computer's location service provider to specifically support access to the digital platform service by users in Thailand;
6. having an office, organisation, or personnel to support or assist users in Thailand; or
7. other characteristics as prescribed by the Electronic Transaction Commission.

Platforms regulated by the DPD are required to notify the Electronic Transactions Development Agency ("ETDA") of their business details before commencing their business, or within 90 days from the effective date of the DPD for existing service operators. Apart from this, platforms have several duties, including annual reporting and disclosure of the platform's terms and conditions. Offshore platforms will also be required to appoint a coordinator in Thailand to liaise with ETDA. Failure to comply with the requirements may result in a suspension of business and criminal penalties.

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New Private Placement (PP) Rules for Listed Companies in Thailand

Thailand's Securities and Exchange Commission ("SEC") has amended the rules governing private placements ("PPs") by listed companies which are intended to ease the offering process and provide more procedural efficiency. The new rules are set out in the Notification of the Capital Market Supervisory Board No. TorJor. 28/2565 Re: Approval for Listed Companies to Offer Newly Issued Shares through Private Placement ("TorJor. 28/2565 Notification") which has repealed and replaced the the Notification of the Capital Market Supervisory Board No. TorJor. 72/2558 Re: Approval for Listed Companies to Offer Newly Issued Shares through Private Placement. The TorJor. 28/2565 Notification takes effect for the issuance of PP shares from 1 July 2023.

The key changes and updates in TorJor. 28/2565 Notification include:

1. The new rules eliminate the requirement for SEC approval. The allocation and pricing of PP shares shall be deemed to have obtained SEC approval, provided that the issuer fully complies with its information disclosure and corporate approval requirements.
2. In case the PP is considered to have material events (e.g. PP shares are issued at a price below market price), the issuer is also required to obtain an independent financial advisor's opinion report and propose it to the shareholders’ meeting for consideration.
3. A silent period no longer applies for the remaining shares from the Right Offering ("RO") and Preferential Public Offering ("PPO") to be offered to PP investors, provided that the PP share price is not lower than the offering price of the RO or PPO.
4. The new rules improve the calculation for "market price", provided that the issuer must first use the weighted average price of the shares as a benchmark to fix the market price, except for certain cases where such calculation is not suitable or cannot be calculated. Other benchmarks may be used in the following order: (i) the book building price or (ii) the fair price evaluated by a financial advisor as in the qualified list of SEC.

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Board of Investment Introduces Additional Criteria and Conditions for Granting Land Ownership Rights to Foreign Entities

On June 23, 2023, the Office of the Board of Investment of Thailand ("BOI") issued Announcement No. Por. 10/2566, which outlines the criteria and conditions for granting land ownership rights to foreign entities that have been promoted and intend to establish an office and residential premises for their promoted business. This announcement introduces supplementary criteria and conditions, in addition to those stated in the previous announcement by the Board of Investment of Thailand No. 6/2565.

The following are the significant conditions specified in the Announcement that warrant attention:

1. The foreign entity must maintain a paid-up registered capital of at least 50 million baht throughout the period in which they are permitted to own land for establishing office and residential premises for their promoted business.
2. The land used for executives' or experts' residences must not exceed 100 square meters per family, and each plot must not exceed one rai (approximately 1,600 square meters). The land ownership for this purpose shall not exceed one rai per 50 million baht of paid-up registered capital, with a total limit of 10 rai.
3. The land designated for factory workers' residences must not exceed one rai per 300 people. The land ownership for this purpose shall not exceed one rai per 50 million baht of paid-up capital, with a total limit of 20 rai.
4. If the residence is located separately from the establishment, the owned land intended for residential purposes must be located within a 50-kilometer radius from the promoted establishment along the main public road.
5. In the event of a breach of the conditions stated in the Announcement, BOI will initiate the revocation of the rights and benefits of land ownership. The land must be disposed of within one year from the date of notification from BOI.

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Personal Data Protection Committee Releases Practical Guideline for Data Controllers and Data Processors

On 10 February 2023, Thailand's Personal Data Protection Committee ("PDPC") released a practical guideline for data controllers and data processors, focusing on case studies extracted from consultation issues related to the implementation of the Personal Data Protection Act B.E. 2562 (2019). The purpose of the guideline is to demonstrate the application of the law through real-life examples and scenarios.

We provide below two examples of case studies mentioned in the guideline.

Case Study 1

Is a business operator managing condominiums on behalf of condominium juristic persons considered a data controller which is a small business that would fall under the exemption from the requirement of preparing records of processing activities ("ROPA"), pursuant to the PDPC's Notification on An Exemption from the Recording by the Data Controller which is a Small Business B.E. 2565 (2022) ("PDPC's Notification on ROPA exemption")?

PDPC responded that a condominium juristic person whose objective is to manage and maintain common property, without providing goods or services to non-owners or non-residents, would be considered a data controller which is a non-profit organisation and shall be exempted from the preparation of ROPA pursuant to PDPC's Notification on ROPA exemption.

However, the condominium management company has the operational objective of sharing profits, thus, it would not be considered a non-profit organisation. In addition, as the company processes personal data under the instructions or on behalf of the condominium juristic person who acts as a data controller, the company would be regarded as a data processor who has a duty to prepare and maintain a ROPA according to PDPC's Notification on Rules and Methods in Preparing and Maintaining Records of Personal Data Processing Activities for the Data Processor B.E. 2565 (2022).

Case Study 2

Does a bank need to obtain consent from customers who are minors if the bank wishes to introduce a new product to them for marketing purposes? Can the minors give consent alone?

PDPC issued an opinion that if personal data is used for marketing purposes and is not related or necessary for compliance with a contract, and other legal bases were not applicable, the bank should obtain consent from the minors. In addition, taking into consideration the age of minors, their maturity level and the impact of their decision, consent for marketing purposes should also be obtained from the holder of parental responsibility over the minors.

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