In more detail

Introduction

The first official draft of the DPEA has been released and the first round of comments has closed. However, stakeholders can still provide comments in Thai or English directly to the lawmaker. If enacted substantially in the form as it was published for comments, the DPEA will subject online platforms to additional obligations, potentially increasing compliance costs and restricting how they provide services. In addition, services that are currently not subject to the Royal Decree on the Operation of Digital Platform Services Subject to Prior Notification B.E. 2565 (2022) ("Digital Platform Decree") could fall within the scope of regulation under the DPEA. Once enacted, the DPEA will replace the current Digital Platform Decree. To learn more about the Digital Platform Decree, please see our previous alert here.

Overview

The DPEA has two aims: protecting consumers and promoting fair competition. Inspired by the European Union's Digital Services Act (DSA) and Digital Markets Act (DMA), the DPEA imposes stacking obligations on the different types of digital intermediaries (including mere conduit, caching, hosting, and digital platform services, as well as significant digital platform services). Additionally, for platforms designated as gatekeepers only, it introduces obligations aimed at promoting a more level playing field.

Regulators

The primary regulator under the DPEA will be the Electronic Transactions Development Agency (ETDA), with the Trade Competition Commission of Thailand (TCCT) serving as the primary regulator for provisions relating to gatekeepers. A digital platform economy committee (DPEC) will be established to issue policies, orders and subordinate regulations, particularly for designating the operators of core platform services that meet certain conditions as gatekeepers.

Regulated entities

Digital Intermediaries	Digital Platform	Significant Digital Platform	Gatekeepers
Digital Intermediaries including mere conduit, caching and hosting	Hosting services that match various types of users to facilitate transactions or interactions	Digital Platform Services with local revenues of THB 1 billion or more, or with average monthly users of six million, or being designated as such due to high risk or high impact	Providers of core platform services that control access to services for others

Samples of regulated services include intermediary services, data centers, cloud storage services, web hosting services, web boards, online office program services, online game services, indexing, selection and reference services, online marketplace services, social media services, social networks with chat functions, advertising services, advertising spaces and news services, payment services, escrow services, delivery services, operating systems, and app stores.

Stacking obligations

Stacking obligations apply to digital intermediaries, digital platforms, and significant digital platforms. Below are high-level summaries of the obligations that each type of digital platform service provider could be subject to.

	Digital Intermediaries are required to appoint a local coordinator. Safe harbor is available to digital intermediaries. Where an operator of the digital intermediary service does not actively take part in a wrongdoing committed by another user of the service and/or has taken certain actions (as applicable, including compliance with takedown orders), it will not be deemed to be liable for such wrongdoing.
	Digital Platforms are obligated to notify users of their rights and legal risks and have channels for users to file complaints or notify illegal activities. Transparency-related obligations about advertisements and T&Cs are also imposed on this category of service providers.
	Significant Digital Platforms will face more stringent obligations, both in terms of the number of obligations and the severity. This category, which includes offshore operators, must adhere to business reporting obligations. They are required to track business users who sell goods or provide services via the platform and immediately suspend services to users who violate serious laws or terms of service. In addition, these platforms must comply with security-related obligations, such as maintaining a crisis management plan, conducting system security testing, undergoing external IT audits, and appointing a chief compliance officer. Any substantial changes or amendments to the T&Cs must also be notified to the ETDA in advance, allowing the ETDA and DPEC to order rectifications or suspensions of the changes.

Gatekeepers

The DPEC designates gatekeepers by evaluating whether a core platform service provider (a) significantly impacts the economy and society, (b) serves as an important gateway for business users to reach end-users, and (c) holds an entrenched and durable position. This evaluation includes quantitative presumptions through the assessment of revenues generated from users in Thailand, the number of users and business users, and the number of years that a service has maintained such a number of users. The designation of gatekeepers is to be revisited every three years.

Gatekeepers will be subject to certain ex-ante obligations. For example, cross-platform data use is prohibited unless user consent is obtained. Gatekeepers must not prevent business users from offering goods or services through other intermediaries and are prohibited from discriminatingly displaying their own goods or services over the goods or services of others. While data portability and interoperability-related matters are not listed as obligations in the current Draft, the DPEC could propose that these be imposed as additional obligations on gatekeepers.

Fines

High fines, calculated based on global turnover, are contemplated for violations of the DPEA. The maximum fine is set at 0.3% of the annual global turnover, with daily fines imposed at the same rate.

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