In brief: media law and regulation in Thailand

Media

Summarise the regulatory framework for the media sector in your jurisdiction.

The Broadcasting and Television Business Act 2008 regulates the media sector in the following ways:

• licensing requirements: certain types of business (specifically, operating public services or community services) are reserved for government entities and non-profit organisations. Services intended for generating profit are available for operation by the private sector, subject to licensing requirements from 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 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: the licensee is prohibited from being a stakeholder of another company in the same category of business and from cross-holding a business in sound broadcasting and television using a frequency spectrum over the proportions authorised by the NBTC;
• TV programmes: TV operators shall comply with the must-carry and must-have rules issued in the NBTC’s notifications. Under must-carry rules, free-to-air TV operators are responsible for expenses they incur in providing public broadcasting services. Under must-have rules, free-to-air TV operators must broadcast seven TV programmes, namely:
• the SEA Games;
• ASEAN 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 such must-have programmes);
• promotion and control of the professional ethics of licensees, programme producers and mass media professionals: such licensees, programme producers, and mass media professionals have a duty to set ethical standards for the profession and shall apply such standards to self-regulate the industry; and
• construction of, use and connection to broadcasting network: the NBTC must approve the construction of an entire network. Further, a network owner shall allow licensees to utilise their network per the criteria and procedures prescribed by the NBTC.

In addition to the Broadcasting and Television Business Act 2008, the Film and Video Act 2008 regulates the content of films, videos and their advertising media. A censorship committee of officials will review, approve or censor the content of films, videos and their advertisements and approve other activities relating to film and video, such as the production or distribution of foreign films in Thailand.

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

The Foreign Business Act 1999 regulates all businesses in which a majority of the shareholders are non-Thai. Foreign businesses are required to obtain a licence from the Ministry of Commerce before operating in Thailand. The Act generally applies to all business sectors.

Foreign media businesses are subject to foreign ownership restrictions. If there is a conflict between sectoral rules and general rules, the rules applying a stricter standard will prevail.

The Broadcasting and Television Business Act 2008 imposes foreign ownership restrictions according to the type of broadcasting licence (eg, radio, TV, etc) as follows:

• a 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;
• a 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; and
• 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 per cent. The foreign ownership restriction under this sector-specific law applies to the general Foreign Business Act; thus, the holder of such licence may only have up to 25 per cent of its shares held by non-Thai shareholders.

A licensed operator that intends to merge with another licensed operator shall submit a request for permission from the NBTC at least 60 days before the execution of such transaction under the following circumstances:

• register an official corporate registration for a merger that will result in either a licensed operator being dissolved (or a merger that will result in both licensed operators being dissolved and a new legal entity being established);
• enter into a share acquisition agreement wherein a licensed operator acquires all or part of assets of another licensed operator; or
• enter into a share acquisition agreement by which a licensed operator acquires all or part of the shares of another licensed operator to manage, direct or control such licensed operator. Cross-shareholding between two licensed operators requires the prior approval of the NBTC at least 60 days before executing such a transaction.

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

An applicant must be of Thai nationality, shall not be on a probationary period restricting the applicant from using the licence and cannot have yet exceeded three years of a licence withdrawal period. The approval process usually takes up to 60 days after submitting all the necessary documents. If approved, the applicant will be granted the right to operate under the express terms of the granted licence. In addition, a broadcasting schedule may be allocated to other licensed broadcasters under the condition that the broadcaster complies with the rules and regulations prescribed by the Broadcasting and Television Committee.

There are three types of licences for this kind of operation:

• a licence to operate public services;
• a licence to operate community services; and
• a licence to operate business services.

A licence to operate public services (where the main objective is to provide public services) is only available to government entities and specific associations, charities, foundations and educational institutions, and not private-sector operators. A 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) is 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 per cent. The foreign ownership restriction under this sector-specific law applies to the general Foreign Business Act; thus, the holder of such licence may only have up to 25 per cent of its shares held by non-Thai shareholders. In addition to those ownership restrictions, if the operation is executed at regional and local levels, then the applicant shall have at least one-third of the equity and have stable financial status as determined by the NBTC and any other qualifications that can guarantee the stability of operations. Additionally, the applicant shall be a state enterprise or a company established under Thai law. The same criteria apply to licences regarding Sound Broadcasting Businesses or Television Businesses that do not utilise a frequency spectrum.

The Broadcasting and Television Committee will grant a seven-year term for sound broadcasting licensees and a five-year term for television broadcasting licensees. Licences may be renewed 90 days before expiry. Meanwhile, the licensees are obliged to pay annual fees for their respective licences.

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

Thailand does not have regulations concerning broadcasting foreign-produced programmes or the proportionality between foreign and local content. Nonetheless, licensees of sound broadcasting or television businesses using a frequency spectrum are required to broadcast programmes composed of news or content that is useful to the public as determined by the NBTC, as well as other required programmes at certain specific times, such as the national anthem at 8am and 6pm. Additionally, the NBTC may implement additional measures for the benefit of the disabled or underprivileged.

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

According to the Broadcasting and Television Business Act 2008, an advertisement publicised through sound broadcasting or television using a frequency spectrum shall not exceed 12-and-a-half minutes per hour, and the total runtime of advertisements for a whole day shall not exceed an average of 10 minutes per hour.

Advertisements publicised on a non-frequency use spectrum may not exceed six minutes per hour, and the total amount of time for advertisements in a single day shall not exceed an average of five minutes per

hour. Time limits do not restrict online advertisements. However, an operator must ensure that the duration of an advertisement does not affect consumers under the Consumer Protection Act 1979.

The content of advertisements is governed by regulations relevant to the purpose of the advertisement. For example, a cosmetics advertisement would be governed by the Cosmetic Product Act 2015.

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

Licensed broadcasters must follow the requirements set out by the NBTC regulations, including requirements relating to show ratio, show categorisation, time allocation of the TV show to be broadcast, and the management of advertisements. Broadcasters are categorised into two main types:

• broadcasters that use TV broadcast frequencies; and
• broadcasters that do not use TV broadcast frequencies.

Licensed broadcasters are further categorised into types according to the primary purpose of their broadcasting. Each type of broadcasting must include at least the following show ratios:

• public service broadcaster: 70 per cent of the shows must be for the benefit of the public, such as news reports, knowledge-related shows or documentaries;
• local service broadcaster: 70 per cent of the shows must be for the benefit of a specific local jurisdiction, such as within one district or province, and must have at least 50 per cent of the shows produced by the producers from such local jurisdiction; and
• business-oriented broadcaster: 25 per cent of the shows must be for the benefit of the public, such as news reports, knowledge-related shows or documentaries. A business-oriented broadcaster at the provincial level must have self-produced shows account for at least 50 per cent of the total shows.

Types of TV shows can be divided into six categories, and licensed broadcasters must self-rate shows and allocate shows to the proper time slot as set out by the NBTC regulations, as follows:

• Category Por is for children, produced for an audience aged of between three and five years old;
• Category Dor is for children, produced for an audience aged between six and 12 years old;
• Category Tor is a general TV show, for audiences of all ages;
• Category Nor 13 is suitable for an audience whose age is more than 13 years old and must be broadcast between 8.30pm and 5am only;
• Category Nor 18 is suitable for an audience whose age is more than 18 years old, and must be broadcast between 10pm and 5am only; and
• Category Chor is suitable for adults only and must be broadcast between midnight and 5am only.

In addition, broadcasters that use TV broadcast frequencies must allocate at least 60 minutes between 4pm and 6pm on Monday to Friday and 7am and 9am during the weekends for shows to develop and benefit children. In addition, licensed broadcasters must broadcast the Thai national anthem twice a day – at 8am and 6pm – and they must broadcast the Royal Family’s news every day from 7pm to 8.30pm.

Licensed broadcasters must submit to the NBTC overall broadcast schedules, show ratio, and plans of TV shows, including the categorisation and time allocation of the show using the application form provided by the NBTC at least 15 days before the initial operation. After the first year, licensed broadcasters must submit their planned broadcast schedule with the aforementioned information at least once a year to the NBTC for its approval at least 15 days before the broadcasting. If the NBTC finds that the broadcaster is not following the regulations concerning its categorisation and time allocation, then the NBTC shall issue a warning letter asking the broadcaster to revise the schedules and plans of its TV shows before broadcasting. Any change to the approved schedules and plans must be submitted to the NBTC at least seven days before broadcasting. There is no mechanism for financing the costs of the abovementioned obligations.

Broadcasting licensees must broadcast news and warnings to the public in a disaster or emergency case as prescribed by the NBTC. Programmes affecting state security, disrupting public order, containing revolutionary material concerning the overthrow of the government or containing obscenities that are against community standards are prohibited. Licensees are obligated to examine and suspend the broadcasting of programmes that have the aforementioned characteristics.

Is new media content and its delivery regulated differently from traditional broadcast media? How?

New media is relatively recent and is not as rigidly regulated as traditional broadcast media. However, the government is currently considering policies to regulate new media content.

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

In 2012, the NBTC promulgated the First Broadcasting Master Plan (2012–2016) (the Plan), delineating that the transition to digital broadcasting transmission falls into one of seven main categories subject to regulation. The Plan established transition policies and planned to switch to digital television broadcasting within one year and switch to digital audio broadcasting transmission within two years. Commencement of digital audio broadcasting and television broadcasting was anticipated at that time to begin within four years. The authorisation to use frequency for digital television services will be granted by auction, while other categories (such as community or public services) will be granted at the discretion of the NBTC.

Policies and plans to switch over from analogue to digital television broadcasting have been completed within the expected period, which was 2015. Currently, digital television is being widely broadcasted in Thailand. In addition, Digital audio broadcasting (at frequency spectrum 174–230 megahertz) is now being tested in several provinces throughout Thailand per the policies and plans issued by the NBTC.

Does regulation restrict how broadcasters can use their spectrum?

No measures restrict how broadcasters can use their spectrum, except a licensee is obligated to comply with the rules and regulations of the respective licence they have been granted.

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

To evaluate the efficiency of market competition, the Herfindahl-Hirschman Index (HHI) is applied to assess market concentration. The assessment will result in the squared total market share for each licensee. If the value of HHI reflects that market concentration is high, then that will be taken by the NBTC to mean that market competition is inefficient. The NBTC may then roll out specific precautionary measures to prevent any licensee with significant market power from monopolising, restricting, hindering competition or misusing market power. If precautionary measures are imposed on a licensee with dominant market power, such licensee may object, and the NBTC may hold a public hearing on the objection. Likewise, measures set forth by the NBTC are subject to adjustments at its discretion.

Provide a summary of key emerging trends and hot topics in media regulation in your country.

A proposal known as over-the-top services (OTT) is also under review by the NBTC. Under this proposal, the scope of what constitutes broadcasting will be determined. Recently, OTT operators were informed that they had to register themselves with the NBTC and that they would be governed by specific rules and regulations regardless of nationality; however, the attempt was heavily criticised by the public and OTT operators as well as by technology-related NGOs, and the NBTC consequently withdrew its requests to OTT operators. No further updates have been issued regarding this matter since such withdrawal by the NBTC.

In addition to licensing requirements, foreign operators may be required to have a local office and an authorised executive in Thailand for tax purposes. Further, the telecommunications business is subject to excise tax in addition to corporate income tax. As a result, an excise tax is imposed on telecommunications operators. Under the current applicable Ministerial Regulation, as published on 16 September 2017, the excise tax rate for the telecommunications business is zero per cent.