1 Legal and enforcement framework
1.1 Which legislative and regulatory provisions govern the following in your jurisdiction: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?
(a) Telecommunications
The legislation that governs the telecommunications sector includes:
- the Organisation to Assign Radio Frequency and to Regulate Broadcasting and Telecommunications Services Act BE 2553 (2010) (‘NBTC Act'); and
- the Telecommunications Business Act BE 2544 (2001) (TBA).
(b) Internet
The legislation that governs the internet sector includes:
- the NBTC Act; and
- the TBA.
(c) Media
The legislation that governs the internet sector includes:
- the NBTC Act; and
- the Broadcasting and Television Business Act BE 2551 (2008) (BTA).
(d) Social media
There are no specific laws and regulations prescribed by the National Broadcasting and Telecommunications Commission (NBTC) in this regard. However, in case of the use, disclosure and/or collection of data, the Personal Data Protection Act BE 2562 (2019) (PDPA) will also apply. In addition, the Computer-Related Crime Act BE 2560 (2017) (CCA) sets out regulations relating to computer and/or electronic based crimes, including hacking, phishing and illegal electronic-based content.
1.2 Which bodies are responsible for enforcing the applicable laws and regulations in the relevant sectors? What powers do they have?
Telecommunications: The NBTC Act establishes the NBTC as the independent broadcasting and telecommunications business regulator. The NBTC monitors telecommunications and internet business compliance in accordance with the TBA. The TBA applies to operators of all telecommunications and internet services. Media business is also regulated by the NBTC in accordance with the BTA.
According to the NBTC Act, the NBTC has the following powers:
- to allocate frequencies between the television business, the radio communication business and the telecommunications business;
- to define the nature and types of broadcasting business, television business and telecommunications business;
- to handle licensing and govern the utilisation of frequency and radiocommunication equipment in the operation of the broadcasting business, the television business and the telecommunications business, and to prescribe rules and procedures for licensing and the conditions of and fees for such licensing;
- to handle licensing and govern the operation of the broadcasting business, the television business and the telecommunications business, to ensure that users receive a high-quality, efficient, fast, proper and fair service;
- to set a fair fee structure and service charge rate structure in the broadcasting business, the television business and the telecommunications business for users and service providers under the main concern of public interest;
- to set standards and the desired technical specifications for operators in the broadcasting business, the television business and the telecommunications business;
- to monitor and advise on the operation of the broadcasting business, the television business and the telecommunications business; and
- to issue rules and regulations governing the broadcasting business, the television business and the telecommunications business.
Personal data protection laws: In case of a personal data-related issue (eg, a personal data breach), the Personal Data Protection Committee (PDPC) is the responsible regulator. The PDPC is tasked with ensuring that data controllers and data processors comply with the PDPA. The PDPC also has the power to issue:
- supplemental regulations (eg, notification, rules) to implement the PDPA; and
- measures or guidelines in relation to the protection of personal data to facilitate compliance with the PDPA.
The PDPC also has the following powers:
- to request documents or information relating to data protection under the PDPA, including the power to issue a summons to a relevant individual to provide the required information;
- to file a complaint with the competent court to issue an order granting permission to the competent officer to enter the premises of a data controller or any person involved in an offence in order to investigate, ascertain the facts and seize documents, evidence or any other item relating to the offence;
- to order data controllers and data processors to comply with their obligations under the PDPA within a specified period; and
- to prohibit data controllers and data processors from performing any activity that may cause damage to a data subject within a specified period.
Computer/electronic-based crimes: According to the CCA, the regulator with responsibility for enforcing the CCA is the Ministry of Digital Economy and Society (MDES). The CCA empowers officials appointed by MDES to request, access or investigate computer systems, computer traffic data relating to communications, computer data and user data that may relate to a crime. Such officials may also:
- order a service provider or any person that possesses or controls computer data or computer data storage devices to deliver such data or device to MDES; and
- seize the computer systems of such persons where these are deemed necessary for an investigation under the CCA, subject to court order.
1.3 What is the general approach of those bodies in regulating the relevant sectors?
The general approach of the regulators is reactive. In the event of technological advances and the emergence of new products and/or services, or new types of crimes, the regulators will issue notifications or rules to update the regulations in the relevant sectors.
1.4 What other industry codes of conduct or best practices are applicable in the relevant sectors?
In the telecommunications and media sector, a Journalism Code of Ethics – which is compliant with the PDPA – exempts journalists from the obligation not to collect or disclose personal data.
2 Ownership
2.1 Who is eligible to provide services in the following sectors in your jurisdiction? Are there any restrictions on foreign ownership? Do any domicile requirements apply? What other requirements or restrictions apply in this regard: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?
The Foreign Business Act BE 2542 (1999) (FBA) regulates businesses in which the majority of stakeholders are non-Thai (ie, foreign business operators). Foreign businesses must obtain a foreign business licence from the Ministry of Commerce before operating in Thailand. A foreign business licence is separate from a telecommunications licence and generally applies to all business sectors. Foreign telecommunications and media businesses are subject to sector-specific rules on foreign ownership. In case of a conflict between a provision of the sectoral rules and the general rules, the rules that impose a stricter standard will apply.
(a) Telecommunications
The TBA imposes various foreign ownership restrictions in relation to telecommunications licences as follows:
- Type 1 licence: No ownership restrictions apply – thus, foreign operators with a Type 1 licence are subject to the FBA and a foreign business licence is required.
- Type 2 licence: Foreign ownership is limited to 49% of the total shares – thus, a Type 2 licence holder may only have up to 49% of its shares held by non-Thai shareholders.
- Type 3 licence: The restrictions on Type 3 licence holders are the same as those for Type 2 licence holders.
(b) Internet
Internet service providers (ISPs) must be legal persons established under Thai law which have not previously had a licence revoked for cause. Recently, all ISP licences were revoked and replaced with telecommunications licences. In other words, all ISP licences have now been consolidated into telecommunications licences.
The ownership restrictions applicable to ISPs are identical to those applicable to telecommunications operators as outlined above.
(c) Media
The Broadcasting and Television Business Act imposes foreign ownership restrictions depending on the type of broadcasting licence (eg, radio, television) as follows:
- Licence to operate public services (where the main objective is to provide public services): This licence is only available to government entities and specific associations, charities, foundations and educational institutions, and not to private sector operators.
- Licence to operate community services (where the objective of the business is to provide a public service that meets the needs of the community or locality receiving the services): This licence is only available to government entities and specific associations, charities, foundations and educational institutions, and not to private sector operators.
- Licence to operate business services (where the main objective is to generate profit): These licences are subdivided into three classes – national, regional and local. Foreign ownership is limited to 25%. The foreign ownership restriction under this sector-specific law takes precedence over the general Foreign Business Act; thus, the holder of such licence may only have up to 25% of its shares held by non-Thai shareholders.
(d) Social media
There are no specific laws and regulations on foreign ownership in social media businesses in Thailand. Thus, a business in which the majority of shareholders are non-Thai (ie, a foreign business operator) must obtain a foreign business licence from the Ministry of Commerce prior to commencing operations in Thailand.
3 Authorisations/licences
3.1 What authorisations and/or licences are required to operate in the following sectors? Do any exemptions apply? Do these vary depending on the service to be provided: (a) Telecommunications; (b) Internet; (c) Media and Social media?
(a) Telecommunications
According to the Telecommunications Business Act (TBA), there are three types of telecommunications licences, as follows:
- Type 1 licence: For telecommunication business operators that provide telecommunications services without operating a telecommunications network. The main characteristic of this licence is that the holders provide services under the basis of liberalisation.
- Type 2 licence: For operators that provide services to a specific group of customers with or without operating a telecommunications network.
- Type 3 licence: For operators that operate a network providing services to the general public.
There are no exemptions that allow telecommunications business operators to operate a telecommunications business without a licence.
(b) Internet
Internet service provider licences have been revoked and consolidated into telecommunications licences. Thus, all requirements regarding telecommunications licences will apply.
(c) Media
According to the Broadcasting and Television Business Act, there are three types of broadcasting licences, as follows:
- Licence to operate public services (where the main objective is to provide public services): This licence is only available to government entities and specific associations, charities, foundations and educational institutions, and not to private-sector operators.
- Licence to operate community services (where the objective of the business is to provide a public service that meets the needs of the community or locality receiving the services): This licence is only available to government entities and specific associations, charities, foundations and educational institutions, and not to private-sector operators.
- Licence to operate business services (where the main objective is to generate profit): These licences are subdivided into three classes – national, regional and local.
There are no exemptions that allow broadcasting operators to operate a broadcasting business without a licence.
(d) Social media
There is no specific licence required to operate a social media business.
3.2 What are the key features of such authorisations/licences?
The key features of telecommunications and media licences are as follows.
(a) Telecommunications
As mentioned in question 3.1, each type of communications licence has its own characteristics based on the functions and services of the operator's business. A Type 1 licence can be acquired by both Thai and foreign operators, while the other types of licences can be acquired by Thai national operators only. In addition, certain types of telecommunications devices require certification prior to usage, sale or import, as per the National Broadcasting and Telecommunications Commission's (NBTC) standards. In this regard, a list of certified telecommunications devices published by the NBTC can be found on the NBTC's website.
(b) Media
The different types of media licences have different characteristics; however, in all cases such licences are reserved to Thai entities only.
3.3 What are the procedural and documentary requirements to obtain such authorisations/licences?
There are three categories of telecommunications licences: Type 1, Type 2 and Type 3.
The different categories of licences cover various services as indicated in the operator's licence application. The applicant must be a legal person established under Thai law and must not be a bankrupt or a party which has previously had a telecommunications licence revoked. In addition, technical and commercial information relating to the business operations of the applicant – including the network structure, financial investment plan, marketing plan, service details and equipment details – must be provided to the NBTC for its consideration.
The requirements applicable to licensed media operators are as follows:
- General qualifications: An applicant:
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- must be of Thai nationality;
- must not be on a probationary period restricting it from using the licence; and
- must not have exceeded three years of a licence withdrawal period.
- In addition, a broadcasting schedule may be allocated to other licensed broadcasters on condition that the broadcaster complies with the rules and regulations prescribed by the NBTC.
- Sound broadcasting business or television business using a frequency spectrum: There are three types of licences for such activities:
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- a licence to operate public services;
- a licence to operate community services; and
- a licence to operate business services.
- Licences to operate public services (where the main objective is to provide public services) and licences to operate community services (where the objective of the business is to provide a public service that meets the needs of the community or locality receiving the services) are only available to government entities and specific associations, charities, foundations and educational institutions, and not to private-sector operators.
Licences to operate business services (where the main objective is to generate profit) are subdivided into three classes: national, regional and local. Foreign ownership is limited to 25%. The foreign ownership restrictions under this sector-specific law apply in addition to the general Foreign Business Act; thus, the holder of such a licence may only have up to 25% of its shares held by non-Thai shareholders. In addition, if the operation is executed at the regional and local levels, the applicant must:
- hold at least one-third of the equity; and
- have stable financial status as determined by the NBTC and any other qualifications that guarantee the stability of operations.
Additionally, the applicant must be a state enterprise or a company established under Thai law. The same criteria apply to licences for sound broadcasting businesses and television businesses that do not utilise a frequency spectrum.
3.4 What does the authorisation/licensing process involve? How long does it typically take? What costs are incurred?
The approval of all types of licences usually takes approximately 60 to 90 days after all necessary documents and information have been submitted to the regulators. If approved, the applicant will be granted the right to operate strictly under the express terms of the licence. Licensees must pay annual fees for their respective licences.
3.5 What are the ongoing rights and obligations of the authorisation/licence holder? How is compliance monitored? What penalties may be imposed for breach?
After approval of the licence, the licensee is subject to several obligations under the Organisation to Assign Radio Frequency and to Regulate Broadcasting and Telecommunications Services Act as follows:
- The licensee must prepare a financial status report for the NBTC demonstrating true and correct revenues and expenses in accordance with the criteria prescribed in the notification by the NBTC.
- The broadcasting of the following is prohibited:
-
- programmes aimed at inducing people to overthrow the government with the king as head of state;
- programmes that may have an impact on state security, public order or good morals; and
- programmes of an obscene nature or that may cause a serious deterioration in the minds or health of the people.
- In the case of any change to the network which affects the use of or connection to the network, the network owner must inform the licensees that use or connect to its network. If the change has an impact on service users, the network owner must give notice of the change at least six months in advance.
- A telecommunications business licensee or network owner must transmit or broadcast public news or programmes of the nature of a sound broadcasting business operation or television business operation to other persons that are not licensees.
- A licensee must contribute to the Broadcasting, Television and Telecommunications Development for Public Benefits Fund annually at the rate prescribed by notification of the NBTC.
These obligations are monitored by the NBTC. If a licensee fails to comply with the regulations, it may incur administrative fines and criminal penalties.
3.6 For how long is the authorisation/licence valid? Are variations to the terms possible? How is the authorisation/licence renewed?
The NBTC will grant a seven-year term for radio frequency usage licensees and a five-year term for television broadcasting licensees. Licences may be renewed 90 days before expiry. Licensees must pay annual fees for their respective licences. Telecommunications licences may last from five to 25 years depending on the type of licence and the services provided.
3.7 Can an authorisation/licence be transferred? If so, what is the process for doing so?
A licence for sound broadcasting services or television services is the exclusive preserve of the licensee and in principle cannot be transferred. However, a licence can be transferred with the authorisation of the NBTC and upon payment of the transfer fees. In order to transfer a licence, the transferor must file a request form which contains details of the following, among other things:
- the transferor and transferee companies;
- the need for and suitability of the transfer;
- the transfer contract or agreement;
- the business plan; and
- a preliminary analysis report on the potential impact on the market.
In addition, the transferor must pay a fee of THB 500,000. Telecommunications licences and foreign business licences cannot be transferred.
Once all necessary documents have been submitted, the NBTC usually takes no more than 60 days to consider the approval. The NBTC may also request any essential documents regarding the transfer request.
4 Telecommunications
4.1 What provisions apply to the construction of telecommunications infrastructure and the installation of facilities on public and private property?
The Telecommunications Business Act applies to the construction of telecommunications infrastructure and the installation of telecommunications facilities. Under the TBA, the licensee must submit a plan to the National Broadcasting and Telecommunications Commission (NBTC) for approval. This plan should indicate the directions and boundary lines of pillars, electric lines, tubes and other necessary equipment.
4.2 Do any universal service obligations apply in your jurisdiction? If so, what are they and how are they funded?
Universal service obligations (USOs) apply in Thailand. The USOs require service providers to provide certain telecommunications services to:
- rural areas;
- educational institutions;
- social assistance agencies; and
- underprivileged citizens.
These services are funded by income allocated by the licensees through USO fees, which licensees must pay annually to the Broadcasting, Television and Telecommunications Development for Public Benefits Fund.
The USOs must not present an undue financial burden for, or cause discrimination among, service providers. The NBTC must notify a service provider of its USOs before the submission of a licence application. The current USO fee policies issued by the NBTC charge licensees at a rate of 2.5% of the net income from telecommunications services, plus 7% value-added tax.
4.3 How is interconnection regulated in your jurisdiction? What rules and requirements apply in this regard? Are interconnection and network access charges subject to price regulation?
A network owner must allow licensees to use or connect to its network in accordance with the criteria and procedures prescribed in the NBTC Notification re Telecommunications Access and Interconnection BE 2556 (2013). The applicant must comply with the requirements for interconnection – for example, it must not:
- be bankrupt;
- be incapable of acting as an executive according to the regulations of the Stock Exchange of Thailand; or
- have been convicted of a criminal offence under the laws relating to telecommunications, competition, news and information, intellectual property, drug abuse, money laundering, anti-corruption, offering sales to government and government official abuse in the previous two years.
A network owner may refuse use of or connection to its network only in the
following cases:
- The existing network is inadequate for the proposed use or connection by the licensee;
- The use of or connection to the network may affect state security; or
- The use of or connection to the network may cause a disturbance or present an obstacle to the sound broadcasting business or television business of the network owner or other service users of the network.
The agreement on use of or connection to a network must reflect the following characteristics:
- It must not discriminate against or hinder other licensees;
- The technical specifications at the end-use points or at the point of connection to the network must be clear and technically feasible, and must not be unduly burdensome for the licensee that is seeking to use or connect to the network;
- The duties and responsibilities of the licensee that is seeking to use or connect to the network and the network owner must be clearly established;
- The compensation charged for use of or connection to the network must be reasonable and fair for the network owner and the licensee that is seeking to use or connect to the network, and must be charged equally to all licensees; and
- The network owner must disclose the agreement for use of or connection to the network, including the compensation charged.
4.4 What rules and requirements govern the allocation and use of telephone numbers in your jurisdiction?
The NBTC is responsible for allocating numbers used for services or service areas under the rules and regulations on the following:
- the use of international access numbers with service codes;
- telecommunications numbering allocation;
- the telecommunications numbering plan;
- criteria for the assignment and permission of unique telecommunications numbers; and
- criteria for the allocation and administration of telecommunications numbers.
4.5 What rules and requirements govern number portability in your jurisdiction?
The NBTC prescribes that:
- service users are legally entitled to mobile number portability; and
- service providers are prohibited from acting in any manner that obstructs or impedes the porting of mobile numbers to other service providers.
4.6 Are retail customer charges subject to price regulation in your jurisdiction?
The NBTC issues notifications regulating the fees charged for telecommunications services. A telecommunications business operator that wishes to charge more than the maximum rate determined by the NBTC must submit a request to the NBTC for approval.
4.7 Are retail customer terms and conditions subject to regulation in your jurisdiction?
The Thai telecommunications legislation imposes tariffs, service charges and specific consumer protections on telecommunications business operators. In addition, contracts with consumers for mobile phone services are subject to governance by the relevant regulations and consumer protection laws.
5 Spectrum use
5.1 How is spectrum use authorised in your jurisdiction? Do any exemptions apply?
According to the Frequency Allocation Act BE 2553 (2010) (FAA), as amended, a licensee must not use the spectrum for a purpose which differs from that granted under the licence. The authority may revoke a licence if the licensee fails to comply with the terms of the licence on the use of spectrum.
5.2 What is the procedure for allocating spectrum in your jurisdiction?
Under the FAA, the National Broadcasting and Telecommunications Commission (NBTC) will hold an auction for the commercial usage of spectrum for broadcasting. The requirements and qualifications of the applicants and the conditions of the auction are specified in the Notification of the NBTC on the Criteria, Procedures and Conditions for Auction of FM Radio Frequencies for Business Operations. Specifically, the participants in the auction will be telecommunications business operators which are qualified to participate and are not prohibited from participation under the notification. After completion of the auction, the winning bidder must pay the amount stated in its bid to the NBTC as a licence fee within 30 days of receipt of the letter from the NBTC informing it of the win. Upon payment of the licensing fee, the winning bidder is granted permission to use the spectrum and must provide additional information relating to broadcasting facilities to the NBTC.
5.3 How long does it typically take? What costs are involved?
Pursuant to the Notification of the NBTC on the Criteria, Procedures and Conditions for Auction of FM Radio Frequencies for Business Operations, there are two costs involved when acquiring a spectrum licence, as follows:
- Application fee: Telecommunications operators that participate in the auction to acquire a spectrum licence must pay an application fee of between THB 250 and THB 10,000, depending on the type of licence sought.
- Licence fee: The telecommunications operator that wins the auction must pay the amount stated in its winning bid as a licence fee to the NBTC.
With regard to the timeframe for acquiring a spectrum licence, the NBTC is entitled to stipulate a timeframe, at its discretion, within which telecommunications operators must apply to participate in the auction. Upon completion of the auction, the NBTC will deliver notice to the winning bidder, which must pay the licence fee within 30 days of receipt of such notice. As mentioned in question 5.2, the winning bidder must also provide additional information to the NBTC; the process generally takes between 60 and 120 working days. Ultimately, if the NBTC finds that the information is correct and complete, it will issue a licence to the winning bidder.
5.4 What are the penalties for unauthorised spectrum use or breach of authorisation?
Anyone that uses spectrum without authorisation will be subject to penalties of:
- up to five years' imprisonment; and/or
- a fine of up to THB 5 million, along with a daily fine of up to THB 50,000 until the violation ceases.
Anyone that is in breach of authorisation will be subject to penalties of:
- up to three years' imprisonment; and/or
- a fine of up to THB 3 million and a daily fine of up to THB 30,000 until the violation ceases.
5.5 Can a spectrum authorisation be transferred? If so, what is the process for doing so?
A spectrum use licence is an exclusive right of the licensee. The transfer of the licence, whether in whole or in part, is prohibited. However, a licensee may authorise a third party to rent airtime, subject to the rules and regulations prescribed by the NBTC.
6 Internet
6.1 What provisions apply to high-speed broadband in your jurisdiction? Are there any government incentives to promote broadband penetration?
The law that mainly governs high-speed broadband is the Telecommunications Business Act (TBA). The TBA prescribes that internet operators must apply for a licence, as mentioned in question 2. In addition, the National Broadcasting and Telecommunications Commission (NBTC) has issued:
- the Notification Re Criteria to Bill Advance Payment for High-Speed Broadband Service, which sets forth regulations for internet service providers (ISPs) on billing advance payment to users; and
- the Notification of the NBTC Re Standards of Service Quality for Telecommunications Services, to ensure that the services of ISPs (ie, internet network services and services provided to users) are provided as per the NBTC's standards to protect the benefits of users.
With regard to the promotion of broadband penetration, the government has launched a national campaign called "Net Pracharat" to promote the spread of internet access throughout the country. Specifically, the government has been installing internet access points in remote areas and villages to facilitate access for local people who previously had no internet access. Moreover, the government plans to install internet networks in a number of schools and public hospitals.
6.2 What net neutrality regulations apply in your jurisdiction? Are any exemptions and/or exceptions available?
The NBTC has not yet adopted net neutrality regulations. Although the Notification of the NBTC Re Standards of Service Quality for Telecommunications Services, as mentioned in question 6.1, governs the services of ISPs, it includes no net neutrality requirements.
6.3 Are internet service providers (ISPs) obliged to block or restrict access to specific websites or types of content in your jurisdiction?
Yes. According to the Computer-Related Crime Act (CCA), ISPs must comply with any court order to block access or remove illegal content under the CCA. Further, in order to maintain public order and national security, the government may suspend, block or remove any website or illegal content in certain situations (eg, severe emergency or political unrest).
6.4 Is the use of virtual private networks permitted in your jurisdiction?
Virtual private networks (VPN) are not prohibited under Thai law. However, VPN service providers are subject to the provisions of the CCA.
6.5 In what circumstances will ISPs be held liable for offending content carried on their networks? What defences are available?
Pursuant to the CCA, any service provider that cooperates, agrees or conspires with a person that commits a computer-related crime will be subject to the same penalty as the person that committed the crime. However, such service providers will not be subject to a penalty if they have complied with the Notification of the Ministry of Digital Economy and Society Re Procedures on Notifying and Suspending Publication of Computer Data and Exporting Computer Data from Systems. Under this notification and the CCA, all service providers should:
- have appropriate terms of use that restrict the use of their services for illegal purposes;
- make available a takedown notice form that service users can use to report illegal content or activities; and
- act in accordance with any request or order from the regulators to take down, delete or block access to specific illegal content or activities.
6.6 How are digital platforms regulated in your jurisdiction?
Currently, there is no law that directly regulates digital platforms in Thailand. However, a digital platform service provider is regarded as a service provider under the CCA. Therefore, such service providers must comply with the provisions of the CCA. In addition, if the digital platform involves the collection of personal data, the Personal Data Protection Act (PDPA) will apply to the digital platform service provider, which will be regarded as a data controller under the PDPA. Further, if the digital platform is used specifically for marketing and/or sales purposes, the operator may need to obtain direct sales and direct marketing licences from the Office of Consumer Protection Board.
7 Media
7.1 What rules and requirements apply to public broadcasters in your jurisdiction?
The Broadcasting and Television Business Act (BTA) regulates the media sector in the following ways:
- Licensing requirements: Certain types of business (ie, operating public services and community services) are reserved for government entities and non-profit organisations. Services aimed at generating a profit are available for operation by the private sector, subject to the licensing requirements of the National Broadcasting and Telecommunications Commission (NBTC).
- Use of the frequency spectrum: A licence from the NBTC is required to operate a sound broadcasting business or television business that utilises a frequency spectrum. Licences are limited to the frequency of assignments stipulated by the NBTC.
- Station management: For media businesses, a director (who must be of Thai nationality) will:
-
- supervise and control programming, programme hosting and broadcasting; and
- ensure that the respective station complies with the regulations prescribed by the NBTC.
- Prevention of monopoly: A licensee is prohibited from:
-
- being a stakeholder of another company in the same category of business; or
- having a cross-holding in a sound broadcasting or television business that uses a frequency spectrum authorised by the NBTC.
- TV programmes: TV operators must comply with the ‘must-carry' and ‘must-have' rules set out in the NBTC's notifications. Under the must-carry rules, free-to-air TV operators are responsible for expenses they incur in providing public broadcasting services. Under the must-have rules, free-to-air TV operators must broadcast seven TV programmes, as follows:
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- the Southeast Asian Games;
- the Association of Southeast Asian Nations Para Games;
- the Asian Games;
- the Asian Para Games;
- the Olympic Games;
- the Paralympic Games; and
- the FIFA World Cup final.
Other operators that are not free-to-air TV operators are prohibited from broadcasting these must-have programmes.
- Promotion and control of professional ethics: Licensees, programme producers and mass media professionals have a duty to set ethical standards for the profession and must apply such standards to self-regulate the industry.
- Construction and use of, and connection to, the broadcasting network: The NBTC must approve the construction of an entire network. Furthermore, a network owner must allow licensees to utilise its network as per the criteria and procedures prescribed by the NBTC.
In addition, the BTA and the Film and Video Act BE 2551 (2008) regulate the content of films, videos and their trailers. A censorship committee of officials will:
- review, approve or censor the content of films, videos and their trailers; and
- approve other activities relating to film and video, such as the production or distribution of foreign films in Thailand.
7.2 What rules and requirements apply to commercial broadcasters in. your jurisdiction?
To apply to operate as a commercial broadcaster in Thailand, an applicant must comply with the provisions of the BTA. The applicant must be a legal person established under Thai law and must have the following characteristics:
- An applicant for a commercial broadcasting licence at the regional or local level must:
-
- be a legal person in which at least one-third of the equity shareholders or investors have their domicile in that region or locality; and
- have a stable financial status, an accounting audit system and any other qualifications that can guarantee the stability of its business operations as prescribed by notification of the NBTC.
- An applicant for a licence to operate any other type of business must be a state enterprise or a company established under Thai law which has the main objective of operating a sound broadcasting business or television business.
- An applicant for a commercial broadcasting licence must have Thai nationality and must not be subject to a licence suspension or have previously had a licence revoked in the three years prior to the application.
- The person(s) authorised to bind the applicant must be of Thai nationality, and no director or person authorised to bind the applicant must ever been a director or a person authorised to bind other licensees whose licence was revoked due to his or her performance of management duties in the three years prior to the application.
The applicant for a commercial broadcasting licence must be a legal person in which:
- persons of Thai nationality invest or hold equity shares in the amount of not less than three-quarters of the total capital; and
- under the law or articles of association, or through agreement, persons of Thai nationality have at least three-quarters of the total number of votes entitled to vote in such legal person.
Where the applicant is a company, at least three-quarters of the total number of directors and the director(s) authorised to bind that legal person must be of Thai nationality
If the applicant has the above characteristics, it can apply for a commercial broadcasting licence. To execute the licence, the applicant must:
- file the necessary form with the NBTC; and
- submit the relevant documents (eg, company affidavit, memorandum of association and list of shareholders) for NBTC approval.
7.3 Do any ‘must-carry' obligations apply in your jurisdiction? If so, what are they and how are they funded?
Yes, must-carry obligations apply in Thailand. The NBTC requires that all viewers be able to access free-TV channels equally. Accordingly, all licensed broadcasters must provide full access to free-TV channels for the public interest at the standards of quality required by the NBTC.
All telecommunications licensees must deliver a percentage of their annual income to the Broadcasting and Telecommunications Research and Development Fund for Public Interest. The percentage will depend on the company's annual income, as outlined in the following chart.
Income | Annual delivery rate to the fund |
|
|
7.4 Do any local content requirements apply in your jurisdiction? Do any restrictions apply to foreign content? What exemptions and/or exceptions are available?
Yes, local content requirements apply to local broadcasters in Thailand. Requirements on the broadcasting of the national anthem, local news and news relating to the Thai royal family apply to all local broadcaster licensees. No foreign content restrictions apply under the current laws. Over-the-top operators are not currently regarded as ‘broadcasters' under Thai law and thus are not subject to any local content requirements.
7.5 What other content requirements and restrictions apply in your jurisdiction? Do these vary depending on the distribution channel (eg, traditional broadcast media versus new media)?
In the traditional broadcast media, sound broadcasting businesses and television businesses using frequency spectrum must set up a programme schedule in accordance with the requirements specified by the BTA.
Furthermore, a traditional media operator must set up a programme schedule that is suitable to the objectives of its licensed business operations, in accordance with the criteria prescribed in the notification by the NBTC for each type of licence. In order to protect children and youths, the NBTC may specify in the notification broadcast times for certain categories of programmes. The licensee must present the proposed programme schedule to the NBTC at least 15 days prior to the commencement date of its service provision of the sound broadcasting business or television business.
In the case of a disaster or emergency, or any other incident as prescribed by notification of the NBTC which makes it necessary to broadcast news or a warning to the public, if requested by the government or relevant state agencies, the traditional media must perform as requested.
In addition, operators must further the promotion and protection of the rights of the disabled and underprivileged to access or learn from and utilise sound broadcasting and television programmes in an equal way to able-bodied individuals, including through sound broadcasting services that broadcast a full-time book reading programme for people with disabilities or television services that provides sign language interpretation, a scrolling display or an audio description of public news programmes.
However, new media (eg, social media) need not comply with such requirements under the current laws.
7.6 How is advertising regulated in your jurisdiction? Does this vary depending on the distribution channel?
Advertising in Thailand is regulated by the Office of Consumer Protection Board.
The Consumer Protection Act BE 2522 (1979) defines an ‘advertisement' as something carried in media such as newspapers, print media, broadcast radio, television, mail, telegraph, telephone or signage which is used for advertising purposes. The law regulates all advertising media under the same criteria; these do not vary depending on the distribution channel. Under the current laws, ads must not be in any way untrue or exaggerative, or contain any illegal content.
8 Competition
8.1 What competition-related provisions (eg, structural or functional separation requirements; significant market power requirements; media plurality rules) apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?
(a) Telecommunications
(b) Internet
(c) Media (broadcasting + print)
The Organisation to Assign Radio Frequency and to Regulate Broadcasting and Telecommunications Services Act authorises the National Broadcasting and Telecommunications Commission (NBTC) to notify measures to prevent monopolies and unfair competition. The provisions relate to:
- abuse of dominance by foreign entities;
- significant market power; and
- measures to prevent monopolies and unfair trade in telecommunications and internet businesses, media subscription and mergers and acquisitions.
(d) Social media
The NBTC is not authorised by law to regulate social media businesses. In this sector, the Trade Competition Commission of Thailand (TCCT) is responsible for preventing monopolies and unfair trade.
8.2 To what extent can the national competition regulator intervene in the relevant sectors? What is the interplay between the competition regulator and the various sectoral regulators?
The Trade Competition Commission of Thailand (TCCT) generally regulates antitrust under the Trade Competition Act; the NBTC is authorised to regulate antitrust specifically in the telecommunications, internet and media sectors. Moreover, the Trade Competition Act relinquishes the TCCT of its authority to regulate specific business sectors, including media and telecommunications, which are solely regulated by the NBTC. Currently, there are no specific regulations on social media and thus this field is regulated by the TCCT.
8.3 How are mergers and acquisitions in the relevant sectors treated from a competition perspective?
Mergers and acquisitions are regulated by the NBTC to prevent monopolies and unfair trade in telecommunications, internet and media businesses.
In the case of M&A activity in the TMT sector, an acquiring licensee must file a post-merger notification with the secretary of the NBTC in the 90 days before the merger procedure in order to obtain approval from the NBTC. However, if the licensee can prove the following, it need only file a report with the secretary of the NBTC within seven days of completion of the transaction:
- After the merger, the total assets of the surviving entity will be no more than THB 14,000 million;
- The assets to be received as a result of the merger do not exceed THB 875 million; or
- The annual revenue of the merged entity does not exceed THB 2 billion.
The post-merger notification must set out, among other things:
- the rationale for and suitability of the merger;
- an M&A plan;
- information on the licensee's status;
- information on the market (before and after the merger); and
- analysis of the effect of the merger on competition.
However, the social media sector is not regulated by the NBTC. In order to merge, social media companies must thus comply with the Trade Competition Act BE 2560 (2017). Post-merger notification is required for mergers that may cause a substantial reduction of competition in a particular market. The acquirer or the surviving entities must notify the merger to the TCCT after closing in the case of transactions where:
- the value of sales achieved by any of the merging parties or the value of their combined sales reaches THB 1 billion or more in the relevant market; and
- the transaction does not cause a monopoly or result in a dominant position.
A post-merger notification must be filed within seven days of completion of the transaction.
8.4 What other specific challenges or concerns do the relevant sectors present from a competition perspective?
Currently, there are no significant challenges or concerns regarding the relevant sectors.
9 Data security and cybersecurity
9.1 What data security regimes apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?
The Personal Data Protection Act (PDPA) limits what companies (in the role of data controllers) can do with people's personal data, to the extent that they must:
- inform the data subjects of the purpose of the collection, use or disclosure of their personal data; and
- obtain their consent either in writing or by electronic means.
Such consent must not be obtained fraudulently – for example, by misleading the data subject about how the information will be used. The use or disclosure of personal data in a manner that differs from the purpose to which the data subject initially consented is prohibited unless:
- it is permitted by law; or
- the data controller informs the data subject of the new purpose and obtains their amended consent.
A data subject may withdraw his or her consent at any time, unless restricted by law or any agreement that is beneficial to him or her. If a data controller fails to comply with the provisions of the PDPA, the data subject may request that his or her personal data be deleted, destroyed, suspended or anonymised.
9.2 What cybersecurity regimes apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?
Certain service providers in these sectors may be categorised as critical information infrastructure providers and may thus be subject to the Cybersecurity Act BE 2562 (2019). The Cybersecurity Act was published on 27 May 2019 with the aim of introducing legal safeguards to:
- protect national security in cyberspace, including through a cybersecurity risk assessment plan; and
- prevent and mitigate cybersecurity threats that may affect the stability of national security and the public interest (eg, the economy, healthcare, international relations, government functions).
The TMT sectors are covered by the Cybersecurity Act, as this is intended to protect Thailand's national security systems from cyber-related threats and crime. The Cybersecurity Act broadly defines ‘cyber' as any information or communications from a computer network, a telecommunications network or the Internet. It focuses on the safety of government computer systems and authorises government entities and officers to implement its provisions. A National Cyber Security Committee created under the act will be responsible for all national security matters connected with the government's data and computers.
Cyber threats are categorised into three levels under the Cyber Act as follows:
- Non-critical: Any threat that may negatively impact on the performance of a government computer system.
- Critical: Any threat to a government computer system related to national infrastructure, national security, the economy, healthcare, international relations, the functions of government or similar which may cause damage to or impair a government computer system.
- Crisis: Any threat more significant than a critical-level event, which may have a widespread impact such as:
-
- causing the government to lose control of a computer system; or
- presenting an immediate threat to the public that could lead to mass destruction, terrorism, war or the overthrow of the government.
On 11 December 2021, to help determine the severity of cyber risks, the National Cyber Security Committee issued the Notification of the Cyber Security Committee Re the Types of Cyber Threats and Measures to Prevent, Withstand, Evaluate and Suppress Cyber Threats, 2021, to characterise and assess each cyber threat level based on a variety of parameters. The cyber threat level is determined by analysing situations, repercussions, dangers and trends that may result from cyber threats in various cases, in light of the following variable factors:
- the impact on equipment or the system;
- the impact on data in the system;
- system recovery tendencies; and
- the impact on customers or service users.
All four variables should be evaluated when defining each level of cyber threat. If multiple variables or characteristics of cyber threats are found, the highest level of cyber threat should be used to determine the level of cyber threat. In addition, the operators of critical information infrastructure, in collaboration with the regulators, may consider additional evaluation variables and cyber threat characteristics to provide instructions on how to accurately define the level of cyber threat.
9.3 What other specific challenges or concerns do the relevant sectors present from a data security/cybersecurity perspective?
The PDPA has been in force since June 2022. However, the Personal Data Protection Committee has not yet issued sufficient ancillary laws to provide more clarity and specific details on this legislation. Thus, in practice, certain areas of the data protection laws remain unclear, including matters such as:
- the data representative and its obligations and responsibilities; and
- cross-border data transfers.
10 Trends and predictions
10.1 How would you describe the current TMT industry landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
A proposal relating to ‘over-the-top' (OTT) services is under review by the National Broadcasting and Telecommunications Commission (NBTC). Under this proposal, the scope of what constitutes broadcasting will be redefined. Recently, OTT operators were informed that they had to register with the NBTC and that they would be governed by specific rules and regulations regardless of nationality. However, this move was heavily criticised by the public and OTT operators, as well as by technology-related non-governmental organisations; the NBTC consequently withdrew its request and no further updates have been issued on the matter since.
It is expected that additional ancillary laws relating to the Personal Data Protection Act will be issued in 2023 to provide further clarity on certain subjects, especially cross-border data transfers and data representatives.
11 Tips and traps
11.1 What are your top tips for TMT players seeking to operate in your jurisdiction and what potential sticking points would you highlight?
A telecommunications business operator that wishes to provide telecommunications services in Thailand through its own dedicated network may experience obstacles in applying for a telecommunications licence, given that telecommunications businesses and local networks are reserved for Thai business entities. However, foreign-owned businesses can still operate telecommunications businesses in Thailand without their own network through a Type I telecommunications licence. A foreign-owned entity can buy and resell telecommunications services under a Type I licence by cooperating with a Type 3 local licence holder which has its own network that is suitable for the intended business purpose. Accordingly, although ownership and possession of local networks is not allowed, foreign telecommunications operators can still provide telecommunications services through a Type I licence.
Further, Thailand is one of the biggest users of social media per capita in the world. As there are no specific laws that restrict foreign ownership of social media businesses, foreign operators that wish to provide social media businesses can operate in Thailand simply by applying for a foreign business licence from the Ministry of Commerce. No other specific licence is needed to provide social media services; although specific sales and marketing platforms may need to obtain additional direct sales and direct marketing licences from the Office of Consumer Protection Board.
Additional Author: Onnicha Khongthon
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.