consumer protection regarding online air ticket …

CONSUMER PROTECTION REGARDING ONLINE AIR

TICKET BOOKING

BY

MISS WORRAPAN JANTARAMARD

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF

THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS

IN BUSINESS LAWS (ENGLISH PROGRAM)

FACULTY OF LAW

THAMMASAT UNIVERSITY

ACADEMIC YEAR 2014

COPYRIGHT OF THAMMASAT UNIVERSITY


TICKET BOOKING

BY

MISS WORRAPAN JANTARAMARD

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS

IN BUSINESS LAWS (ENGLISH PROGRAM)

FACULTY OF LAW

THAMMASAT UNIVERSITY

ACADEMIC YEAR 2014

COPYRIGHT OF THAMMASAT UNIVERSITY

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Thesis Title CONSUMER PROTECTION REGARDING

ONLINE AIR TICKET BOOKING

Author Miss Worrapan Jantaramard

Degree Master of Laws

Major Field/Faculty/University Business Law Program (English Program)

Faculty of Law

Thammasat University

Thesis Advisor Khemapoom Bhumithavara, Doctorat

d’Université

Academic Years 2014

ABSTRACT

At the present time, tourism industry is an industry which is enlarged and

plays a key role in Thailand’s economic and social system. In addition, it is also a

significant income source acquiring foreign currencies as well as it us conducive to

the development of transportation infrastructure including trading and investment.

According to above reasons; at the present, Thai Government launched the National

Tourism Development Plan B.E. 2555-2559 in order to revive and invigorate tourism

section as well as to speed up the potentiality to increase national income, distribute

income and sustainable development coexistingly.

Aviation business is nearly the first one among tourism businesses which

an electronic system is applied. The electronic system almost totally changes both

form and method of business operation including but not limited to providing service

information, marketing communication which satisfies the traveler. In accordance

with the characteristic of the electronic system, it is the network globally connected

which makes entrepreneur and traveler communicates conveniently even though they

live in different hemisphere. The electronic system is deprived of limitation of time

zone and place. These make operators of air transportation business begin to establish

online reservation channel not only operates directly through their official website

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(Direct Booking Channels) but the electronic air ticket booking is also conducted by

agencies’ websites (Intermediary Channels).

Due to the air transportation becomes popular and as a result of using

electronic system for online air tick booking is substantially convenient and low cost,

the number of online air ticket operators is significantly increased and the business

situation is very competitive. Moreover, this online channel also increases customer in

the future who is an internet user; in the other word, any traveler who is interested in

travelling by an aircraft could surf information on the internet for his consideration

and in case of any inquiry, the traveler could contact the entrepreneur via email or

other contact channel provided; finally; getting enough and sufficient information, the

travel could immediately reserve air-ticket through online system. Thereby, each

operator uses its best effort to attract customer and traveler’s attention and the

information or conditions of the agreement which is mostly an adhesion agreement

may not be provided or set forth straightforwardly. Upon the process of online

reservation, the agreement is formed over an internet network; by the operator’s

solely discretion without any negotiation or amendment proposed by the customer.

Furthermore, most business operator tends to draft the adhesion agreement for its

benefit where the inequality provisions are contained therein e.g. an exclusion clause

which limits liabilities of the operator in case of flight delay, flight cancellation or in

case of denied boarding which affect consumer’s rights.

Even though, Thailand has the Consumer Protection Act B.E. 2522 as

amended by the Act B.E. 2553, it is just a general law regarding the overview of

consumer protection. There are certain defects as well as lack of proper legal

measures in order to protect rights of consumer; especially the consumer in the online

air ticket booking who is non-predominant party of the contract. In addition, these

laws have no secondary law or enforceable regulation and the online air ticket

reservation business; which is an electronic commerce as well as the adhesion

agreement is contained as a partial of the booking procedure, has not yet been

announced to be a business whose contract is controlled in order to create preventive

measures. Nevertheless; though, there is the Announcement of the Ministry of

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Transport on the Protection of Passenger Right Using Thai Air Carriers’ Services for

Domestic Scheduled Air Service B.E. 2553 providing the protection of rights of

customer who is an aircraft passenger regardless of the method of air ticket booking,

this Announcement covers only for a passenger travelling on domestic scheduled

flight whose air ticket reservation has already been confirmed. Hence; according to

this Announcement, there is a gap of protection because other passengers travelling

by international air carriers’ service or by Thai air carriers’ services but on an

international routes shall not be protected under this Announcement. Moreover,

although the Unfair Contract Terms Act B.E. 2540 aims to protect consumer’s rights

regarding entering into the fairness agreements; to provide protection, the judicial

procedure is required which it takes a long period and a burden of expense shall be

bear upon the consumer who is damaged from such unfair terms.

Due to online air ticket booking is a kind of electronic transaction

becoming widespread acceptance and provides lots of information to consumers for

their consideration. Consumers have risks when making online reservation. According

to the abovementioned; even if Thailand has general laws of consumer protection, it is

also lacking of the appropriate legal measures to provide sufficient protection in

connection with the online air ticket booking in practice. In this regards, the

Committee on Contract should be taken into account to determine online air ticket

reservation as a business which its contract is controlled as well as the Announcement

of the Ministry of Transport on the Protection of Passenger Right Using Thai Air

Carriers’ Services for Domestic Scheduled Air Service should be considered for

further amendment on the scope of the passenger whose rights shall be preserved

thereunder in order to include all passengers whether travels domestic or international

route.

Keywords: Consumer Protection, Electronic Commerce, Online Air Ticket Booking

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ACKNOWLEDGEMENTS

This thesis is a part of a Master of Laws in Business Laws (English

Program), Faculty of Law, Thammasat Univertsity. The completion of this thesis

could not be achieved without precious support and assistance offered from many

people. I; as the author, own many people a great debt who contribute their valuable

time to assist me to complete my thesis.

My first and sincere appreciation is sacrificed to my advisor; Dr. Khemapoom

Bhumithavara, for not only his marvelous guidance and care but also his

incomparably generosity and encouragement given to me for doing the research until

this thesis is completed. I could not have imagined having a better advisor for my study.

Secondly, I would like to express my deepest gratitude to Professor Dr.

Amnat Wongbandit, Judge Nopporn Bhotirungsiyakorn and Dr. Munin Pongsaparn

for devoting their valuable time as Committee of my thesis; providing useful

instructions, guidelines and important suggestions which assisted me considerably to

achieve my thesis.

In addition, I would also like to express my sincere gratitude to the LL.M.

Program of Faculty of Law, Thammasat University for providing an extremely

valuable and interesting academic program.

Lastly, I would like to thank my family; parents and sister, for their

continuous and unconditional love and support, my friends for their encouragement as

well as my chief and superiors; Ms. Sarocha Raungchan, Mr. Chadchai Choomchuay,

Mr. Takeshi Ohara, Mr. Masafumi Iwanaga and all of my colleagues at Bridgestone

Sales (Thailand) Co., Ltd. for their huge support.

Ms. Worrapan Jantaramard

Thammasat University

Year 2014

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TABLE OF CONTENTS

Page

ABSTRACT (1)

ACKNOWLEDGEMENTS (4)

LIST OF FIGURES (10)

LIST OF ABBREVIATIONS (11)

CHAPTER 1 INTRODUCTION 1

1.1 Background and Problem 1

1.2 Objectives of Study 3

1.3 Hypothesis 4

1.4 Scope of Study 5

1.5 Methodology 5

1.6 Expected Results 5

CHAPTER 2 GENERAL CHARACTERISTICS OF ONLINE AIR TICKET

BOOKING 7

2.1 Characteristic of Online Air Ticket Booking 7

2.1.1 Online Ticket Booking is an Electronic Commerce 12

2.1.2 Online Ticket Booking is a Click-Wrap Agreement 13

2.1.3 Online Ticket Booking is an Adhesion Agreement 17

2.2 Online Channel for Air Ticket Booking 19

2.2.1 Direct Channel of Online Air Ticket Booking through Airline 19

Website

2.2.2 Intermediary Channel of Online Air Ticket Booking through

Airline Website 21

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2.3 Conceptual in connection with Consumer Protection regarding Online

Air Ticket Booking 22

2.3.1 Freedom of Expression 22

2.3.2 Freedom of Contract 23

2.4 Rights of Consumer to be protected 24

2.5 Problems regarding Air Travel 26

2.5.1 Terms of Agreement of Air Ticket 26

2.5.2 Denied Boarding 27

2.5.3 Flight Delay 28

2.5.4 Flight Cancellation 31

CHAPTER 3 CONSUMER PROTECTION REGARDING ONLINE AIR TICKET

BOOKING UNDER THE FOREIGN LAWS 32

3.1 Consumer Protection regarding Online Air Ticket Booking under the Laws

of the European Union 32

3.1.1 Right to obtain information 33

3.1.1.1 Electronics Commerce Directive 2002 33

3.1.1.2 Consumer Rights Directive 35

3.1.1.3 Unfair Commercial Practices Directive 37

3.1.2 Right of Termination 39

3.1.3 Right to enter into fair contract terms 39

3.1.4 Fundamental Rights of Aviation Passenger as a Consumer 40

3.1.4.1 Denied Boarding 41

3.1.4.2 Flight Cancellation 43

3.1.4.3 Flight Delay 46

3.2 Consumer Protection regarding Online Air-Ticket Booking under the Laws

of the United Kingdom 50

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3.2.1 Right to obtain information 52

3.2.1.1 Electronics Commerce Directive 2002 52

3.2.1.2 Consumer Contract Regulations 2013 53


3.2.2.1 Consumer Contract Regulations 2013 55


3.2.3.1 The Unfair Contract Terms Act 1977 56

3.2.3.2 The Unfair Contract Terms in Consumer Contracts

Regulation 1999 59





CHAPTER 4 CONSUMER PROTECTION REGARDING ONLINE AIR TICKET

BOOKING UNDER THAI LAW 71

4.1 General Consumer Protection Law 72

4.1.1 Right to obtain adequate information 72

4.1.1.1 The Consumer Protection Act B.E. 2522 73

4.1.1.2 The Direct Sale and Direct Marketing Act B.E. 2545 75


4.1.2.1 The Direct Sale and Direct Marketing Act B.E. 2545 77

4.1.2.2 Civil and Commercial Code 78


4.1.3.1 The Consumer Protection Act B.E. 2522 80

4.1.3.2 The Unfair Contract Terms Act B.E. 2540 81





4.2 An Analysis of the problems concerning Online Air Ticket Booking

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in Thailand 92


4.2.2 Unfair Contract Terms 94

4.2.3 Problem on advertising control regarding information

provided for Online Air Ticket Reservation 94

4.2.4 Problem on legislation in order to provide the right of

termination to the consumer 95

4.2.5 Problem on legislation regarding unfair contractual term 96

CHAPTER 5 CONCLUSIONS AND RECOMMENDATIONS 97

5.1 Conclusion 97

5.1.1 Problem on advertising control regarding information provided

for Online Air Ticket Reservation 97

5.1.2 Problem on legislation in order to provide the right of termination

to the consumer 97

5.1.3 Problem on legislation regarding unfair contractual term 98

5.1.4 Problem concerning the Announcement of Ministry of

Transportation regarding the Protection of Rights of Passengers

using Thai Air Transportation Service in Domestic Routes Policy

B.E. 2553 99

5.2 Recommendations 100

5.2.1 To revise and amend provision of CPA regarding advertising

control on information published in online network 100

5.2.2 To consider and stipulate the Online Air Ticket Reservation

Service to be a controlled business with respect to contract 100

5.2.3 To revise and amend provision of the Direct Sale and Direct

Marketing Act 102

REFERENCES 104

APPENDICES

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APPENDIX A

Example of Terms and Conditions contained in Online Air Ticket Booking

Agreement

APPENDIX B

Regulation (EC) No. 261/2004 of the European Parliament and of the Council

of 11 February, 2004 establishing common rules on compensation and assistance to

passengers in the event of denied boarding and of cancellation or long delay of flights,

and repealing Regulation (EC) No. 295/91

APPENDIX C

The Announcement of the Ministry of Transportation regarding the Protection

of Rights of Passengers using Thai Air Transportation Services in Domestic Routes

B.E. 2553

BIOGRAPHY

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LIST OF FIGURES

Figures Page

2.1 Transportation by an airplane 8

2.2 Unique visitors to low-cost airline website: Asia Pacific 9

2.3 Internet population composition and travel site visitation composition 10

2.4 Reach of travel category among unique visitors 11

2.5 Click-wrap agreement procedure 16

2.6 Example of airline website (Direct booking channel) 20

2.7 Example of airline website (Intermediary booking channel) 21

2.8 Example of online terms of agreements 27

2.9 Flight delay and cancellation statistics 29

2.10 Snow on plane 30

3.1 Share and change of monthly passenger carried in 2013 and in the first

Three quarter of 2014 33

3.2 Volunteer form for voluntary denied boarding 42

3.3 Flight delay and cancellation shown at the airport 48

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LIST OF ABBREVIATIONS

Symbols/Abbreviations Terms

CCC

CPA

CRD

E-Commerce Directive

Thai Civil and Commercial Code

Thai Consumer Protection Act

The Consumer Rights Directive

2011/83/EU

The Directive 2000/31/EC on Electronic

Commerce

EU The European Union

UCPD or UCP Directive The Directive on Unfair Commercial

Practice

UCTA

The Unfair Contract Terms Act 1977

1

CHAPTER 1

INTRODUCTION

1.1 Background and Problem

Nowadays, tourism industry is an industry which is enlarged and plays a key role

in Thailand’s economic and social system. In addition, it is also a significant income

source acquiring foreign currencies as well as it us conducive to the development of

transportation infrastructure including trading and investment. In any event that

Thailand faces economic crisis, tourism industry is an instrumental in increment of

income because the tourism industry is composed of many important business such as

an accommodation business, restaurant business and; especially, the transportation

business which is categorized to aviation business, bus business, car rent business etc.

Moreover, Thailand has a lot benefit from natural resources and geography attracting

tourists; therefore; currently, the government gives precedence to the tourism

industry, determines tourism as a national agenda and carries forward strategic plans

to arouse tourism investment.

According to above reasons; at the present, Thai Government launched the

National Tourism Development Plan B.E. 2555-25591 in order to revive and

invigorate tourism section as well as to speed up the potentiality to increase national

income, distribute income and sustainable development coexistingly. This National

Tourism Development Plan emphasizes on the protection of tourism’s effect to be

conformed to the Eleventh National Economic and Social Development Plan (2012-

1 Ministry of Tourism and Sports, แผนพฒนาการทองเทยวแหงชาต พ.ศ. 2555-2559

[National Tourism Development Plan B.E. 2555-2559] (2011), available at

http://www.tica.or.th/images/plan_tourism2555-2559/2555-2559.pdf. (last visited July

29, 2015)

2

2016)2. On account of the government sector considers that an electronic media is an

important channel to be used as a marketing channel in tourism industry, the Tourism

Authority of Thailand (TAT) has built up online marketing channel so as to access

global tourists through social network and smartphone. In this regard, TAT cooperates

with 3 topnotch tourism websites which are Trip Advisor.com, Google Street View

and Zizzee.com for increasing new operation channels which is advantage to online

business entrepreneur including it is an additional service to the tourists. Furthermore,

TAT also considers taking reviews of tourists who received online air ticket booking

published on Tripadvisor.com to be published in the official website of TAT as

additional information which is deemed a plan to promote the tourism in Thailand.3

Aviation business is almost the first one among tourism businesses which an

electronic system is applied. The electronic system almost totally changes both form

and method of business operation including but not limited to providing service

information, marketing communication which satisfies the traveler. In accordance

with the characteristic of the electronic system, it is the network globally connected

which makes entrepreneur and traveler communicates conveniently even though they

live in different hemisphere. The electronic system is deprived of limitation of time

zone and place; likewise, electronic database is huge which the entrepreneur is able to

present information regarding flight schedule and related service completely than

present through other printed material such as handbill or brochure which is more

expensive and the number of data contained therein is limited by paper width and

information printed on such handbill could not be re-written unless there is new

2 National Economic and Social Development Board, Summary of The Eleventh

National Economic and Social Development Plan (2012-2016) (2011), available at

(http://www.nesdb.go.th/Portals/0/news/plan/p11/SummaryPlan11_Eng.pdf. last

visited July 20, 2015) 3 ททท. ย าการตลาดออนไลนดวยกลยทธ Digital Marketing สความเปนผนาดานทองเทยวของ

เอเชย [TAT Underlines Digital Marketing Strategy to Become Asian Tourism

Leader], Voyage Travel Magazine, Jan. 2013, available at http://www.voyagetravelmag.com/pr-news-activities/item/100-prnews-activities-

jan2013-tat. (last visited July 29, 2015)

3

publishing. In addition, flight schedule or details of related services are frequently

modified in accordance with current world situation; especially departure and

destination country, seasons and traveler’s need; thereby, business entrepreneur is

implicitly required to develop their online booking system in order to facilitate

targeted travelers. 4

As a result of using electronic system for online air tick booking is substantially

convenient and low cost; to facilitate the traveler as much as possible, there are many

online booking channel other than booking directly through the official website of

each airline; for instance, booking through travel agency or booking through

intermediary channels such as agoda.com, tripadvisors.com etc. In addition, there are

several associations which airline business entrepreneurs are participated with i.e.

National Business Aviation Association (NBAA), European Business Aviation

Association (EBAA), Thai Travel Agent Association (TTAA), Thai E-Commerce

Association, the Association of Thai Tour Operators (ATTO) and since the number of

entrepreneur has been increased more and more, it makes the entrepreneurs have

strong bargaining power than the travelers who are just normal consumers. These

entrepreneurs might uses this advantage to define terms and conditions of agreement

which occasionally unfair to certain travelers; for example, disclaimer or limitation of

liability by applying the principle of the Autonomy of Will exploiting to consumer.

1.2 Objectives of Study

The following objectives are contained in this study:

a. To study on background, history and development of marketing channels of

online air ticket reservation.

4 เมอพฤตกรรมนกทองเทยวเปลยน/ถงเวลาท ททท.ใชแอพฯ ทาตลาด [TAT Uses Mobile App

in Response to Changes in Tourists’ Behavior], Siam Rath, Jul. 7, 2015, available at

http://www.siamrath.co.th/web/?q=เมอพฤตกรรมนกทองเทยวเปลยนถงเวลาท-ทททใชแอพฯ-ทาตลาด. (last visited July 26, 2015)

4

b. To analyze the actual facts regarding consumer protection arising from online

air ticket reservation.

c. To study on legal problems regarding the current measures of consumer

protection on the online air ticket reservation whether these measure could be

applied fairly and appropriately.

d. To consider and analyze unfair contract terms which the seller using online air

ticket reservation solely determines to bind the consumer.

e. To study and analyze relevant foreign laws, legislations, regulations and

measures about consumer protection regarding online air ticket reservation

comparing with Thai laws.

f. To study problems and obstacles of measures relevant to Thai consumer

protection laws in accordance with Consumer Protection Act B.E.2522.

g. To seek and propose appropriate legal measures and solutions relating to

consumer protection; particularly in online air ticket reservation.

1.3 Hypothesis

Even though, consumers in Thailand have the rights and entitled to exercise their

rights under the laws of consumer protection e.g. Consumer Protection Act B.E. 2522,

Unfair Contract Term Act B.E. 2540, they are practically unable to provide legal

protection to Air Travel Consumers in reality because of not up-to-date and lacking of

the suitable legal measures. Notwithstanding, regarding to current practice that

reservation and ticket purchasing are executed via electronic means, the legal

measures under Electronic Transaction Act B.E. 2544 and other related legal

provisions do not provide the proper and efficient legal protection to the Air Travel

Consumers especially the right to terminate the flight or be terminated by the Airline.

Therefore, in order to enhance the legal protection and legal mechanisms for the Air

Travel Consumers, there should be the specific legal provisions prescribing the right

of Air Travel Consumers and provide them the practical protection.

5

1.4 Scope of Study

For the purpose of this thesis, the author study background of the current

situations and problems of online purchasing transaction in order to consider and

analyze consumer protection problems which might be obstacle of the expansion of

online business as well as to propose appropriate solutions.

1.5 Methodology

This thesis will conduct a comparative study on legal models, based upon

consumer protection laws through “documentary research”, mainly study and analysis

by focusing on texts and documents as source materials; for example, international

and domestic related laws, journals, periodicals, articles, information through the

internet and other relevant documents. In addition, the comments or suggestions from

related organizations are also be used in this paper. The obtained information will be

applied and analyzed in order to create appropriate and practicable solutions.

1.6 Expected Results

In consequence of this study, the following statements are the results which are

expected:

a. To understand background, history and development of marketing channels of

online purchasing transaction.

b. To understand the actual facts regarding consumer protection arising from

online purchasing transaction

c. To understand legal problems regarding the current measures of consumer

protection whether these measure could be applied fairly and appropriately.

6

d. To understand unfair contract terms which the seller using online transaction

solely determines to bind the consumer.

e. To understand relevant foreign laws, legislations, regulations and measures

about consumer protection regarding online purchasing transaction including

Thai laws.

f. To understand problems and obstacles of measures relevant to Thai consumer

protection laws in accordance with Consumer Protection Act B.E.2522.

g. To analyze appropriate legal measures and solutions relating to consumer

protection; particularly in online purchasing transaction.

7

CHAPTER 2

GENERAL CHARACTERISTICS OF ONLINE AIR TICKET

BOOKING

2.1 Characteristics of Online Air Ticket Booking

According to the research taken by Comscore Inc.; an internet technology

company providing an analytic for various of enterprises, agencies and publishers,

jointly with the Pacific Asia Travel Association (PATA) regarding online tourism

industry, it is founded that5;

According to the overview of tourism industry during 2010, there is an

increment of information research service. The number of visitors of low-cost airline

website has been increasingly mounted.6 The consumers usually seek for the best

offer for their trip; including but not limited to travelling place, low-price air ticket

and the best price of accommodation which online process fulfill the traveler’s need.7

With reference to the change of traveler’s behavior, the marketing

personnel should bear in mind that the branding creation through online

communication channel is significant.8 In addition to this, the tourism strategic

promotion integrated with the digital world is important thing that the tourism

entrepreneur in Asia-Pacific; especially, in case the targeted consumer is juvenile

since the juvenile traveler usually research travelling information from online

channel.

5 PATA 60

th Anniversary and Conference: ความเปนจรงใหมของการเดนทางทองเทยว

ปจจบน และอนาคต, TAT Review, Nov. 28, 2011, available at

http://www.etatjournal.com/web/etat-journal/2011/2011-oct-dec/369-42554-pata-

60th-anniversary-and-conference. (last visited July 11, 2015) 6 Id.

7 Id.

8 Id.

8

According to the aviation business study, it is also founded that the

most online-searched airline is Air Asia Airline; having the most visited ratio on

February, 201 at the total amount of 3.3 million visitors and the secondary is Tiger

Air-1.8 million visitors. Furthermore; comparing between year 2010 and 2011, Tiger

Air has the highest growth rate among other airlines at the rate of 3 times of the

previous year.9

FIGURE 2.1: Transportation by an Airplane

Source: http://ekimkee.blogspot.com

9 Id.

9

FIGURE 2.2: Unique Visitors to Low-Cost Airline Website: Asia Pacific

Source: PATA the 60th Anniversaries and Conference 11-12 April 2011

With reference to this study regarding internet usage for travelling

comparing with internet usage in general, it is founded that; in the Asia-Pacific Zone

has the highest rate of internet usage in general; at 41% of total popularity; followed

up by European Continental; at 27% and 15% for North America. However;

considering for the internet usage for travelling, the highest internet usage for

travelling is Europe; 36%, followed by America and Asia-Pacific; at the rate 27% and

26% respectively.10

10

Id.

10

FIGURE 2.3: Internet Population Composition and Travel Site

Visitation Composition


Considering by the country, it is revealed that the United Kingdom is

the country having the highest internet usage for travelling purpose; at the rate of 67%

of its total population; followed by Canada, New Zealand and Singapore; at the rate

64%, 60% and 53% respectively.11

11

Id.

11

FIGURE 2.4: Reach of Travel Category among Unique Visitors


In summary; to operate aviation business by using online booking system

helps entrepreneur expanding customer base because it has no limitation of time,

place and volume of information transmitted through online network. It facilitates

traveler to unlimitedly search for any information regarding flight schedule including

other related aircraft services; besides, the traveler is able to contact air-ticket

entrepreneur directly. This channel also increases customer in the future who is

internet user; in the other word, any traveler who is interested in travelling by aircraft

could surf information on the internet for his consideration and in case of any inquiry,

the traveler could contact the entrepreneur via email or other contact channel

provided; finally; getting enough and sufficient information, the travel could

immediately reserve air-ticket through online system. 12

12

รชนนท เรองชยวงศ, ความคดเหนของผใชอนเตอรเนตเกยวกบลกษณะทางการสอสารการตลาดในเวบไซตพาณชยอเลกทรอนกสดานการทองเทยว [Internet Users’ Opinions on Marketing

Communications Methods in E-Commerce Tourism Websites] (2003) (MA thesis,

Thammasat University).

12

2.1.1 Online Air Ticket Booking is an Electronic Commerce

Online Air Ticket Booking is one among electronic commerce (e-

commerce) business which means a type of business model, or segment of a larger

business model, that enables a firm or individual to conduct business over an

electronic network; typically the internet. Electronic commerce operates in all four of

the major market segments: business to business, business to consumer, consumer to

consumer and consumer to business. It can be thought of as a more advanced form of

mail-order purchasing through a catalog. Mostly, any type of product or service could

be offered via ecommerce, from books and music to financial services and plane

tickets.13

An electronic commerce is a form of business operation becomes

presently popular which many traders reduce old method and urge their customers to

operate transaction via internet network. Due to the aviation business is one of the

highest competitive businesses; especially in an economic crisis, several airline

businesses have to develop themselves to reduce their costs and expenses to attract

customer’s attention as well as to contend with other traders efficiently. In this

regards, numerous of aviation businesses have applied internet system and related

technology in their operations in order to develop the online air ticket booking

service.14

In the other word, ecommerce is a trading operation throughout

purchasing procedure including marketing action, buy and sell or payment through an

electronic system and after-sale service by using electronic for data processing and

13

INVESTOPEDIA, Electronic Commerce – ecommerce,

http://www.investopedia.com/terms/e/ecommerce.asp. (last visited July 14, 2015) 14

ภาสกรณ จนทนพยอม, บตรโดยสารอเลกทรอนกส: รปแบบใหมของบตรโดยสารเครองบน [E-

Tickets: New Form of Air Tickets], 54 จฬาลงกรณวารสาร [CU. J.] 71-74 (2002) as

mentioned in Ananchai Sakdejayont, Protection of Airline Passenger Rights: The

Case of Thailand (1983) (LL.M. thesis, Thammasat University).

13

digital information transmission. Moreover, online air ticket booking is also deemed

as the operation of direct marketing in accordance with the Direct Sale and Direct

Marketing Act B.E. 2545 (amended by the Direct Sale and Direct Marketing Act B.E.

2550); Section 3 which defines meaning of ‘Direct Marketing’ that it refers to the

marketing of goods or services in a manner of communicating information for the

sales of goods or services directly to the consumer at a distance and expecting such

consumer to respond and purchase the goods or services from the direct marketing

operator.15

According to the given definition, it may imply that online air ticket

booking is an advertisement as well as a proposal of seller’s product information to

induce the customer to purchase product which is deemed as the marketing activity

operated through electronic channel; in addition, this is the channel where the

customer is able to purchase product which the sale agreement is created.

2.1.2 Online Air Ticket Booking is a Click-Wrap Agreement

Upon the principle of contract formation, the contract shall be

formed at the time that an offer meets an acceptance. For online air ticket booking,

The sale agreement is formed when the seller’s offer published on

his website meets customer’s acceptance which is performed in accordance with the

step designated by the seller; for instance, email confirmation or clicking on ‘confirm’

button shown in the webpage etc. In this regard; at the time of confirmation, the

consumer is bound upon terms and conditions stipulated by the entrepreneur.

Normally; on electronic transaction, customer shall be bound with terms of contract

by 2 means; by ‘click-wrap agreement’ or ‘browse-wrap agreement. Nevertheless;

15

(Translation) Direct Sales and Direct Marketing Act B.E. 2545,

http://www.thailawforum.com/database1/direct-sales-act.html. (last visited July 29,

2015)

14

regardless of the method of binding, the customer has no chance to negotiate with the

entrepreneur to amend any contract term.16

Click-wrap agreement or; sometimes it is called as ‘click-through’,

‘click and accept’ agreement is agreement formed over the internet.17

Generally,

online purchase of tangible goods requires acceptance of such an agreement. Many

customers who are internet users have become familiar with screens flashing legal

terms and conditions and requiring the clicking of an “I accept” button before such

goods can be ordered. In this regard, the purchaser must indicate his assent to be

bound by the terms of the offer via express conduct -- typically the act of clicking on

a button stating “I agree” or “I accept.” By this method; entering into sale agreement

through online service, no paper record is generally created nor is the signature

(electronic or paper) of the customer typically required.18

In this sense; the sale

agreement has been created at the time of clicking “Accept” and legally binds the

customer even though the customer has not yet thoroughly read over the pop-up

terms. However, the unfair contract term shall be counted for the enforcement of the

agreement thereafter.19

Clickwrap agreements are agreements formed on the Internet. A

website provider generally posts terms and conditions and the user clicks an "I

Accept" button. The courts have generally held these agreements to be enforceable.

Recently, some website providers have been skipping the "I Accept" process for fear

that online users will not want to go through this extra step and may instead leave for

16

Panita Pongpornpon, Consumer Protection in Accommodation Online Booking

(2014) (LL.M. thesis, Thammasat University). 17

WilmerHale, The Origin of Click-Wrap: Software Shrink-Wrap Agreements (Mar.

22, 2000),

https://www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?NewsPubId=955

43. (last visited July 11, 2015) 18

Id. 19

Duangporn Techakamthorn, Legal Problems regarding Shrink-Wrapped Licensing

(2003) (LL.M. thesis, Chulalongkorn University).

15

another website.20

Nevertheless, the recent Second Circuit of Schnabel v. Trilegiant

Corp., 2012 WL 3871366 (the 2nd

Cir. Sept. 7, 2012) has reminded website operators

to be exceedingly careful in assuring that an agreement has been formed.21

In Schnabel, the contracting procedure included filling out an

enrollment screen. After inserting required information into the boxes on the

enrollment screen, the purchaser clicked on a “Yes” button agreeing that the vendor

could transmit credit card data. The vender followed up with an email of terms and

conditions which; notably, included an arbitration provision. The court ruled that the

contract was formed at the moment the plaintiffs entered their personal information

into the online enrollment screen and such follow-up email was not sufficient to add

additional terms such as the arbitration clause. The terms and conditions were not

shown on the enrollment screen.22

For this reason, an online vendor should employ the following

registration process prior to taking any order information. As an initial matter,

evidence of an electronic signature can be as follows:

Clicking "I Agree"

Typing one's name into a signature block

On a telephone pad, selecting certain numbers

Continuing through to the following pages on a website

Using a cursor or other device to manually scroll one's name on

a device

20

Richard Raysman, Enforceability of Clickwrap Agreement Called into Question -

Checklist for Best Practices in Electronic Contracting (Nov. 7, 2012),

http://www.hklaw.com/digitaltechblog/Enforceability-of-Clickwrap-Agreement-

Called-into-Question----Checklist-for-Best-Practices-in-Electronic-Contracting-11-

07-2012/. (last visited July 12, 2015) 21

MacLean Media & Technology Law, Validity of Clickwrap Agreements (Jan. 12,

2013), http://www.macleanmedialaw.com/validity-of-clickwrap-agreements. (last

visited July 9, 2015) 22

Id.

16

Inserting a digital representation of an individual's signature23

FIGURE 2.5: Clickwrap Agreement Procedure

Source: http://www.brightlabs.com.au/page/Blog/Click_wrap_agreements-

_What_Are_They_and_Are_They_Enforceable/

For an electronic signature to be effective, the sound, symbol or

process must show the signer's intent to be bound to the particular terms and

conditions associated with that action, and must be attributable to the specific person

against whom those terms and conditions are intended to be enforced. As an example,

there could be text above an "I agree" selection that clearly indicates that by selecting

the "I agree" button, the person agrees to be bound to specified terms and conditions.

A clickthrough agreement with an electronic signature should be mandatory and non-

porous and should have the following characteristics:24

23

Id. 24

Id.

17

Mandatory -- users on the website cannot proceed to the next

destination without going through a screen soliciting their consent to the terms and

conditions and any other necessary documents (e.g., a customer who enrolls in a

program, completes a purchase, or downloads software cannot complete the

enrollment/checkout process without clicking “I Agree” to a box on the web page).

Non-porous -- there are no alternative ways that the users can

reach the destination. For example, if the account is initially set up manually with a

Company representative on the phone with the user, the mandatory process may

become porous if the vendor can sign onto the website without going through the

mandatory consent process.

Clickthrough -- the user exhibits consent to the contract by

clicking, and the user is told that the click signifies consent.

Certification -- the user is asked to check an additional box as

a certification that the user has read the agreement.

Authorization -- a user representative confirms that he/she is

authorized to contractually bind the user by clicking on a box.25

2.1.3 Online Trading Transaction is an Adhesion Agreement

At the present, there is variety of business operation in current

economic system where the population lives all over the world; therefore, adhesion

agreement becomes important because the adhesion agreement helps entrepreneur to

enter into many agreements by using only one draft of agreement instead of

negotiation with each customer causing waste of time and expense. In summary, using

adhesion agreement reduces transaction costs of the entrepreneur.26

25

Id. 26

สรวศ ลมปรงษ, สมผสคดดงตางประเทศ [Piercing the corporate veil], 1 ดลพาห, 214 (2008).

18

Consequently, adhesion contract is used in many transactions

popularly. On the whole, the form of adhesion contract is similar that is composed of

tiny letter which is difficult to read in order to save space of contract sheet as well as

for the convenience to propose, deliver and store the contract or information

contained therein. Moreover, if the adhesive provision is presented via electronic

channel, it might be presented by other means of the provision shown in the website

page. In addition, adhesive contract is always drafted and reviewed by legal

consultant of the party who prepares the contract; in this regard, its content is

normally advantage to such party. The contents are usually consisted of legal

language or technical terms which are complicated to understand. Though the other

party who is not familiar with legal language or technical terms uses his best effort to

consider contents contained in the agreement, he still does not understand certain

provisions which is unfair to the consumer.

Adhesion agreement means a boilerplate agreement entirely

prepared by the party having preponderant bargaining power and offers to the weaker

party on a ‘take it’ or ‘leave it’ basis. This kind of agreement provides little or none of

opportunity to negotiate the terms. 27

It means; even though the disadvantaged party

discovers certain conditions are unacceptable, he cannot suggest for any amendment.

The name comes from the reality that the stronger party draws up the contract and the

weaker party simply 'adheres' to the terms; accordingly, it is called a contract of

adhesion.

Alike, adhesion contract is a type of contract which is a legally

binding agreement between two parties to do certain duties in which one side has

bargaining power and uses this power to write the contract primarily to his

27

Business Dictionary, adhesion contract,

http://www.businessdictionary.com/definition/adhesion-contract.html. (last visited

July 19, 2015)

http://www.businessdictionary.com/definition/draw.html

19

advantage28

; in case of sale agreement, main duty of the seller is to deliver goods to

the buyer while the buyer has to pay price of purchased product to the seller. In the

other word, the adhesion agreement is a standardized form of agreement which offers

goods to customer on essentially a ‘take it or leave it’ basis without giving consumers

realistic opportunities to negotiate terms which would be benefit their interests. And

when this situation is occurred, the consumer cannot obtain the desired good unless he

acquiesces to the said form of contract.29

According to the abovementioned definition, contractual clauses set

forth in online air ticket booking designated by the entrepreneur which determines

rights, duties and responsibilities of the parties are already prepared, the buyer has

only to consider whether accept or not. In this regard, the customer has neither

participation to draft the agreement nor opportunity to negotiate for amendment of

contractual clause; thereby, it might be said that the contract which binds the parties

of online air ticket booking is adhesion contract.

2.2 Online Channel for Air Ticket Booking

As a result of using electronic system for online air tick booking is substantially

convenient and low cost; to facilitate the traveler as much as possible, it causes

various operating channel other than walk-in booking or booking through agencies

which; presently, are devaluated by the limitation of time that the traveler has to go to

the airline or agencies’ office or limitation of communication. Consequently; to

understand online air ticket business operation obviously, the form of online air ticket

booking shall be taken into consideration.

2.2.1 Direct Channel of Online Air Ticket Booking through Airline

Website

28

West's Encyclopedia of American Law (2nd

ed. 2008), available at http://legal-

dictionary.thefreedictionary.com/Adhesion+Contract. (last visited July 29, 2015) 29

Black’s Law Dictionary (5th

ed. 1979).

20

Direct channel of online air ticket booking through website of

airline is the channel where the business owner provides reservation system on the

website to comfort customer in order to make a reservation directly. The direct

channel simplifies ticket booking since customer and entrepreneur could directly

communicate i.e. providing flight schedule corresponding to customer’s demand; in

addition, it is convenient for sale and marketing management efficiently. However,

this channel might not be suitable for small or new born airline business because the

brand is not yet famous enough to attract customer.30

FIGURE 2.6: Example of Airline Website (Direct Booking Channel)

Source:http://www.aa.com/i18n/urls/changereservation.jsp?anchorLocation=DirectU

RL&title=changereservations

30

พมพรว ทหารแกลว และ จรวฒน สมตสนต, เอกสารประกอบการสอนระบบเทคโนโลยสารสนเทศสาหรบโรงแรม 117 (กรงเทพมหานคร, หางหนสวนจากดเอม แอนด เอม เลเซอรพรนต) (2011). (Pimrawee Taharnklaew and Jeerawat Samithsan, Lecture Handout of Hotel

Information Technology pp.117)

21

2.2.2 Intermediary Channel

Intermediary channel of online air ticket booking through

intermediaries is the channel where the traveler is able to reserve air ticket from a

website of an individual or a corporate who operates as an agency of airline ticket by

gathering flight information of various airline. In this regard, the traveler could seek

and check in order to find the perfect flight which meets his need.

In doing this, the internet is a potential tool evolving into an

interconnected marketplace, facilitating the exchange of a wide variety of services. In

last few years, a new type of intermediary or we may calls as a ‘cybermediary’31

which is developed parallel to the existing intermediaries; such as tour operators or

travel agents. There are various forms of intermediary channel for online air ticket

booking as Tour Operator and Online Travel Agents (OTAs)32

FIGURE 2.7: Example of Airline Website (Intermediary Channel)

Source: http://www.hindsoft.com/website-designing-delhi/travel-portal.html

31

Despina Kanellou, The New Role of Intermediaries in Travel and Tourism

Distribution Channels, Institute of Prospective Technological Studies. 32

Id.

22

2.3 Concept which is able to apply with the consumer protection regarding

Online Air Ticket Booking

2.3.1 Freedom of Expression

Freedom of speech and expression has a long history that predates

modern international human rights instruments.33

It is thought that ancient Athens’

democratic ideology of free speech may have emerged in the late 6th or early 5th

century BC.34

The values of the Roman Republic included freedom of speech and

freedom of religion.

Concepts of freedom of speech can be found in early human rights

documents. England’s Bill of Rights 1689 granted 'freedom of speech in Parliament'

and is still in effect. The Declaration of the Rights of Man and of the Citizen, adopted

during the French Revolution in 1789, specifically affirmed freedom of speech as an

inalienable right.

The free communication of ideas and opinions is one of the most

precious of the rights of man. Every citizen may, accordingly, speak, write, and print

with freedom, but shall be responsible for such abuses of this freedom as shall be

defined by law.

Today freedom of speech, or the freedom of expression, is recognized in

international and regional human rights law. The right is enshrined in Article 19 of

the International Covenant on Civil and Political Rights, Article 10 of the European

Convention on Human Rights, Article 13 of the American Convention on Human

33

David Smith, Timeline: a history of free speech, The Guardian, Feb. 5, 2006. 34

Kurt A. Raaflau, Josiah Ober & Robert Wallace, Origins of Democracy in Ancient

Greece 65 (University of California Press) (2007).

http://en.wikipedia.org/wiki/International_human_rights_instruments

http://en.wikipedia.org/wiki/Athenian_democracy

http://en.wikipedia.org/wiki/Athenian_democracy

http://en.wikipedia.org/wiki/Roman_Republic

http://en.wikipedia.org/wiki/Bill_of_Rights_1689

http://en.wikipedia.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen

http://en.wikipedia.org/wiki/French_Revolution

http://en.wikipedia.org/wiki/Human_rights_law

http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights

http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

http://en.wikipedia.org/wiki/American_Convention_on_Human_Rights

http://en.wikipedia.org/wiki/University_of_California_Press

23

Rights and Article 9 of the African Charter on Human and Peoples' Rights.[9]

Based

on John Milton's arguments, freedom of speech is understood as a multi-faceted right

that includes not only the right to express, or disseminate, information and ideas, but

three further distinct aspects:

1. the right to seek information and ideas;

2. the right to receive information and ideas;

3. the right to impart information and ideas

International, regional and national standards also recognize that

freedom of speech, as the freedom of expression, includes any medium, be it orally, in

written, in print, through the Internet or through art forms. This means that the

protection of freedom of speech as a right includes not only the content, but also the

means of expression.35

2.3.1.2 Freedom of Contract

Depending on one’s point of view, freedom of contract could be referred

as an option between the liberty of individual and government control, or it might be

seen as a choice between communitarian consensus and the worst excesses of laissez-

faire capitalism. Most of contract law consists of default rules, or rules that apply

when parties fail to address a topic one way or the other in their contracts. For

example, most of the rules governing offer and acceptance, or implied warranties, or

implied excuses such as impracticability or mistake, apply only if the parties have not

agreed otherwise. And as long as the parties are free to agree otherwise, it is hard to

indicate how freedom of contract is at all affected by these default rules. There are

35

Andrew Puddephatt, Freedom of Expression: The essentials of Human Rights 128

(Hodder Arnold) (2005).

http://en.wikipedia.org/wiki/African_Charter_on_Human_and_Peoples%27_Rights

http://en.wikipedia.org/wiki/Freedom_of_speech#cite_note-autogenerated1-9

http://en.wikipedia.org/wiki/John_Milton

http://en.wikipedia.org/wiki/Internet

24

lots of other arguments that might bear on the desirability of any particular default

rule, but arguments about ‘freedom of contract’ are largely irrelevant.36

There are some parts of contract law, though, that do raise freedom of

contract issues. The rules against excessive liquidated damage clauses, for example,

or the rules blocking enforcement of promises unsupported by consideration, both

limit the freedom of contracting parties to some extent. The same is true, in at least

some cases, when enforcement of harsh contract terms is deemed unconscionable by

courts. And outside of contract law itself, limits on freedom of contract can also be

found in insurance law, labor law, landlord-tenant law, products liability law, and in

many other doctrinal fields.37

2.4 Rights of Consumer to be protected

The notion of protection of consumer’s rights in Thailand is founded in the

Constitution B.E. 254038

mentioned in Section 57.39

In accordance with Thai

Consumer Protection Act B.E. 2522 amended by the Consumer Protection Act (No. 3)

B.E. 2556 prescribes the protection of consumer’s rights as the following;

1) The right to receive an adequate and correct information and

description of goods or services. It means the right to obtain correct advertisement or

labeling presentation without any harm against consumer as well as the right to be

36

Richard Craswell, Freedom of Contract (Coase-Sandor Institute for Law &

Economics Working Paper No. 33, 1995), available at

http://www.law.uchicago.edu/files/files/33.Craswell.FrdmCntrct_0.pdf. (last visited

July 22, 2015) 37

Id. 38

Office of the Consumer Protection Board, Consumer’s Rights,

http://www.ocpb.go.th/ewtadmin/ewt/ocpb_eng/ewt_news.php?nid=10 (last visited

June 24, 2015). 39

“The rights of any person as a consumer shall be protected as prescribed by the

laws” (Thail. Const. B.E. 2540 § 57).

25

aware of sufficient information for making decision to purchase goods or services

without unfairness.

2) The right to choose goods or services freely; without any

unfair inducement.

3) The right of safety from goods or services consumption

including the right to obtain non-hazardous and standardized goods or services which

shall not be harmful to life, body or property if the consumer complies with its

instruction or use his best endeavor in using such goods or taking such service.

4) The right to enter into a fair contract which includes the right

to have an opportunity to consider the fair contractual terms without being taken

advantage by trader.

5) The right to be considered for compensation in case of injury

which offended consumer’s rights stipulated in 1) - 4) above.

In accordance with the fundamental rights of consumer as stipulated above; to

consider the consumer protection regarding online air ticket booking, these

fundamental rights should be taken into account to seek appropriate legal measures to

preserve rights of consumer for entering into electronic transaction regarding air ticket

reservation. In this sense, the consumer protection standard of the person who

purchases goods or services in general and the person who purchases through an

electronic means should be in the same level.

With reference to Section 21 of Thai Consumer Protection Act stipulates that

“In case there is any specific law provided for any matter, such specific law shall be

applied to the said matter and the provisions contained in this Chapter shall be

applied to the same matter so far as it is not contrary to the specific law…” which

means this Act aims to preserves consumer’s rights by stipulating in writing;

26

meanwhile it also accepts other legislations existing or to be existed in the future in

form of Act, Royal Decree, Notification, Ministerial Regulation or even concerning

provisions set forth in the Civil and Commercial Code to be enforceable for consumer

protection purposes.40

2.5 Problems regarding the air travel

There are several troubles probably occurred in connection with air travelling

which may affect consumer whether the consumer reserves his air ticket by normal

method or through online booking system. Summarily, the concerning problems are

stipulated below;

2.5.1 Terms of Agreement of Air Ticket

According to the abovementioned in part 2.1.3 that the online air

ticket booking transaction is deemed as an adhesion agreement which its contents are

determined solely by business operator’s discretion and consumer has neither

participation to draft the agreement nor opportunity to negotiate for amendment of

contractual clause. In this regard; to protect the right of consumer, we cannot refuse

that the terms of agreement should be taken into consideration.

40

สษม ศภนตย, คาอธบายกฎหมายคมครองผบรโภค [Consumer Protection Law

Explanation] (Chulalongkorn University Press) (6th

ed. 2008).

27

FIGURE 2.8: Example of Online Terms of Agreements

Source: http://www.emirates.com/uk/english/sitetools/terms_and_conditions.aspx

2.5.2 Denied Boarding

During the procedure of online air ticket booking; generally, the

operator always provides overbooking. The overbooking is a circumstance where the

air tickets are created and placed for a reservation in a specific volume in excess of

the actual available seats having on the plane in order to prevent the loss against no

showing which makes the operator loss income at the rate 12% of total income41

because; every once in a while, some passengers tend not to present themselves at the

time of boarding. Nevertheless, in certain flights which all passengers who made

reservation present themselves for boarding, the available seats are not enough for all

consumers and; in this sense, the denied boarding is taken placed.

41

พรนพ พกกะพนธ, ธรกจการบน = Airline Business 213-214 (Chulalongkorn University

Press) (2005).

28

In consideration of being denied boarding voluntarily; in practice,

the airline always proposes a discount, redemption or special services to the volunteer

passenger. With reference to information of 2006, there are 77% of passengers who

were voluntarily denied boarding. Most of them are retired persons or students who

are flexible for travelling.

2.5.3 Flight Delay

Flight delay might be occurred to any flight departing from any

country. Upon the statistical data, there are more than a thousand delays around the

world. The delay may be arisen from the following circumstances42

;

Natural Disaster which is beyond the human’s control; for

instance, fog or storm etc. makes the airplane could not be landed at or departed from

the origin or destination airport.

Many airlines attempt to reduce their costs by using their

planes at most efficiently. Commonly, they usually prescribe taking off period for the

departure of the next flight at 30 minutes after the landing of previous flight without

spare time. In this sense, in case the previous flight was delayed, the next departure

operated by the same airplane shall be usually delayed in a domino effect.

Some airports have limited runways which does not cover

flight’s needs.

42

ยทธศกด คณาสวสด, เครองบนดเลย...ปญหาใหญทยงแกไมตก [Delayed Flights, the

Unsolvable Problem], 12 Investment Promotion Journal. 40 (2007) as cited in

Ananchai Sakdejayont, Protection of Airline Passenger Rights: The Case of Thailand

(1983) (LL.M. thesis, Thammasat University).

29

Many air carriers schedule their flights at the same time. In

Thailand, most European flights departing to the European countries are always

bunched up at the night time in order to favor their passengers because the passengers

can take a rest along the flight. Additionally, when the flight arrives the destination, it

is day time which passengers are able to do their businesses or travel.

Air transportation becomes substantially popular which causes

the airport’s capability is not enough for traveler’s need.

FIGURE 2.9: Flight Delay and Cancellation Statistics

Source: http://www.flightstats.com/go/Media/stats.do?region=europe&queryDate=today

According to the aforementioned circumstances, we may understand

that the delay of flight might be taken placed at any time. Occasionally, although the

period of delay which does not take too long – just for 1-2 hours delay do not affect

normal passengers; for some transited passengers, such delay means the miss of the

30

transited flight; especially in certain season such as Christmas, which the flight are

fully booked.

For example; in January of 1999, the aircraft of the Northwest

Airlines Corporation with fully loaded of passengers faced natural calamity; a

blizzard blanketed at the Detroit Airport. This disaster caused the plane landed over

for 8 hours; unfortunately, the passengers were stranded on the airplane hours and

hours—without food, water or functioning toilets.43

FIGURE 2.10: Snow on Planes

Source: http://www.independenttraveler.com/travel-tips/none/1999-tarmac-delays-on-

northwest-airlines

43

Independent Traveler, 1999: Tarmac Delays on Northwest Airlines,

http://www.independenttraveler.com/travel-tips/none/1999-tarmac-delays-on-

northwest-airlines. (last visited July 12, 2015)

31

In Thailand, the delay flight problem is founded frequently since the

flourish of low-cost airline business. Some flights were delayed for hours every so

often. In this regard, to protect consumer’s rights, the legal measures both domestic

and internationally shall be taken into consideration which shall be focused in the

Chapter 3 and 4.

2.5.4 Flight Cancellation

To travel; not only air transportation but also all methods of

transportation, the cancellation might be occurred at any time by vary of reasons.

In 2010, Thailand had a flight cancellation and delay case when the

group of government officers of the National Health Commission planed to travel to

Sakolnakorn Province to take their duties during 3-4 March 2010. The group had

made air ticket reservation through intermediary channel for Nok Airlines PLC.; flight

number DD9402 departed from Bangkok on March 3, 2010 at 9 a.m. Unfortunately;

at 4 p.m. of a day prior to the departure date, the officer of the airline informed the

flight cancellation to the group with the reason of ‘the pilot denied the duty’. The

group had no choice then they decided to travel on March 4, 2010 instead; however,

the flight was delayed for more than 3 hours. Finally, the group decided to cancel

their trip since they could not achieve the fixed schedule.44

In this regard, to protect

consumer’s rights, the legal measures both domestic and internationally shall be taken

into consideration which shall be focused in the Chapter 3 and 4.

44

เตรยมฟอง “นกแอร” ลอยแพผโดยสาร-ลาชา เรยกคาเสยหาย 9 ลาน [“Nok Air” to be sued

for ThB9mn], ASTV Manager Online, Mar. 5, 2010, available at

http://www.manager.co.th/QOL/ViewNews.aspx?NewsID=9530000031502 (last

visited July 3, 2015).

32

CHAPTER 3


TICKET BOOKING UNDER THE FOREIGN LAWS

At the present, many countries and international organizations such as the

European Union, the United Kingdom has realized and give their precedence to

consumer who buys airline ticket through online system since online air ticket

reservation becomes popular among the tourists and attracts traveler to travel to their

countries. This is a method for business operation propelling development of tourism

industry together with online reservation development. This Chapter shall explain

legislation and legal measures relevant to consumer protection of online air ticket

booking.


of the European Union

Tourism industry is retail business which is important for the economic system

of the European Union. In 2013 and within the third quarter of 2014, the trend was

noted that air passenger transportation was affirmed the increment of 1.7% compared

to the record of 201245

and the figures available for the first three quarters of 2014

indicate a year-on-year rise of 4.2%.46

To support the expansion of air transportation,

many directives of the European Union including relevant legal measures were

enacted for consumer protection purposes and also to support the entrepreneur. In

doing this, the European Commission gives priority to the expansion of electronic

commerce because there are certain concerns of consumer regarding taking service

through online network; consequently, the amendment of certain directives and

regulations have been made to be specifically applied with the electronic commerce

45

Eurostat, Air passenger transport – monthly statistics (Apr. 2015),

http://ec.europa.eu/eurostat/statistics-explained/index.php/Air_passenger_transport_-

_monthly_statistics. (last visited July 22, 2015) 46

Id.

33

FIGURE 3.1: Share of and Change of Monthly Passenger carried in 2013 and

the first three quarter of 2014

Source: Eurostat

(http://ec.europa.eu/eurostat/statistics-explained/index.php/Air_passenger_transport_-

_monthly_statistics)

Mostly, Directive of the European Union covers problems in connection with

consumer protection as well as it is up-to-date which could accommodate with current

situations. The European Union Directives which could be applied with the online air

ticket reservation are the Electronic Commerce Directive, the Unfair Commercial

Practices Directive, the Consumer Rights Directives and the Unfair Terms in

Consumer Contracts Directive.

3.1.1 Right to obtain information

3.1.1.1 The Electronic Commerce Directive 2000/31/EC

The Directive 2000/31/EC on electronic commerce or “E-

Commerce” Directive aims to remove obstacles to cross-border provision of online

34

service or purchasing as well as to provide legal certainty to both business section and

consumer. This Directive was adopted on June 8, 2000.47

This Directive focuses on the contribution to the proper

functioning of the internal market by ensuring free movement in connection with

information society services for e-commerce business sector of the Member Sta.tes48

.

It covers electronic commercial transaction to provide transparency of business

operation and reduce obstacle which might be arisen out of the electronic commerce.

E-Commerce Directive 2000/31/EC stipulates that the

entrepreneur shall render easily, directly and permanently accessible to the recipients

of service at least the following information;49

Name of Service Provider;

Geographic address at which the service provider is

established;

Details of service provider; including, his electronic

mail address, which allow him to be contacted rapidly and communicated with in a

direct and effective manner;

Where the service provider is registered in a trade or

similar public register, the trade register in which the service provider is entered and

his registration number, or equivalent means of identification in that register;

47

Thibault Verbiest, Gerald Spindler & Giovanni Maria Riccio, Study on the Liability

of Internet Intermediaries (Nov. 12, 2007) (Report drafted for the E U Commission on

the state of implementation in the single member States of the e-commerce directive

(2000/31/EC)), available at http://ec.europa.eu/internal_market/e-

commerce/docs/study/liability/final_report_en.pdf. (last visited July 21, 2015) 48

Directive 2000/31/EC of the European Parliament and of the Council of 8 June,

2000 on certain legal aspects of information society services, in particular electronic

commerce, in the Internal Market (Directive on Electronic Commerce) 49

Id.

35

Where the activity is subject to an authorization

scheme, the particulars of the relevant supervisory authority.50

In addition; to propose information, the commercial

communication shall be distinctly identifiable51

as well as the natural or juristic

person on whose behalf of the commercial communication is made.52

3.1.1.2 The Consumer Rights Directive

The recent Consumer Rights Directive 2011/83/EU (“CRD”)

was announced on November 22, 2011.53

It has objective to increase consumer

protection over the European Union by assembling the detached national legislations

for distance selling and off-premises contract including other sorts of contract in a

singular document.54

With reference to the purpose of this Directive, an internal

market of business to consumer (B2C) shall be accomplished, striking the right

equilibrium between consumer protection and the competitiveness of enterprises.55

50 E-Commerce Directive, art. 5. “General information to be provided…1. In addition

to other information requirements established by Community law, Member States shall

ensure that the service provider shall render easily, directly and permanently

accessible to the recipients of the service and competent authorities,…”

51 Id. at art. 6 (a) “In addition to other information requirements established by

Community law, Member States shall ensure that commercial communications which

are part of, or constitute, an information society service comply at least with the

following conditions:(a) the commercial communication shall be clearly identifiable

as such;…”

52 Id. at art. 6 (b). “(b) the natural or legal person on whose behalf the commercial

communication is made shall be clearly identifiable;” 53

Armdt Kunnecke, New Standards in EU Consumer Rights Protection? The New

Directive 2011/83/EU, 1 Eur. Sci. J. (2014), available at

http://eujournal.org/index.php/esj/article/viewFile/2854/2682. (last visited July 11,

2015) 54

Id. 55

CRD, Recital 4-6.

36

In accordance with the characteristic of online air ticket

booking, it is deemed as the distance selling agreement because the agreement is

executed by the parties entering into the agreement through online network where the

parties thereto are in different locations. In this regard, the regulation of distance

selling contract shall be applied with the agreement of online air ticket booking.

Directive on Consumer Rights stipulates that; before entering

into the contract, the entrepreneur shall provide obvious and sufficient information to

consumer as follows;

Features of product or service

Specification of seller or service provider; trade name

or real name;

Geographical address, contact number, email address

which the consumer is able to communicate with the

seller or service provider rapidly and efficiently;

including the address of representative (if any);

Net price of product or service which taxes, fees and

related expenses included. In the event that the net

price cannot be calculated at that time, the method of

calculation shall be indicated;

Payment method, contract performance method and

performance due;

Rights of termination, conditions of termination and

period of execution termination rights;

After-sale service, compensation mechanism and

extrajudicial support;

37

In case of network space limitation; at least, the seller is

confined to provide necessary information; for instance, features of product or

service, seller’s personal information, net price, termination rights and term of

agreement.56

3.1.1.3 The Unfair Commercial Practices Directive 2005/29/EC

The Directive on Unfair Commercial Practice (UCPD or UCP

Directive) is adopted in 2005. It constitutes legislation of the European Union

regulating misleading advertising and other unfair commercial practices in business-

to-consumer (B2C) transactions.57

It applies not only at the marketing stage but

also58

“…during and after a commercial transaction in relation to a product.”59

The UCP Directive defines that any commercial practice shall

be unfair if;

“(a) It is contrary to the requirement of professional diligence and;

(b) It materially distorts or is likely to materially distort the

economic behavior with regard to the product of the average consumer whom it

56

CRD, art. 8. … If the contract is concluded through a means of distance

communication which allows limited space or time to display the information, the

trader shall provide, on that particular means prior to the conclusion of such a

contract, at least the pre-contractual information regarding the main characteristics

of the goods or services, the identity of the trader, the total price, the right of

withdrawal, the duration of the contract and, if the contract is of indeterminate

duration, the conditions for terminating the contract,…” 57

European Commission, Communication from the Commission to the European

Parliament, the Council and the European Economic and Social Committee (2013),

available at http://ec.europa.eu/justice/consumer-

marketing/files/ucpd_communication_en.pdf. (last visited July 18, 2015) 58

Id. 59

See UCPD, art. 3(1).

38

reaches or to whom it is addressed, or of the average member of the group when a

commercial practice is directed to a particular group of consumers.” 60

In accordance with the aforementioned, commercial

performance which is deemed as a deceptive practice; basically, is distort of material

information inducing the consumer to enter into the agreement with the trader which;

without such distort information, the consumer might not decide to execute the

transaction. Information which is deemed as material information is stated below61

;

Subsistence of nature of the product62

General characteristic of the product such as available

amount of product, after-sale service etc.

Net price and price calculation

Detail and right of trader or trader’s representative

Rights of consumer; including refunding right

Furthermore, the unfair commercial performance is regarded

in the Annex of the UCP Directive; 31 forms of unfair practices in total, dividing into

23 types of misleading actions and 8 types of aggressive actions. The unfair

commercial practices in relation to online transaction of air ticket reservation are

listed below;

1) To present a trustworthy mark, quality mark or any

similar mark without required authorization63

. This rule could be applied with the

control of airline booking website where the trust mark has been displayed

exaggeratedly.

60

Id. at art. 5(2). 61

Id. at art. 6. 62

“Product means any goods or service including immovable property rights and

obligation.” (See UCPD, art. 2). 63

UCPD, Annex II (2).

39

2) To claim that the good or service shall be available

during limited period64

causing consumer is forced to enter into transaction

immediately. It could be applied with online air ticket reservation system which the

limited remaining tickets are shown.

3) To provide editorial statement in order to promote

goods or services without making any clear declaration65

.

4) To provide false statement of claim as a feedback

regarding consumed goods or service which the trader represented himself as a

consumer66

3.1.2 Right of Termination

At the present, there is one Directive which is able to be applied in

term of the right of termination; it is the Consumer Rights Directive 2011/83/EU or

CRD. For the distance selling contract or off-premises contracts, the consumer is

entitled to have a period of 14 days to terminate the contract; regardless of the reason

provided or any incurring expense upon such termination.67

3.1.3 Right to enter into fair contractual terms

The Directive on the Unfair Terms in Consumer Contracts

93/13/EEC is the statutory which stipulates scope of contractual terms to be fair to

both parties to the agreement. This Directive also prescribes that the fair contractual

content shall not be the conditions where the parties have no chance to discuss and

negotiate individually; in other words, any contract which is counted as an adhesion

64

Id. at Annex II (7). 65



See CRD, art. 9(1).

40

contract which consumer is not able to amend its conditions. In addition to this, the

Directive also indicates example of unfair contractual terms in the Annex thereof

which some of those can be applied with the nature of online air ticket reservation

service agreement as the following description;

A condition provides the right of termination to the trader to

terminate agreement during unclear period without notifying of reasons.

A condition which grants the trader to be only one party to

amend condition of the contract.

An exclusion clause to limit liability of the trader or trader’s

representative.

An exclusion clause to limit the right to make a complaint to

the court or to legal treatment procedure which specifies that all dispute regarding the

contract shall be meditated by the arbitration.

3.1.4 Fundamental right of aviation passenger as a consumer

The fundamental rights of a consumer who is an aviation passenger

travelling to the country which is a member state of EU or departing from any of EU

member state is preserved in the Regulation No. 261/2004 of the European Parliament

and of the Council.

In the Treaty Establishing European Economic Community (EEC

Treaty), the major aim of the treaty is to establish a common market and stipulate the

41

change of transportation policy under Clause 84(2)68

. Later, the judgment of the

European Court of Justice No. 209-213/84 ruled that the general provision of the EEC

Treaty is applied to the air transportation.69

Subjected to this Regulation, the fundamental rights of consumer

who is an air passenger are preserved regardless of the channel where the consumer

makes an air ticket reservation. The airline which is a business operator shall be liable

to the passenger for the denied boarding, Flight cancellation or long delay flight.

3.1.4.1 Denied Boarding

During the procedure of online air ticket booking; normally,

the operator always provides overbooking. The overbooking is a circumstance where

the air tickets are created and placed for a reservation in a specific volume in excess

of the actual available seats having on the plane because airline believes that some of

passengers shall not present themselves at the time of boarding. Nevertheless, in

certain flights which all passengers who made reservation present themselves for

boarding, the available seats are not enough for all consumers and; in this sense, the

denied boarding is taken placed.

Upon the Regulation (EC) No. 261/2004; Article 4, the

operator is entitled to deny boarding by calling for the volunteers to abandon their

reservations and such volunteer shall receive benefits under the conditions to be

agreed between passenger and operator as a consideration for his abandonment.

68

“The Council may acting by a qualified majority decide whether to want procedure

appropriate provisions may be laid down for sea and air transport.” (EEC Treaty cl.

84(2)). 69

Jacqueline Dutheil de la Rochère, Contribution of the European Court of Justice to

the Implementation of the EEC Treaty in the Field of Air Transport: Past and Future,

Air and Space Law, 161-163 (1992) as cited in Ananchai Sakdejayont, Protection of

Airline Passenger Rights: The Case of Thailand (1983) (LL.M. thesis, Thammasat

University).

42

FIGURE 3.2: Volunteer Form for Voluntary Denied Boarding

Source: Delta Airline http://upgrd.com/images/upload/image/blog/s/Screen-shot-

2011-03-28-at-3_20_11-PM.png

Furthermore, though there is no volunteer consumer for

denied boarding, the airline trader is able to conduct denied boarding in accordance

with Article 4(2) of the Regulation.70

In the event where the denied boarding is

occurred, the air carrier shall return all fare and expenses charged to the denied

consumer and pay compensation to customer whose seat was denied.

In addition to this; with reference to Article 4(3) of the

Regulation No. 261/200471

, the air carrier shall assist passenger who is refused to

board against his will upon Article 8 and 9 thereof. In summary, the trader shall

propose the following options to denied passenger;

70

“If an insufficient number of volunteers come forward to allow the remaining

passengers with reservations to board the flight, the operating air carrier may then

deny boarding to passengers against their will.” (Regulation (EC) No. 261/2004, art.

4(2)). 71

“If boarding is denied to passengers against their will, the operating air carrier

shall immediately compensate them in accordance with Article 7 and assist them in

accordance with Article 8 and 9.” (Id. at art. 4(3))

43

A reimbursement within 7 days as from the denied

boarding date for a full of air ticket fare. The method of this reimbursement shall be

made in cash, bank order or bank cheques or with signed agreement or shall be made

in form of travel voucher and/or other related service72

or;

A re-routing at a later date upon passenger’s

convenience subjected to the availability of seat73

or;

A free of charge of meals and beverages during waiting

time74

.

An accommodation (if necessary).75

Transportation between airport and hotel

accommodation.76

Two times service for telephone, facsimile or email

service; free or charge.77

3.1.4.2 Flight Cancellation

With respect to the Regulation of the European Union No.

261/2004, in case of flight cancellation; whether the air ticket was booked by normal

channel or by electronic channel, the passenger shall have the following rights;

72

Regulation No. 261/2004, art. 8(1). 73

Id. at art. 8(3). 74

Id. at art. 9(1)(a). 75

Id. at art. 9(1)(b) . 76

Id. at art. 9(1)(c). 77

Id. at art. 9(2).

44

1) The right to be offered the assistance from air carrier78

as

the following;

A reimbursement within 7 days as from the denied

boarding date for a full of air ticket fare. The method of this reimbursement shall be

made in cash, bank order or bank cheques or with signed agreement or shall be made

in form of travel voucher and/or other related service79

or;

A re-routing at the earliest opportunity80

; or

A re-routing at a later date upon passenger’s

convenience subjected to the availability of seat.81

2) The right to be offered the assistance as the following;

A free of charge of meals and beverages during waiting

time82

.

An accommodation (if necessary).83

Transportation between airport and hotel

accommodation.84

Two times service for telephone, facsimile or email

service; free or charge.85

78

Regulation No. 261/2004, art. 5(1)(a). 79

Id. at art. 8(1). 80

Id. at art. 8(2). 81

Id. at art. 8(3). 82

Id. at art. 9(1)(a). 83

Id. at art. 9(1)(b). 84

Id. at art. 9(1)(c). 85

Id. at art. 9(2).

45

3) The right to be compensated from the air carrier as the

following;

▪ EUR 250 compensation for all flights of 1,500 km. or

less86

;

▪ EUR 400 compensation for all flights intra-European

Union of more than 1,500 km. or for all other flights between 1,500 to 3,500 km.87

;

▪ EUR 600 compensation for all flights which do not fall

under the abovementioned conditions.88

Nevertheless, the compensation as stipulated above shall not

be disbursed to the consumer whose reserved flight was cancelled if;

1) The operator informs such cancellation to the consumer at

least 14 days prior to the departure date89

or;

2) The operator informs such cancellation to the consumer 7-

14 days prior to the departure date and proposes re-routing to the consumer provided

that however, the new route shall be departed at least 2 hours prior to the departure

time of the cancelled schedule and the new route shall reach the destination less than

4 hours comparing with the arrival schedule of the cancelled flight90

or;

86

Regulation No. 261/2004, art. 7(1)(a). 87

Id. at art. 7(1)(b). 88

Id. at art. 7(1)(c). 89

Id. at art. 5(1)(c)(i). 90

Id. at art. 5(1)(c)(ii).

46

3) The operator informs such cancellation to the consumer

less than 7 days prior to the departure date but proposes the re-routing to the

consumer with the condition that the new schedule shall be departed at least 1 hour

prior to the departure time of cancelled flight and reach the final destination less than

2 hours comparing with the arrival schedule of the cancelled flight91

.

In response to the aforementioned, we may see that the legal

measures of the European Union regarding flight cancellation are interesting. They

provide step-by-step of measures to heal consumer whose flight was cancelled.

3.1.4.3 Flight Delay

Not only denied boarding, flight cancellation but also flight

delay is the important air transportation problems tending to affect the rights of

consumer. Many consumers miss their flights without their faults while their traveling

purposes are also failed.

Though, the EU Regulation No. 261/2004 does not contain a

definition of ‘flight delay’, the concept may, however, be clarified in the light of the

context in which it occurs. In that regard, it should be recalled, first, that a ‘flight’

within the meaning of Regulation No 261/2004 consists in an air transport operation,

performed by an air carrier which fixes its itinerary (Case C-173/07 Emirates

Airlines [2008] ECR I-5237, paragraph 40)92

. Thus, the itinerary is an essential

element of the flight, as the flight is operated in accordance with the carrier’s pre-

arranged planning.

91

Id. at art. 5(1)(c)(iii). 92

Christopher Sturgeon v. Condor Flugdienst GmbH & Stefan Böck v. Air France

SA, C‑402/07 & C‑432/07 (Bundesgerichtshof & Handelsgericht Wien, Nov. 19,

2009), available at

http://curia.europa.eu/juris/document/document.jsf?docid=73703&doclang=EN (last

visited on Aug. 1, 2015). (last visited July 29, 2015)

47

It is clear furthermore from Article 6 of Regulation No.

261/2004 that the Community legislature adopted a notion of ‘flight delay’ which is

considered only by reference to the scheduled departure time and which implies as a

consequence that, after the departure time, the other elements pertaining to the flight

must remain unchanged. Thus, a flight is ‘delayed’ for the purposes of Article 6 of

Regulation No 261/2004 if it is operated in accordance with the original planning and

its actual departure time is later than the scheduled departure time.93

Second, according to Article 2(l)94

of Regulation No

261/2004, flight cancellation, unlike delay, is the result of non-operation of a flight

which was previously planned. In that regard, cancelled flights and delayed flights are

two quite distinct categories of flights. It cannot therefore be inferred from Regulation

No 261/2004 that a flight which is delayed may be classified as a ‘cancelled flight’

merely on the ground that the delay is extended, even substantially. Consequently, a

flight which is delayed, irrespective of the duration of the delay, even if it is long,

cannot be regarded as cancelled where there is a departure in accordance with the

original planning.95

In these circumstances, where passengers are carried on a flight

whose departure time is later than the departure time originally scheduled, the flight

can be classified as ‘cancelled’ only if the air carrier arranges for the passengers to be

carried on another flight whose original planning is different from that of the flight for

which the booking was made.

93

Id. 94

“operating air carrier" means an air carrier that performs or intends to perform a

flight under a contract with a passenger or on behalf of another person, legal or

natural, having a contract with that passenger” (Supra note 86, at art. 2(1)). 95

Supra note 92.

48

FIGURE 3.3: Flight Delay and Cancellation shown at the airport

Source: http://www.thisismoney.co.uk/money/holidays/article-2271213/How-claim-

EU-flight-delay-compensation-EC-261-2004.html

The European Union is a community which concerns the

consumer protection regarding air transportation. Similarly, the Regulation No.

261/2004 does cover flight delay. It provides curable measures to make up for the

delayed flight as the following;

1) The right to get refund

In case of flight delay more than 5 hours long and the

passenger whose flight was delayed does not wish to travel with this airline

http://www.thisismoney.co.uk/money/holidays/article-2271213/How-claim-EU-flight-delay-compensation-EC-261-2004.html

http://www.thisismoney.co.uk/money/holidays/article-2271213/How-claim-EU-flight-delay-compensation-EC-261-2004.html

49

anymore, the passenger is entitled to receive a refund for any part of unused

booking.96

2) The right to be assisted while waiting the boarding time of

delayed flight.

According to the abovementioned, in the event that the

flight is delayed more than 2 hours, the air carrier shall provide care and proper

assistance while the passenger waits for the new boarding time of the delayed flight.97

In accordance with the EU Regulation No. 261/2004; Article 9, the assistance shall be

composed with98

;

A proper food and drink; in form of vouchers are

acceptable;

An option for communication; frequently provided as a

refunding cost of telephone calls;

An accommodation; in case it is an overnight delay;

A Transportation to and from the accommodation.

96

Civil Aviation Authority, Short-haul delays,

http://www.caa.co.uk/default.aspx?catid=2211&pagetype=90&pageid=15444. (last


Supra note 72. 98

Civil Aviation Authority, supra note 96.

50

The air carrier is obliged to provide the consumer whose flight

is delayed the aforementioned list until the flight is eligible to take off to the

scheduled destination, no matter how long the delay lasts or what has caused it.99

3) The right to be compensated.

The compensation may be claimed against the airline in the

event that the delay is over than 3 hours. The delay period is calculated by the time

that the flight arrives its destination; not a departure time.100

In this regard, the

passenger whose flight is delayed over than 3 hours is entitled to claim at EUR250.

To pay compensation for delay, it is usually paid by cheque or bank transfer. Certain

airline operators may also offer their passenger other options such as travel vouchers

or free travel services instead of the cash compensation; in this occasion, the

consumer are free to choose which suits best and also can insist on a cash

payment.101


of the United Kingdom

To control commercial operation in the United Kingdom; formerly, the

Office of Fair Trading (OFT) played the key role to supervise the enforcement of

laws. The OFT was a government organization being responsible for consumer

protection legislations and relevant measure throughout the UK which has been

99

Id. 100 Civil Aviation Authority, Compensation for short-haul delays,



Id.

51

closed since April 1, 2014.102

At the present moment, the Competition and Market

Authority (CMA); an organization formed on October 2013 by virtue of the

Enterprise and Regulatory Reform Act 2013, aims to ensure that it achieves its

missions to make market work well for consumers, business and economy.103

In the UK, there are several legislations concerning consumer protection

as well as the code of conduct of trader. Each law intends to protect consumer’s

benefit in different way; such as electronic transaction or unfair contract terms etc. In

this regard, the laws and regulations which might be adapted with consumer

protection in connection with online air ticket booking are the Electronic Commerce

Regulation 2002, the Unfair Terms in Consumer Contracts Regulation 1999, the

Consumer Contracts Regulations on Information, Cancellation and Additional

Charges, the Unfair Contract Term Act 1977 and the Fair T5raqding Act 1973.

Other than the abovementioned regulations, the United Kingdom has a

special organization relevant to tourism industry; the Association of British Travel

Agents (ABTA). The ABTA might be named as the largest travel association of the

United Kingdom, standing for tour operators and travel agency.104

This Association

mainly aims to support its members; tourism business, to operate and expand their

businesses efficiently and permanently as well as to help consumer regarding services

trust. Moreover the ABTA also provides the Code of Conduct and the Guidance on

the application of the Code of Conduct in order to interpret the Code of Conduct

which makes tourism industry being more justified.105

102

GOV.UK, Office of Fair Trading,

https://www.gov.uk/government/organisations/office-of-fair-trading. (last visited July

22, 2015) 103

Office of Fair Trading, OFT’s work and responsibilities after 31 March 2014,

http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/ab

out-the-oft/work-and-responsibilities#named2. (last visited July 27, 2015) 104

ABTA, About ABTA, http://abta.com/about-abta. (last visited July 22, 2015) 105

Id.

52

In this occasion; to study rules and regulations of the United Kingdom to

be applied with the online air ticket reservation, general laws, regulations and Code of

Conduct shall be taken into account as the following;

3.2.1 Right to obtain information

3.2.1.1 The Electronic Commerce Regulation 2002

The Electronic Commerce Regulation 2002 determines

generally that in case of distance selling contract shall provide the access of

information in a form and manner which is easily and directly composing of the

subsequent list106

;

Trader’s name;

Geographical address of trader;

Communication details i.e. email address;

Business registration number; in case the trader is registered;

106

See Electronic Commerce Regulation 2002, art 6. “A person providing an

information society service shall make available to the recipient of the service and

any relevant enforcement authority, in a form and manner which is easily, directly

and permanently accessible, the following information—

(a)the name of the service provider;

(b)the geographic address at which the service provider is established;

(c)the details of the service provider, including his electronic mail address, which

make it possible to contact him rapidly and communicate with him in a direct and

effective manner;

(d)where the service provider is registered in a trade or similar register available to

the public, details of the register in which the service provider is entered and his

registration number, or equivalent means of identification in that register;…”

53

Likewise, in case of such information provided is a proposal

of goods or service, the net price thereof; taxes and other fees included, and shall not

be a misleading presentation.

In the event where the trader provides a sale promotion,

discount or gives any premium to customer, the trader shall ensure that its mercantile

communication shall be easily accessible and shown clearly as well as

unambiguously.107

Upon customer’s consideration, if all presented information is

taken into account and the customer makes his decision to enter into the transaction;

before the process of execution, the trader shall inform relevant information regarding

technical procedure including terms and conditions of the agreement. In doing this,

the trader shall make the consumer access these information easily and the customer

is able to keep the said information as reference.108

3.2.1.2 The Consumer Contracts Regulation 2013 on

Information, Cancellation and Additional Charges

Due to online air ticket booking is a distance selling contract,

rule of information presentation before the formation of contract shall be considered.

107

See Id. at art. 7. “A service provider shall ensure that any commercial

communication provided by him and which constitutes or forms part of an

information society service shall—

(a)be clearly identifiable as a commercial communication;

(b)clearly identify the person on whose behalf the commercial communication is

made;

(c)clearly identify as such any promotional offer (including any discount, premium or

gift) and ensure that any conditions which must be met to qualify for it are easily

accessible, and presented clearly and unambiguously; and

(d)clearly identify as such any promotional competition or game and ensure that any

conditions for participation are easily accessible and presented clearly and

unambiguously.”

108 See Id. at art. 9.

54

In this regard, the trader shall provide information to consumer in a clear and

intelligible manner109

as listed below;

Appearance of goods or service;

Identification of the trader;

Trader’s address and the way of communication such as

telephone number or facsimile number or any other method which the consumer is

able to contact the trader easily and efficiently;

Net price of goods or service; taxes included. In case

the calculation could not be made in advance, the calculation process must be clearly

presented;

Delivery cost and other expense;

Details of payment, performance details and delivery

period;

Claim policy of the trader;

Period of right of termination;

After-sale provision and guarantee;

Technical protection in case information provided

through the digital content;

Extrajudicial claim and dispute resolution.110

With reference to Article 13 of the Consumer Contracts

Regulation 2013 on Information, Cancellation and Additional Charges, the above

required information shall be deemed as an integral part of the agreement. In case of

information change, it shall be made prior to the formation of contract.111

109

See Information, Cancellation and Additional Charges, Consumer Contracts

Regulation 2013, art. 13, ch.1, pt. II. 110

See Id. at Sched. 2. 111

Supra note 65.

55

In the event that such distance agreement is made through

electronic means, the trader shall warn customer by showing information nearby the

press button that; at the time of clicking, the customer shall be bound for payment;

unless otherwise, the consumer shall not be bound by the contract or such purchase

order. Moreover, the trader shall insure that his website through which the agreement

is executed points distinctly and readable; especially at least the ordering

procedure.112


The right of termination of consumer is set forth only in the

Consumer Contracts Regulations 2013 on Information, Cancellation and Additional

Charges; nevertheless, in case trader is a member of the Association of British Travel

Agents, such trader shall operate his business in line with the ABTA Code of

Conduct.

3.2.2.1 The Consumer Contracts Regulations 2013 on

Information, Cancellation and Additional Charges

This legislation provides consumer the period of time for

exercising right of termination without any reason; called ‘Cooling-Off Period’ This

regulation also gives an opportunity for consideration of pros and cons. In accordance

with regulation 30 (2) of the Consumer Contracts Regulations 2013 on Information,

Cancellation and Additional Charges113

, the consumer is entitled to terminate the

contract within 14 days as from the execution date thereof.

112

See supra note 109 at art. 14(6).“…(6) The trader must ensure that any trading

website through which the contract is concluded indicates clearly and legibly, at the

latest at the beginning of the ordering process, whether any delivery restrictions

apply and which means of payment are accepted.” 113

If the contract is— (a) a service contract, or (b) a contract for the supply of digital

content which is not supplied on a tangible medium, the cancellation period ends at

the end of 14 days after the day on which the contract is entered into.

(Regulation 30 (2)).

56

3.2.3 Right to enter into fair contractual terms

In the United Kingdom, there are 3 main laws supervising on

contractual terms as set forth below;

3.2.3.1 The Unfair Contract Terms Act 1977

Due to the fact that the parties to commercial contract usually

handle their insecurity by providing an exemption clause into the contract stipulating

one or both parties’ liability is circumscribed114

which certain provisions are unfair to

the party thereto. Thus, the Unfair Contract Terms Act 1977 (UCTA) was announced

on 1977, it places upon statutory limitation on liability avoidance for negligence,

breach or other violation of contract provision whatsoever by way of exclusion

clauses stated in business contracts115

. This Act applies not only to consumer

transactions but also to several business to business (B2B) transactions.116

In the

other word, the UCTA is related to exclusion clause where the unfair exemption

clause is unenforceable. It prohibits certain exclusion clauses and permits the

existence of others in the event that they could satisfy the criterion that they are fair

and reasonable subjected to the ‘reasonableness test’117

as defined in Section 11 of

UCTA118

.

114

Rob Cruise, Exclusion Clause: Top Drafting Tips and Recent Development,

http://www.shoosmiths.co.uk/client-resources/legal-updates/Exclusion-clauses-Top-

drafting-tips-recent-developments-4903.aspx. (last visited July 24, 2015) 115

Id. 116

Richard Christou (Solicitor (M.A. Cantab.)), Boilerplate: Practical Clauses 132

(4th

ed. 2005). 117

Id. 118

“In relation to a contract term, the requirement of reasonableness for the purpose

of this Part of this Act, Section 3 of Misrepresentation Act 1967 and Section 3 of the

Misrepresentation Act (Northern Ireland) 1967 is that the term shall have been a fair

and reasonable one to be included having regard to the circumstances which were, or

ought reasonably to have been, known to or in the contemplation of the parties when

the contract was made.” (UCTA § 11(1)).

57

The exclusion or limitation of liability includes any arrangement

which restricts liability of the party who has more bargaining power or any

arrangement that makes either party falls under harder condition as well as any

exemption clause that limits rights or remedy of the party having less bargaining

power.

Subject to the contents set forth in UCTA, the control of seeking to

benefit from the exclusion clause has been stated in 2 methods;

1) Strict unenforceability of exemption clause

Certain exemption clauses are strictly prohibited such as,

exemption clause in case of death or personal injury arising from the negligence.119

2) Requirement of reasonableness of exemption clause

Certain exemption clauses are required to be considered under

reasonableness which means these kinds of exemption clauses could not be put in the

contract unless they meet the reasonableness requirement.

To consider whether the exclusion clause meets the requirement

of reasonableness, it must be contemplated by circumstance which the parties to the

contract acknowledged or should have acknowledged at the execution moment;

therefore, the circumstance occurred during liability, loss or damage period does not

affect to the reasonableness.120

Essentially, these clauses are exemptions for breach of

agreement as the following;

119

See UCTA 1977 art. 2(1). “A person cannot by reference to any contract term or

to a notice given to persons generally or to particular persons exclude or restrict his

liability for death or personal injury resulting from negligence…” 120

See Supra Note at 118.

58

In case of loss or damage which is not death or personal

injury, neither person can restrict or exclude his liability resulting from negligence.121

Any exclusion clauses for breach of agreement incurred

by the drafting party.122

Any exclusion clause in order to provide a performance

upon agreement substantial different from which is expected to be.123

Nonetheless; in consideration whether the abovementioned

exclusion clauses which are the limitation of liability are deemed as unfair contract

terms, the unfair measurement shall be taken into account as listed below124

;

Bargaining power of the parties;

Whether the party of the contract is convinced to enter

into the transaction or has any other opportunity to enter into the same kind of

contract with other person without surrendering to the same contract terms;

121

See Id. at art. 2(2). “In the case of other loss or damage, a person cannot so

exclude or restrict his liability for negligence except in so far as the term or notice

satisfies the requirement of reasonableness.” 122

See Id. at art. 3(2)(a). “As against that party, the other cannot by reference to any

contract term— (a)when himself in breach of contract, exclude or restrict any liability

of his in respect of the breach…”

123 See Id. at art. 3(2)(b).

124 พนย ณ นคร, กฎหมายวาดวยขอสญญาไมเปนธรรม: แนววเคราะหใหมเชงเปรยบเทยบ [Unfair

Contract Law: A Comparative Analysis], 30 วารสารนตศาสตร ธรรมศาสตร [TU L. J.]

572 (2000).

59

Whether the party of the contract acknowledged or

should acknowledge the existence and scope of contract terms.125

3.2.3.2 The Unfair Terms in Consumer Contracts Regulations 1999

The Unfair Terms in Consumer Contract Regulations 1999 is

a statutory relating the unfair contractual term aiming to protect the right of consumer

which became effective on October 1, 1999 in order to comply with the Directive on

Unfair Terms in Consumer Contract 1993 ruled by the European Union.126

This Regulation is applied to unfair adhesion contract between

the parties causing imbalance of rights and obligations upon the contract; especially, it

causes damage to consumer. Similarly, this Regulation is used for supervising a

boilerplate agreement entirely prepared by the party having preponderant bargaining

power and offers to the weaker party on a ‘take it’ or ‘leave it’ basis. This kind of

agreement provides little or none of opportunity to negotiate the terms. 127

The

consumer has no right to make any decision on materiality of contractual term.

Subject to the Regulations, the unfair contractual term

indicated in the contract shall be accessed and price of good or service charge must be

shown tangibly. In the event of any doubt concerning the terms, it shall be interpreted

in way of consumer’s benefit.128

125

Id. 126

Ewan McKendrick, Contract law 161 (8th

ed. 2009). 127

สรวศ ลมปรงษ, supra note 26. 128

See Unfair Terms in Consumer Contracts Regulations 1999, art. 6.

60

In addition to this, the effect of unfair term is legislated in

Section 8 of the Regulations129

. Only the unfair term concluded in the agreement

shall not bind to the consumer. If the contract could exist without such unfair terms,

the remaining contractual terms still bind the parties thereto.



As mentioned earlier; from time to time, the airlines may allow

the booking for more passengers onto a flight than the available seats set on the plane.

Despite having the air ticket was already booked; the airlines may be unable to carry

all passengers, this means that occasionally there is excess passenger attempting to

check in for the same flight. As a result, some passengers may be asked or forced to

relinquish their seats.130

Due to the United Kingdom is a member state of the European

Union; thus, the EU Regulation No. 261/2004 is adopted and applied with the denied

boarding.131

If any passenger volunteers to be bumped; in this sense, the

compensation shall be depended upon the mutual agreement between the passenger

and air carrier.132

However, in case the passenger is mandatory denied boarding, such

129

Section 8 (1) An unfair term in a contract concluded with a consumer by a seller

or supplier shall not be binding on the consumer.

(2) The contract shall continue to bind the parties if it is capable of

containing in existence without the unfair term. 130

Civil Aviation Authority, Your rights when you are bumped from a flight,

http://www.caa.co.uk/default.aspx?catid=2211&pageid=15458. (last visited July 18,

2015) 131

Supra note 70. 132

Supra note 120.

61

passenger shall be compensated as long as checking-in on time.133

In this regard;

with reference to the Regulation No. 261/2004, the level of compensation depends on

the length of the flight including the timings of the alternative flight which the airline

offers to the denied boarding passenger as stated below;

1) For short-haul flight less than 1,500km134

.

If the offered flight is delay less than 2 hours

from the denied boarding flight, the passenger is able to claim for EUR 125.

If the offered flight is delay more than 2 hours


2) For medium-haul flight between 1,500-3,500 km.; or,

the flights in the European Union boundary which is exceed 1,500 km.135

If the offered flight is delay less than 3 hours


If the offered flight is delay more than 3 hours


3) For long-haul flight more than 3,500km.136

If offered flight is delay less than 4 hours from

the denied boarding flight, the passenger is able to claim for EUR 300.

133

Id. 134

Supra note 72, at art. 7(2)(a). 135

Supra note 72, at art. 7(2)(b). 136

Supra note 72, at art. 7(2)(c).

62

If offered flight is delay more than 4 hours from

the denied boarding flight, the passenger is able to claim for EUR 600.

The above compensation is usually paid by cheque or bank

transfer. Certain operators may also offer their denied boarding passenger an

alternative such as travel vouchers or free travel services instead of the cash

compensation; in this occasion, the consumer are free to choose which suits best and

also can insist on a cash payment.

Additionally, in case of denied boarding; no matter whether

by volunteer or mandatory to be denied, the airline must provide an alternative flight

or a refund, as described below;137

Alternative Flight: This is called ‘Re-Routing’. The

denied passenger is entitled to select the flight suitable with his schedule whether

flying as soon as possible or at a later date. In case the passenger chooses ‘flying as

soon as possible’, the air carrier is obliged to provide care and proper assistance while

the passenger waits for the re-routing flight138

e.g. food, drink, communications and

accommodation; in case of staying overnight.

Refund: In case of denied boarding and the passenger

does not wish to travel, the passenger have the right to get a refund for all parts of the

tickets that he have not used. For instance, if the consumer booked a return-flight and

was denied boarding for the outbound leg, the passenger is entitled to receive full cost

of return ticket from the air carrier.

137

Id. 138

Supra note 72.

63


Due to the United Kingdom is a member state of the European

Union; thus, the EU Regulation No. 261/2004 is applied with the situation of flight

cancellation. Under the EU law, all passengers have significant rights on many flights

to, from or within the European Union; regardless of the channel where the air-ticket

is reserved—online booking or normal reservation.139

In the event that the scheduled flight is cancelled, the air

carrier is entitled to notice the consumer at least 14 days prior to the departure date

upon the flight booking schedule140

; unless otherwise, the consumer whose flight was

cancelled has the right to get a refund from the air carrier or to be compensated in

accordance with EU Regulation No. 261/2004. In summary, the consumer has the

following rights;


In case of flight cancellation and the passenger whose flight

was cancelled does not wish to travel with this airline anymore, the passenger is

entitled to receive a fully-refund.141

It means if the said passenger booked the return

flight and the outbound-leg is revoked, the passenger shall be claimed for all cost of

his return ticket from the air carrier.142

139

Supra note 120. 140

Supra note 89. 141

Civil Aviation Authority, Your rights when a short-haul flight is cancelled,



Id.

64

2) The right to be offered an alternative flight from the air

carrier (‘Re-routing’)

If the passenger whose flight was cancelled still wishes to

travel, the air carrier is obliged to propose an alternative flight. The passenger is

entitled to select the flight suitable with his schedule whether flying as soon as

possible or at a later date.

3) The right to be assisted while waiting the new flight

According to the abovementioned, in case the passenger

chooses ‘flying as soon as possible’, the air carrier shall provide care and proper

assistance while the passenger waits for the re-routing flight143

e.g. food, drink,

communications and accommodation; in case of staying overnight.


In this sense, the distance of the cancelled flight is

significant criteria to indicate the amount of the compensation144

as the following;

For short-haul flight less than 1,500 km.

(i) Less than 7 days of the notice of cancellation, the

passenger could claim compensation based upon the schedule of the new offered

flight;

143

Supra note 72. 144

Id.

65

o If the new offered flight arrives more than 2

hours after the cancelled flight, the compensation shall be claimed at EUR250 no

matter what time it departs.145

o If the new offered flight takes off more than 1

hour before the cancelled flight and arrives less than 2 hours after it, the compensation

shall be claimed at EUR125.146

(ii) 7-14 days of the notice of cancellation, the


flight;


hours after the cancelled flight, the compensation shall be claimed at EUR250.147


hours before the cancelled flight, and arrives more than 2 hours after it, the

compensation shall be claimed at EUR250.148


hours before the cancelled flight, and arrives less than 2 hours after it, the


For medium-haul flight between 1,500-3,500 km.

145

Supra note 128. 146

Id. 147

Id. 148

Id. 149

Id.

66



flight;







(ii) 7-14 days of the notice of cancellation, the


flight;





hours before the cancelled flight, and arrives 3 to 4 hours after it, the compensation


150

Civil Aviation Authority, Your rights when a medium-haul flight is cancelled,



Id. 152

Id. 153

Id.

67




For long-haul flight more than 3,500km.



flight;







(iii) 7-14 days of the notice of cancellation, the


flight;




154

Id. 155

Civil Aviation Authority, Your rights when a long-haul flight is cancelled,



Id. 157

Id.

68




Nevertheless, compensation for flight cancellation arising

from any event beyond the control; for example, extreme water, employee strike or

other extraordinary circumstances are not eligible to claim.159

The definition of the

‘extraordinary circumstances’ is defined on June 11, 2014. The Court of Appeal

rendered a decision in the Jet2 v Huzar160

case which has clarified on what the

definition of extraordinary circumstances means in relation to technical problems. The

decision determined that the key issue is what caused the technical problem. If the

cause was not something out of the ordinary, for example the failure of a component

or wear and tear, then it would not be an extraordinary circumstance.


Similarly, the flight delay in the United Kingdom falls under

the EU Regulation No. 261/2004. In conclusion, the consumer’s rights are protected

as stipulated below;


In case of flight delay more than 5 hours long and the

passenger whose flight was delayed does not wish to travel with this airline

158

Id. 159 Supra note 128. 160

The Supreme Court, Permission to appeal decisions,

https://www.supremecourt.uk/news/flight-delay-compensation-pay-tv-retailers-in-

administration.html. (last visited July 27, 2015)

69

anymore, the passenger is entitled to receive a refund for any part of unused

booking.161

2) The right to be assisted while waiting the boarding time of

delayed flight.

According to the abovementioned, in the event that the

flight is delayed more than 2 hours, the air carrier shall provide care and proper

assistance while the passenger waits for the new boarding time of the delayed

flight.162

In accordance with the EU Regulation No. 261/2004; Article 9, the

assistance shall be composed with163

;

A proper food and drink; in form of vouchers are

acceptable;

An option for communication; frequently provided as a

refunding cost of telephone calls;

An accommodation; in case it is an overnight delay;

A Transportation to and from the accommodation.

161

Civil Aviation Authority, Short-haul delays,

http://www.caa.co.uk/default.aspx?catid=2211&pagetype=90&pageid=15444. 162

Supra note 72. 163

Civil Aviation Authority, Care and assistance for short-haul delays, http://www.caa.co.uk/default.aspx?catid=2211&pagetype=90&pageid=15445. (last

visited July 29, 2015)

70

The air carrier is obliged to provide the consumer whose flight

is delayed the aforementioned list until the flight is eligible to take off to the

scheduled destination, no matter how long the delay lasts or what has caused it.164


The compensation may be claimed against the airline in the

event that the delay is over than 3 hours. The delay period is calculated by the time

that the flight arrives its destination; not a departure time.165

In this regard, the

passenger whose flight is delayed over than 3 hours is entitled to claim at EUR250.

To pay compensation for delay, it is usually paid by cheque or bank transfer. Certain

airline operators may also offer their passenger other options such as travel vouchers

or free travel services instead of the cash compensation; in this occasion, the

consumer are free to choose which suits best and also can insist on a cash

payment.166

164

Id. 165 Civil Aviation Authority, supra note 100. 166

Id.

71

CHAPTER 4


TICKET BOOKING UNDER THAI LAW

At the present, Thailand has none of direct legislation or measure in

connection with consumer protection on the online air-ticket booking. Thus, general

laws and regulation shall be applied with this matter. Although, Thailand has the Civil

and Commercial Code where the legal transaction and contract law and the law of

torts are contained, it is none too suitable to be adapted with consumer protection

since the principle of judicial act and contract law is based upon the principle of

freedom of contract which is appropriate once the parties to the contract are equal

bargaining power; therefore, it is not appropriate to be applied with the contract

executed between trader and consumer.167

Moreover, in case of filing a lawsuit, it

shall be conducted in accordance with the Civil Procedure Code which the costs shall

be bear upon the consumer while the accusation system is based upon the equality of

the parties to the agreement.168

Thereby; to solve these problems, it is necessary to

apply concerning existing laws with the consumer protection regarding online air-

ticket booking namely the Consumer Protection Act B.E. 2522 amended by the

Consumer Protection Act (the 3rd

) B.E. 2556 (CPA), the Direct Sale and Direct

Marketing Act (the 2nd

) B.E. 2550, the Electronic Commerce Act B.E. 2544 amended

by the Electronic Act (the 2nd

) B.E. 2551(ECA) and the Unfair Contract Terms Act

B.E. 2540.

167

อนนต จนทรโอภากร, ปญหาขอขดของในการบงคบใชกฎหมายวธพจารณาคดผบรโภค

[Objections in Enforcement of Consumer Case Procedure], 42 วารสารนตศาสตร ธรรมศาสตร [TU L. J.] 433 (2013). 168

Id.

72

4.1 General Consumer Protection Law

An ordinary law aiming to protect consumer’s benefit in general which is able

to accommodate in order to protect consumer’s right in relation to online air-ticket

reservation are the Consumer Protection Act B.E. 2522 amended by the Consumer

Protection Act (the 3rd

) B.E. 2556 (CPA), the Unfair Contract Terms Act B.E. 2540,

the Direct Sale and Direct Marketing Act (the 2nd

) B.E. 2550 and the Electronic

Commerce Act B.E. 2544 amended by the Electronic Act (the 2nd

) B.E. 2551(ECA)

which are used to preserve both consumer and trader’s rights in certain fields; for

instance, right to obtain adequate information, right to enter into transaction with

trader freely and right of fair contractual terms etc.

4.1.1 Right to obtain adequate information

As the result of the trade liberalization, there is a high competitive in

business; including, the state of social and economic has been changed upon age.

When technology has been dramatically developed, marketing tactics becomes the

significant key play to hit consumer’s attraction. In the other words; to operate

business, new technology and market advertisement is needed to induce consumer’s

attention which will increase profit.

Presently, it is generally accepted that advertisement is a part of the

business process. Advertisement goes hand-in-hand with moving products and

services from rawest of materials to the ultimate consumer. Due to the fact that an

advertisement is a method that the trader usually uses as a communication channel

uttered to targeted customer in order to introduce and promote its product or service.

Similarly, the advertisement is needed for conducting online air ticket

business because; naturally, consumer cannot reach actual appearance and location of

the interested seat before reservation. In this regard, the trader often proposes

exquisite information including promotion price to get customer’s attraction.

73

However, trader always discloses and shows only the positive or strong point while

concealing several weak points to consumer.169

Consequently, to provide the right to obtain adequate information to

consumer is deemed as one of the consumer protection measure since consumer shall

take the sufficient information into consideration for making decision.

4.1.1.1The Consumer Protection Act

The Consumer Protection Act B.E. 2522 amended by the

Consumer Protection Act (the 3rd

) B.E. 2556 (CPA) is the common legislation in

controlling presentation of information and advertisement in general. CPA shall not

apply with any matter subjected to other specific law or with any advertisement

through any media channel where the special law is applied. This Act protects

consumer’s right to obtain adequate information by determine guideline of

information unfairly proposed as well as prescribe scope of power in connection with

advertising control in form of a committee; namely, advertising committee.170

An advertisement upon CPA is an activity utilized by the

trader; mainly aiming for commercial purpose, in order to communicate with and

induce customer to purchase its product.171

With reference to the definition defined in

Section 3 of CPA, an advertisement means “any action conducted by whatever

methods creates a statement to be seen or acknowledge by a person for commercial

169

ศรสภางค แจงสวาง, บทบาทของสานกงานคณะกรรมการคมครองผบรโภคในการกากบดแลดานการโฆษณาสนคาและบรการ [Role of OCPB in Regulation of Goods and Services

Advertising] 20 (1997). 170

ไพโรจน อาจรกษา, โฆษณาอยางไรใหถกตองและถกใจ [Lawful and Favorable

Advertisement] 17 (2001). 171

Id.

74

purpose.”172

; hence, if any advertisement is lack of commercial intention, it is not

deemed as an advertisement upon CPA.

To conduct online air ticket selling, information mostly

presented is general data and detail of flight schedule including popularity ordering by

using symbol pictures. This is not only information providing but also a proposal in

form of an advertisement because its objective focuses on attracting consumer to

make an air ticket reservation through website which is commercially benefit to

trader.173

Thereby, an advertisement or information provided through an electronic

mean is fallen under the CPA.

In accordance with the content stipulated in CPA, neither

advertisement shall be composed of unfair term nor which might affect to public

society; notwithstanding such content is a statement relevant to origin, condition,

quality or description of product or service as well as the delivery, procurement or

usage thereof.174

The statements which shall be counted as unfair statement or may

be cause effect to public society are as the following;175

(1) A false or exaggerated statement;

(2) A statement which might create misunderstanding in

material element of product or service; notwithstanding it refers to any academic

report, statistics or others which is false or exaggerated;

172

See CPA § 3. 173

Supra note 86 174

See CPA § 22. “ An advertisement may not contain a statement which is unfair to

consumers or which may cause adverse effect to the society as a whole; that is,

notwithstanding such statement concerns with the origin, condition, quality or

description of goods or services as well as the delivery, procurement or use of goods

or services….” 175

Id.

75

(3) A statement which directly or indirectly incites unlawful or

immoral action or which damages national’s reputation;

(4) A statement which produces public disunion;

(5) Other statement as set forth in the Ministerial Regulation.

4.1.1.2 The Direct Sale and Direct Marketing Act

In accordance with the explanation specified in Chapter 2

hereof, e-commerce is a trading operation which purchasing procedure including

marketing action, buy and sell or payment is made through an electronic system and

after-sale service is provided by using electronic for data processing and digital

information transmission. In this regard, online air ticket booking is also deemed as

the operation of direct marketing in accordance with the Direct Sale and Direct

Marketing Act B.E. 2545 (amended by the Direct Sale and Direct Marketing Act B.E.

2550); Section 3 which defines meaning of ‘Direct Marketing’ that it refers to the

marketing of goods or services in a manner of communicating information for the

sales of goods or services directly to the consumer at a distance and expecting such

consumer to respond and purchase the goods or services from the direct marketing

operator.176

According to the given definition, it is implied that online air ticket

booking is an advertisement as well as a proposal of seller’s product information to

induce the customer to purchase product which is a marketing activity operated

through electronic channel; in addition, this is the channel where the customer is able

to purchase product which the sale agreement is created.

For the purpose to protect benefit of consumer who is

advertised, the Direct Sale and Direct Marketing Act B.E. 2545 amended by the

176

Supra note 15.

76

Direct Sale and Direct Marketing Act (the 2nd

) B.E. 2550 stipulates that; in case of

information showing, trader shall conform to the regulation stated in the ministerial

regulation and; at least, the information shall be composed of177

;

(1) Name and address of trader;

(2) Details of product or service;

(3) Price of product or service;

(4) Delivery charge and delivery detail;

(5) Delivery time;

(6) Guarantee statement;

(7) Return or redemption policy in case the consumer

exercises his right of termination.

According to an advertisement is enclosed in the website for

online air ticket reservation desire to induce the consumer to make a reservation;

therefore, trader shall present information as specified by laws. Nonetheless; at the

present, specific ministerial regulation has not yet been enacted, general provisions of

CPA is applied.178

In addition to this; with reference to Section 30 of the Direct

Sale and Direct Marketing Act B.E. 2545 amended by the Direct Sale and Direct

Marketing Act (the 2nd

) B.E. 2550, trader in direct sale is subjected to submit

purchasing document to consumer. The Purchasing document shall be in Thai

language clearly consisting of parties’ names, execution date, delivery date and right

of termination.179

177

See Direct Sale and Direct Marketing Act B.E. 2545 § 28, amended by Direct Sale

and Direct Marketing Act (2nd

) B.E. 2550. “The information used in the offering of

goods or services of the direct marketing operator shall be as stipulated in the

Ministerial Regulations.” 178

See Id. at § 29. 179

See Id. at § 30.

77


4.1.2.1 The Direct Sale and Direct Marketing Act B.E. 2545

amended by the Direct Sale and Direct Marketing Act (the 2nd

) B.E. 2550.

Right of termination or termination is only set forth in the

Direct Sale and Direct Marketing Act B.E. 2545 amended by the Direct Sale and

Direct Marketing Act (the 2nd

) B.E. 2550. This act provides an exclusive right to

terminate the contract without any reason given namely called “Cooling-Off Period”.

A cooling-off period180

is an interval after execution of purchasing contract where the

parties already agreed and entered into purchasing transaction and during this period,

the parties could terminate contract without loss. In other words, it is a period in

which the party to the agreement is allowed to reconsider and change his mind

regarding the agreement which he has already signed.

Owing to the online air ticket reservation is an electronic

commerce which is also a direct marketing business which customer could not

recognize actual subjected product, the customer only considers upon provide

information. The criteria of termination in this matter shall be composed of the

following;

(1) The termination shall be made in writing;

(2) The termination shall be conducted within 7 days as

from the receiving date of product or service; and

180

Cambridge Dictionaries Online, cooling-off period,

http://dictionary.cambridge.org/dictionary/british/cooling-off-perio (last visited July

29, 2015)

78

(3) The terminating intention shall be expressed to the

trader.181

In this regard; upon the expression of terminating intention as

described above, trader shall return money paid for product or service in full to the

consumer within 15 days as from the receiving date of the termination letter.182

However; due to air ticket booing through online network is a

service purchasing contract which; if the consumer exercises his termination right

before the service is provided, the contract could be terminated. In case the service

was already provided or the consumer had already travelled, the contract could not be

terminated; otherwise, it does not fair to the trader.

4.1.2.2 Thai Civil and Commercial Code

Not only the right of termination is set forth in the specific

law—the Direct Sale and Direct Market Act B.E. 2540 but the right of termination is

also stipulated in the general civil law like ‘Civil and Commercial Code’ (CCC).

In Thai Civil and Commercial Code, Book II, Title II, Chapter

IV, the right of termination is specified distinctively. Normally; according to Section

387183

, in the event that either party of the contract fails to perform the duty

thereunder, the other party shall determine the due time of duty’s performance and

inform the defaulting party to perform the duty upon the contract.

181

See supra note 177 at § 33. 182

See supra note 177 at § 36. 183

“If one part does not perform the obligation, the other party may fix a reasonable

period and notify him to perform within that period. If such party does not perform,

the other party may rescind the contract.” (CCC § 387).

79

However, in case of denied boarding, flight delay and flight

cancellation where the contract is already formed and the period of performance upon

the contract which the air carrier has to perform is already set. In this regard, the flight

schedule is deemed as the main objective of the contract in accordance with CCC

Section 388 184

because the consumer who enters into the online air ticket booking

agreement wishes his flight will be taken off punctually and he will arrive his booked

destination on time for achieving of transportation purpose—no matter for business or

travelling purpose. In this occasion, it might be implied that the online air ticket

booking agreement is deemed as the contract where its objective could be

accomplished only by performance of the parties at a fixed time in accordance with

CCC section 388185

, the other party may terminate the contract without prior

notification. Thus, in the event that denied boarding, flight delay, or flight

cancellation is occurred and makes the passenger could not achieve his traveling goal;

for instance, the passenger had made air ticket reservation for his business

appointment but the flight was delayed and the appointment time has been already

passed. In this situation, such passenger has no need to travel to the destination

anymore; the passenger has the right to termination the agreement.

Upon the termination of the agreement as abovementioned,

the rights between the parties shall be under the CCC section 391.186

Upon the

exercise the right of termination, either party shall be restored to the former status. In

this regard, the air carrier shall return the fare and related expenses to the passenger

who was denied boarding or whose flight was cancelled or delayed. Furthermore, the

184

“If the objective of the contract according to its nature or intention expressed by

the parties thereto could be accomplished only by the performance at a fixed time or

within the fixed period and such time has been passed without the performance of

either party, the other party may terminate the contract without prior notification as

set forth in the foregoing Section.” (CCC § 388). 185

Id. 186

“If either party exercise the right of termination, each party shall be bound to

restore to his former impaired.” (CCC § 391).

80

passenger who exercises the right of termination has the right to claim for other

compensation in accordance with Section 391, the 4th

paragraph.

4.1.3 Right to enter into fair contract terms

4.1.3.1 The Consumer Protection Act

Business which is subjected to the Consumer Protection Act

B.E. 2522 amended by the Consumer Protection Act (the 3rd

) B.E. 2556 (CPA) shall

be a controlled business with respect to contract determined by the Committee on

Contract.187

Nowadays, the online air ticket booking business is not

categorized as a controlled business in accordance with CPA. Nevertheless; according

to procedure of entering into the agreement which consumer fills in a reservation form

,clicks ‘OK’ to bind himself with the clickwrap agreement and trader shall deliver the

consumer an electronic documents which flight booking detail and confirmation

contained. In this regard, the document is a written evidence of contract.

According to the procedure as abovementioned, most of

contractual terms concerning to online air ticket reservation is adhesion contract

which the trader is a party having more bargaining power for describing terms and

conditions without any negotiation.188

Moreover, several conditions in the contract

are written for trader’s benefit only; for example, the right of termination which the

trader is entitled to cancel scheduled flight without notifying customer in advance or

exemption clauses which the trader shall not be responsible for any damage occurred

from the mistake information shown in his online website and etc. It could imply that

187

See CPA § 14(3). 188 ไพโรจน อาจรกษา, ครบเครองเรองคมครองผบรโภคดานสญญา [All About Consumer

Protection-related Contracts] 61 (2000).

81

the agreement regarding online air ticket booking might be announced to be a

controlled business with respect to contract shall be consisted of the following

descriptions;189

(1) The contract shall be composed of the necessary terms

which if they are not stated in the contract, the consumer shall be unreasonable

disadvantage;

(2) The unfair contractual terms are prohibited.

4.1.3.2 The Unfair Contract Term

According to the characteristic of the agreement of online air

ticket booking which is deemed as an adhesion agreement entirely prepared by the

party having preponderant bargaining power and offers to the weaker party on a ‘take

it’ or ‘leave it’ basis. This kind of agreement provides little or none of opportunity to

negotiate the terms.190

It means; even though the disadvantaged party discovers

certain conditions are unacceptable, he cannot make a negotiation for any amendment.

Therefore, there is an academic controversy about the nature of the adhesion

agreement which there are 2 ways of opinion as the following;191

It is a juristic act because its contents are arisen out of

an agreement between the parties of the contract. Even thought contractual terms are

189

See CPA § 35 Bis. “In any business in connection with the sale of any goods or

the provision of services if contract of sale or such contract of service required by law

or the custom to be made in writing, the committee on Contract shall have the power

to provide such business to be a controlled business with respect to contract…” 190

Supra note 26. 191

ศนนทกรณ (จาป) โสตถพนธ, คาอธบายกฎหมายลกษณะซ อขาย แลกเปลยน ให พรอมคาอธบายในสวนของพระราชบญญตวาดวยขอสญญาไมเปนธรรมและกฎหมายใหมทเกยวของ [Explanation of Civil and Commercial Code: Sale, Exchange, Gift] (5

th ed. 2009) as

cited in Suphatthra Ratsamee, Consumer Protection in Electronic Banking (2012)

(LL.M. thesis, Thammasat University).

82

stipulated by the predominant party, the contract is still formed only the offer meets

acceptance. Thereby, the acceptance of the consumer who has freedom to make a

decision shows that the freedom of contract does exist.

The Unfair Contract Term Act B.E. 2540 aims to resolve

unfairness on contractual terms stipulating that the court is authorized to adjust taking

advantage on the contract properly upon court’s discretion.192

Its model law is the

Unfair Contract Term Act 1977 of the United Kingdom having a curable measure for

the problem regarding unfairness of contractual terms which occurred after the

transaction between the trader and consumer was already executed.193

Considering unfair contractual term, type of contract shall be

taken into account whether such contract is subjected to the scope of the Unfair

Contract Term Act. With regard to this, the court is authorized to inspect the

unfairness of contract for;194

(1) Contract between entrepreneur and consumer;

(2) Adhesion contract;

(3) Sell on consignment contract.

Due to the contract of online air ticket booking is both a

contract between entrepreneur and consumer and an adhesion contract. The consumer

192

Supra note 86 193

Supra note 77

194 See Unfair Contract Term Act B.E. 2540 § 4. “The Prime Minister shall take

charge and control the execution of this Act and have the power to appoint an Officer

and issue Ministerial Regulations with regard to the observance of this Act.

Such Ministerial Regulations shall be enforceable upon the publication in the Royal

Gazette.”

83

makes an air ticket reservation through online system for travelling which is a

personal consumption; thus, the court has power to consider the inequity of

contractual term.


Apart from the CPA, Thailand has another important regulation

which provides consumer protection scheme in connection with air transportation

regardless of the method of air ticket booking—it is to say that all passengers’ rights

under the scope of this regulation are preserved even though the passenger makes an

air ticket booking through the online network. It is the Announcement of the Ministry

of Transportation on Protection of Passenger Rights Using Thai Air Carriers’ Service

for Domestic Scheduled Air Services B.E. 2553 (the Announcement).

This Announcement had been enacted by virtue of the Order of the

Revolutionary Council No. 58 dated January 26, 1972, Article 7 which the

Transportation Minister assigned the Department of Air Transportation (currently is

the Department of Civil Aviation) to be the authority to control aviation upon this

Announcement.


First of all, the clarification of the ‘Denied Boarding’ is

required for further analysis. With reference to Section 2 paragraph 6195

, the

definition of denied boarding means a rejection to carry air passenger on a booked

flight indicated in the air ticket even though such passenger have presented himself

and ready to be boarded in accordance with Section 3 hereof; except the circumstance

195

“Denied boarding means a refusal to carry passengers on a flight indicated in the

ticket, although they have presented themselves for boarding under the conditions laid

down in Section 3 ; except where there are reasonable grounds to deny them

boarding, such as a reasons of health, safety, security or inadequate travel

documentation.” (The Announcement § 2, para. 6).

84

where the air carrier is reasonable to deny boarding e.g. the reason of health, safety or

security or inadequate required travel documentation.

In accordance with Section 5 of the Announcement, in case of

denied boarding, the airline shall treat the passenger as stipulated below;

1) Offer options to the passenger between;

Obtain refund for air ticket and related expenses;

fully or partially. In this regard, the airline shall pay the refund only by cash,

banking transfer or cheque196

within 7 days if the passenger purchased air ticket by

cash197

or 45 days in case the ticket was paid by credit card.198

If the air carrier

would like to refund in other method e.g. travel voucher or others instead of cash

redemption, the passenger’s consent is required.199

A re-routing; within the same say or the next day or

any other later day upon passenger’s discretion, for travelling to the destination

specified in the air ticket or any other destination nearly the destination of the flight

which the passenger is denied200

. In case the re-routing changes the destination, the

air carrier shall be responsible for providing transportation to the passenger to go to

the destination where the passenger wishes to travel before denied boarding is

occurred.201

In this occasion, any fee or fare shall not be charged to the

passenger. In case the fare of such re-routing is lower than the fare and related

expenses which the passenger paid for his seat in the denied boarding flight, the

196

The Announcement § 6 (3). 197

Id. at § 6 (3)(a). 198

Id. at § 6 (3)(b). 199

Id. at § 5(1)(a). 200

Id. at § 5(1)(b). 201

Supra note 200 at para. 2.

85

differential shall be returned202

by cash, banking transfer or cheque203

within 7

days if the passenger purchased air ticket by cash204

or 45 days in case the ticket

was paid by credit card.205

Transport the passenger by other appropriate

transportation method to the destination specified in the air ticket or the nearly

destination as soon as possible without any additional charge.206

In case the fare of

such re-routing is lower than the fare and related expenses which the passenger paid

for his seat in the denied boarding flight, the differential shall be returned207

by

cash, banking transfer or cheque208

within 7 days if the passenger purchased air

ticket by cash209


2) Provide assistance to the passenger as the following211

;

Food and drink; free of charge, at the amount

compatible to the waiting time for new schedule.

Communications by any means i.e. telephone, facsimile

or e-mail etc. as proper without additional charge.

202

Supra note 185. 203

Supra note 196. 204

Supra note 197. 205

Supra note 198. 206

The Announcement § 5(1)(c). 207

Supra note 185. 208

Supra note 196. 209

Supra note 197. 210

Supra note 198. 211

Supra note 206 at § 5(2).

86

Accommodation in case the new flight schedule is an

overnight; including transportation between the airport and the accommodation

without any additional charge.


The cancellation of flight may be taken place at any time due

to the airline does not operate the flight at all for a certain reasons. Upon the flight

cancellation, a hundred of passengers miss their destination either for business or

travelling purpose. The Ministry of Transportation perceives these problems then

announced the Announcement as a curable legal measure to protect consumer’s rights

for flight cancellation circumstance.

With reference to Section 2, paragraph 5, it gives definition

that the flight cancellation means a cancellation of any flight of the schedule which

has already been announced including the cancellation of any extra flight212

. In

accordance with Section 5 of the Announcement, the airline shall treat the passenger

as stipulated below;

1) Offer options to the passenger between;

Obtain refund for air ticket and related expenses;

fully or partially. In this regard, the airline shall pay the refund only by cash,



cash214


If the air carrier

212

“Cancellation means a cancellation of any flight of the time table that has already

been announced including the cancellation of an extra flight.” (The Announcement §

2, para. 5). 213

Supra note 196. 214

Supra note 197. 215

Supra note 198.

87

would like to refund in other method e.g. travel voucher or others instead of cash

redemption, the passenger’s consent is required.216

A re-routing; within the same say or the next day or

any other later day upon passenger’s discretion, for travelling to the destination

specified in the air ticket or any other destination nearly the destination of the

cancelled flight217

. In case the re-routing changes the destination, the air carrier

shall be responsible for providing transportation to the passenger to go to the

destination where the passenger wishes to travel before the cancellation is

occurred.218

In this occasion, any fee or fare shall not be charged to the

passenger. In case the fare of such re-routing is lower than the fare and related

expenses which the passenger paid for his seat in the cancelled flight, the differential

shall be returned219


within 7 days if the

passenger purchased air ticket by cash221

or 45 days in case the ticket was paid by

credit card.222




In case the fare of


for his seat in the cancelled flight, the differential shall be returned224

by cash,

216

Supra note 206 at §5(1)(a). 217

Id. at § 5(1)(b). 218

Id. at para. 2. 219

Supra note 185. 220

Supra note 196. 221

Supra note 197. 222

Supra note 198. 223

Supra note 206. 224

Supra note 185.

88



cash226


2) Provide assistance to the passenger as the following228

;

Food and drink; free of charge, at the amount


Communications by any means i.e. telephone, facsimile

or e-mail etc. as proper without additional charge.

Accommodation in case the new flight schedule is an

overnight; including transportation between the airport and the accommodation

without any additional charge.

3) Compensate the passenger in cash at the amount of 1,200

Baht promptly before the passenger departs to the destination; unless otherwise the air

carrier can prove that229

,

The air carrier informed the cancellation including the

option for re-routing or other means of transportation to the passenger at least 3 days

prior to the departure date; or

The air carrier informed the cancellation to the

passenger less than 3 days in the event that the departure date of new flight schedule

225

Supra note 196. 226

Supra note 197. 227

Supra note 198. 228

Supra note 211. 229

Supra note 206 at § 5(3).

89

shall take off before or after the departure date of the cancelled flight and arrives the

destination specified in the air ticket earlier or after the arrival time of the cancelled

flight not over than 3 hours; or

Such cancellation is arisen from the force majeure

beyond the air carrier’s control; for instance, political crisis, whether situation,

security reason or any other circumstances which might affect the safety of the flight.


According to Section 2; paragraph 4 of the Announcement,

the flight delay is defined as a flight which is operated later than the announced

schedule230

. In case of delay, the airline is obliged to treat the passenger whose flight

is delayed as the following description;

1) In case the delay is more than 2 hours but not exceed 3

hours, the air carrier shall231

;

Provide food and drink; free of charge, at the amount


Provide communications by any means i.e. telephone,

facsimile or e-mail etc. as proper without additional charge.

In case the passenger does not wish to wait and travel,

the air carrier shall return all fare and related expenses which the passenger paid for

230

“Flight delay means a flight that operates later than from the scheduled flight

timetable.” (The Announcement § 2, para. 4). 231

Id. at § 4 (1).

90

the delayed flight by cash, banking transfer or cheque232




credit card.234

If the air carrier would like to pay the refund by travel voucher or

other method, the prior consent of the passenger is required.235


hours, the air carrier shall provide food, drink and proper communication similar to

the delay which is more than 2 hours but not exceed 3 hours as aforementioned. In

addition to this, the air carrier shall also offer the passenger to choose an option as the

following;

Receive refund of fare and related expenses in full or in

partial for non-used ticket236

. In this occasion, the air carrier shall return all fare and

related expenses which the passenger paid for the delayed flight by cash, banking

transfer or cheque237

within 7 days if the passenger purchased air ticket by cash238

or

45 days in case the ticket was paid by credit card.239

If the air carrier would like to

pay the refund by travel voucher or other method, the prior consent of the passenger is

required.240

If the air carrier would like to pay the refund by travel voucher or other

method, the prior consent of the passenger is required241

, or;

Re-routing within the same say or the next day or any

other later day upon passenger’s discretion, for travelling to the destination specified

232

Supra note 196. 233

Supra note 197. 234

Supra note 198. 235

Supra note 216. 236

The Announcement § 4 (2) (c)(1). 237

Supra note 196. 238

Supra note 197. 239

Supra note 198. 240

Supra note 216. 241

Supra note 221.

91

in the air ticket or any other destination nearly the destination of the cancelled

flight242

. In case the re-routing changes the destination, the air carrier shall be

responsible for providing transportation to the passenger to go to the destination

where the passenger wishes to travel before the cancellation is occurred.243

In this occasion, any fee or fare shall not be charged

to the passenger. In case the fare of such re-routing is lower than the fare and related

expenses which the passenger paid for his seat in the cancelled flight, the differential

shall be returned244





credit card.247




In case the fare of


for his seat in the cancelled flight, the differential shall be returned249

by cash,



cash251



hours, the air carrier shall treat the passenger similar to the delay which is more than

242

Supra note 236 at § 4(2)(c)(2). 243

Id. at para. 2 244

Supra note 185. 245

Supra note 196. 246

Supra note 197. 247

Supra note 198. 248

Supra note 236 at § 4(2)(c)(3). 249

Supra note 185. 250

Supra note 196. 251

Supra note 197. 252

Supra note 196.

92

3 hours but not exceed 5 hours as aforementioned253

and pay compensation at the

amount of 600 Baht in cash promptly before the passenger departs to the destination;

unless otherwise the air carrier can prove that such delay is arisen from the force

majeure beyond the air carrier’s control; for instance, political crisis, whether

situation, security reason or any other circumstances which might affect the safety of

the flight.254

4.2 An Analysis of Problems concerning Online Air Ticket Booking in Thailand

Online air ticket reservation is a significant channel on transportation business

which is also an important business of tourism industry because it serves convenience

to both entrepreneur and consumer. At the present, this kind of business is widely

expanded; thereby, it is necessary to analyze relevant obstacles which might be

occurred in order to seek proper solutions to promote the business, support trader as

well as protect consumer’s benefit.


To book air ticket through online network becomes popular owing

to the cost of operation which is lower than the normal procedure. Many traders

utilize many tactics to attract customer to enter into transaction. Although the

provision of the Direct Sale and Direct Marketing Act B.E. 2545 amended by the

Direct Sale and Direct Marketing Act B.E. 2550 provides the right of termination that

the consumer is entitled to terminate the agreement regardless of any reason within 7

days as from the execution date, some traders stipulates exclusion clause which does

not allow consumer to terminate the contract after the reservation is completed

because it may cause damage to trader’s benefit or stipulates additional expenses for

253

Supra note 236 at § 4(3)(a). 254

Id at § 4(3)(b).

93

any ticket cancellation where the consumer does not acknowledge the existence of the

provision.

Moreover; as aforementioned in part 4.1.2, in case of denied

boarding, flight delay and flight cancellation which the contract is already formed and

the period of performance upon the contract which the air carrier has to perform is

already set. In this regard, the flight schedule is deemed as the main objective of the

contract in accordance with CCC Section 388 255

because the consumer who enters

into the online air ticket booking agreement wishes his flight will be taken off

punctually and he will arrive his booked destination on time for achieving of

transportation purpose.

Even though the Announcement of the Ministry of Transportation

regarding the Protection of Rights of Passengers using Thai Air Transportation

Service in Domestic Routes Policy stipulates that the specific legal measure aiming to

protect the rights of consumer, the scope of this Announcement shall be taken into

account since the Article 3 thereof specifies that the passenger whose rights to be

protected upon this Announcement shall be a passenger travelling only on domestic

route with Thai air carrier. It means other passengers who booked air ticket with an

international air carrier or with Thai Air Carrier for an international route shall not be

protected under this Announcement. Thereby; upon the author’s opinion, in this event,

the provision of Thai Civil and Commercial Code regarding the right of termination

shall be applied.

255

“If the objective of the contract according to its nature or intention expressed by

the parties thereto could be accomplished only by the performance at a fixed time or

within the fixed period and such time has been passed without the performance of

either party, the other party may terminate the contract without prior notification as

set forth in the foregoing Section.” (CCC § 388).

94

4.2.2 Unfair contract term

Some traders in online air ticket reservation business exploit

advantages incurring from their strong bargaining power to stipulate unfair

contractual terms beneficial to their interest such as exclusion of liability clause which

makes consumer bears on exceeding burden or uncertainty after the execution of

contract in summary as the following;

A provision stated that trader is entitled to terminate the

agreement in any time without any reasonable cause of termination; even though the

consumer does not breach any essential clause i.e. the trader reschedules the flight

that consumer had already made a reservation and paid the ticket price and such

rescheduling makes the selected flight cancelled.

An exclusion that the trader is not responsible for any mistake

of information provided through online network.

A provision that provides the right to amend any provision at

all time.

A provision in connection with the price where the trader is

entitled to adjust the price of air ticket by its own discretion.

4.2.3 Problem on advertising control regarding information provided

for online air ticket reservation

Even though the amendment of CPA recently in 2013 covered

procedure of advertising publication; upon the nature of online air ticket booking,

relevant information are published abundantly inducing consumer to enter into

transaction without deliberating on concealed conditions. Sometimes, it is too late

when the customer realizes the covert condition at the time that he is getting on board.

95

Furthermore; even CPA stipulates that the Committee on Advertising has an authority

to inspect and review contents of information contained in the advertisement, such

control is still based upon the voluntary of trader to request the Committee to consider

and contemplate such advertisement Committee only when the consumer requests.

According to the abovementioned, it assumes that current measure

to control advertisement is indecisive policy. Likewise, making air ticket reservation

through online system is an electronic commerce where trader and customer in any

part of the world is able to access information for executing agreement at all time. In

case the party to the agreement is a foreign trader whose business established by

foreign law, he is not subjected to comply with Thai CPA; in addition, the Committee

on Advertising is not authorized to control such foreign trader. In summary, it is hard

to control the publication of information provided through online network and false

statement is still conducted which might affect to image of transportation business in

Thailand.

4.2.4 Problem on legislation in order to provide the right of termination

to the consumer

Consumer Rights Directive and the Consumer Contract Regulations

2013 on Information, Cancellation and Additional Charges clearly provide right of

termination and cooling-off period for 14 days as from the execution date of the

contract. In this regard, the consumer has an opportunity to reconsider about pros and

cons. For Thailand, the right of termination of the consumer is set forth in Section 33

of the Direct Sale and Direct Marketing Act B.E. 2545where the consumer is entitled

to terminate agreement during 7-days cooling-off period without any additional

expenses. However, this Act does not mention distinctly that the trader has duty to

inform consumer the existence of this right and some traders may exploit from this

loophole to make consumer to be bear on additional expense for termination or; in the

worst case, the consumer has no chance to terminate the contract since he does not

realize the existence of termination right.

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4.2.5 Problem on legislation regarding unfair contractual term

The consumer protect on contract upon the provision of CPA is a

protection of controlled business with respect to contract only. In this regard, the

controlled business shall be supervised by the Committee on Contract who considers

and stipulates details of contract to be used in the controlled business; such as credit

card business or fitness business etc.

As a result of the characteristics of online air ticket booking

business, this business may be controlled as a control business under CPA because it

is a purchasing service through electronic method; nevertheless, it is not yet

categorized as a controlled business. Hence, the Committee on Contract is not

authorized to supervise contents contained therein.

Accordingly, the only one law to handle with unfair contractual term

is the Unfair Contract Term Act B.E. 2540. Subjected to this Act, the court plays a

key role to consider the content by its own discretion; regardless of such business is a

controlled business or not. Nonetheless, this Act also has a weak point that it does not

have a neutral organization to meditate before bringing the dispute to the court.

Thereby, in many cases, consumer often bears unfairness rather than filing the case to

the court due to expensive cost and it will take a long time for court’s consideration.

97

CHAPTER 5

CONCLUSIONS AND RECOMMENDATIONS

5.1 Conclusions

Currently, many Air Travel Consumers face problem regarding online air

ticket reservation service not only direct making reservation through the website of

airline company but also through intermediary channels because of marketing

strategies aiming for commercial benefits of entrepreneur e.g. publication of

information which some are false statement or inequality of contractual terms

stipulated by one party including the operation of online air ticket booking via

electronic network has not distinct control measures. According to problem analysis

in connection with online air ticket reservation, the weaknesses are as the following;

5.1.1 Problem on advertising control regarding information provided for

online air ticket reservation

At the present, Thailand has neither laws nor legal measures in order to

control the information published through internet network. Even if there is a

prescription of unfair advertisement set forth in the CPA, it is a general and uncertain

prescription. Some traders exploit the loophole from the indistinct regulation to

continue false or distorted statement shown in their websites. Moreover, advertising

supervision by the Committee on Advertising upon CPA depends upon the

entrepreneur’s willingness.

5.1.2 Problem on legislation in order to provide the right of termination to

the consumer

According to the Direct Sale and Direct Marketing B.E. 2545, the

consumer is entitled to terminate agreement within 7 days as from the receiving of the

98

purchased product or service which is the decisive right that; normally, the consumer

shall acknowledge and obtain. However; in online air ticket booking service, trader

usually stipulates exemption clause that the air travel consumer is allowed to

terminated the reservation agreement provided that the consumer shall pay

termination charge to the trader. This practical is deemed as an ignorance of

consumer’s right which is already certified by laws.

Even though the Announcement of the Ministry of Transportation


Service in Domestic Routes Policy stipulates that the specific legal measure aiming to

protect the rights of consumer, the scope of this Announcement shall be taken into

account since the Article 3 thereof specifies that the passenger whose rights to be

protected upon this Announcement shall be a passenger travelling only on domestic

route with Thai air carrier. It means other passengers who booked air ticket with an

international air carrier or with Thai Air Carrier for an international route shall not be

protected under this Announcement.

5.1.3 Problem on legislation regarding unfair contractual term

Since the online air ticket reservation service is not a controlled business

with respect to contract, it is not subjected to CPA but subjected to the Unfair

Contract Terms Act B.E. 2540 instead. Any of adhesion agreement shall be subjected

to this Act; nevertheless, this Act also has a weak point regarding filing a complaint to

the court which taking a long time and the consumer shall be bear on all costs.

Furthermore, in the terms and conditions set forth in the adhesion

agreement of many airlines provided in the operator’s website which binds consumer

while online air ticket booking usually contains the additional burden to passenger

(Annex I: Examples of Terms and Conditions). For example, clause 9.2(c) of the

terms and conditions of Thai Air Asia for XJ Flight stipulates that; upon the

cancellation, the air carrier may offer a refund if the air carrier cannot carry the

99

passenger to/from the destination within 48 hours from the scheduled time of

departure. According to this agreement, the conditions of refund is different from the

measure specified by the Announcement of the Ministry of Transportation regarding

the Protection of Rights of Passengers using Thai Air Transportation Service in

Domestic Routes Policy which states that in case of cancellation, the passenger has

the right to get refund in full without any additional charge and conditions.

5.1.4 Problem concerning the Announcement of Ministry of

Transportation regarding the Protection of Rights of Passengers using Thai Air

Transportation Service in Domestic Routes Policy B.E. 2553

With reference to the Announcement of Ministry of Transportation


Service in Domestic Routes Policy B.E. 2553, this Announcement stipulates that the

scope thereof covers merely Thai airlines registered under Thai law and provide

service in domestic routes only. Nonetheless, considering the European Union

Regulation No. 261/2004, this Regulation is enforceable all passengers who travel

from any airport located in the territory of member states including all passengers

who take a trip from any airport situated in any third country to the airport located in

the territory of the member states of this Regulation; unless otherwise such passenger

is compensated or receive other benefits from and is assisted by the air carrier

operates its business in the third country.

Comparing with Thai Announcement in the same issue, Thai

Announcement has narrow scope than EU Regulation and; to protect consumer’s

rights properly, the scope of the Announcement should be taken into account for

amendment.

100

5.2 Recommendations

With reference to the aforementioned analysis regarding legal matters on the

online air ticket booking service, the author would like to propose and suggest

solutions as the following;

5.2.1 To consider the revision of provision set forth in CPA and in Direct

Sale and Direct Marketing Act regarding advertising control on information

published in online network as an advertisement

In accordance with the problems mentioned above, specific regulation

concerning information shown in online network as an advertisement should be

considered for announcement. In this occasion, conditions of online air ticket

including but not limited to additional charge in case of flight change arising from any

circumstance without passenger’s default should be ruled clearly with the practicable

punishment i.e. warning letter to the air carrier. Furthermore, this rule had better to

cover both normal airline and low cost airline evenly.

Moreover, the Ministerial Regulation shall be enacted by virtue of

Section 28 of the Direct Sale and Direct Marketing Act B.E. 2545 amended by the

Direct Sale and Direct Marketing Act (the 2nd

) B.E. 2550 in order to prescribe the

specific information which shall be disclosed to the consumer as a pre-contractual

information.

5.2.2 To consider and stipulate the Online Air Ticket Reservation service

to be a controlled business with respect to the contract

Legal measures for controlling contract and conditions of online air

ticket reservation shall be considered concisely. In this regard; according to the

101

provision of CPA, section 35 bis256

, in case any business which its sale or service

contract is required by law or by custom to be made in writing, the Committee on

Contract is empowered to stipulate any business to be a controlled business with

respect to contract.

Although, the online air ticket booking is not required by law to be

made in writing, the customer signs an electronic signature while processing online

air ticket booking which the method of sign is capable to identify the signatory and

indicating that the signatory has approved the information contained in such data

message as being his own257

; this transaction is enforceable as writing contract which

the Committee on Contract shall announce that the online air ticket booking service is

a controlled business with respect to contract.

In this regard, the author would like to suggest that the Committee on

Contract shall stipulate the online air ticket booking service to be a controlled

business with respect to contract with the following conditions;

1) Online air ticket reservation in the commercial aviation business

shall be a controlled business with respect to the contract.

2) Agreement between air carrier and customer shall be made both in

Thai and English language written with the same significant

contexts as stated below;

256

“In any business in connection with the sale of any goods or the provision of

services if contract of sale or such contract of service required by law or the custom

to be made in writing, the committee on Contract shall have the power to provide

such business to be a controlled business with respect to contract.” (CPA § 35 bis). 257

“In the case where a person is to enter a signature in a writing, it shall be deemed

that such data message bears a signature if the method used is capable of identifying

the signatory and indicating that the signatory has approved the information

contained in such data message as being his own.” (Electronic Commerce Act B.E.

2544 § 9(1)).

102

2.1) In case of flight cancellation, the air carrier shall inform

passenger and any change related to the reserved flight at least 5

days prior to the departure date.

2.2) The right of termination of air carrier (if any) shall be specify

clearly.

3) The following conditions shall not allowed to be stated in the

agreement;

3.1) Any provision which bind customer to be treated by the air

carrier without notification in writing; such as the air carrier shall

cancel the flight in case of natural disaster without any advance

notification submitted to the passenger.

3.2) Any exemption clause or liability limitation arising out of

flight delay or cancellation without customer’s default; except in

case of force majeure.

3.3) Any provision specified that all additional charge occurred

from the air carrier’s default shall be a burden of the passenger.

5.2.3 To Revise and amend the scope of the Announcement of the

Ministry of Transportation regarding the Protection of Rights of Passengers

using Thai Air Transportation Service in Domestic Routes Policy B.E. 2553

This Announcement had been enacted by virtue of the Order of the

Revolutionary Council No. 58 dated January 26, 1972, Article 7 which the

Transportation Minister assigned the Department of Air Transportation (currently is

the Department of Civil Aviation) to be the authority to control aviation upon this

Announcement. However, this Announcement is lack of punishment which cannot

enforce air carriers to comply with this Announcement in practice. Thereby, the

author would like to propose that the punishment should be added in this

103

Announcement for further practicable enforcement. For example, a warning letter

shall be issued to the air carrier who violates the Announcement—if the violation is

continued, the aviation license shall be revoked plus a sum of fine, etc.

Moreover; currently, the scope of this Announcement is limited for a

passenger travelling only on domestic route with Thai air carrier, hence, the scope set

forth in Section 3(1) of the Announcement should be expanded for an equality of

protection; both domestic and international route operated by Thai air carrier as the

following statement;

“Section 3 Air passenger has the rights to be protected under

this Announcement as follows:

(1) a passenger travelling on domestic or international

scheduled flights who has a confirmed reservation on the flight concerned and have

paid for the tickets, including the passenger travelling on the frequent flyer program

or any other supportive program offered by an airlines; and,…”.

104

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106

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พาห. ปท 45 เลมท 1 น. 86 (มกราคม 2541).

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(the 3rd

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108

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The Unfair Terms in Consumer Contracts Regulations 1999

APPENDICES

APPENDIX A

EXAMPLES OF TERMS AND CONDITIONS CONTAINED IN

ONLINE AIR TICKET BOOKING AGREEMENT

APPENDIX B

REGULATION (EC) No. 261/2004 of the European Parliament and

of the the Council of 11 February, 2004 establishing common rules on

compensation and assistance to passengers in the event of denied

boarding and of cancellation or long delay of flights, and repealing

Regulation (EC) No. 295/91

Regulation (EC) No 261/2004 of the European Parliament and of the Council

of 11 February 2004

establishing common rules on compensation and assistance to passengers in

the event of denied boarding and of cancellation or long delay of flights, and

repealing Regulation (EEC) No 295/91

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE

EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in

particular Article 80(2) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the European Economic and Social

Committee(2),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the

Treaty(3), in the light of the joint text approved by the Conciliation Committee

on 1 December 2003,

Whereas:

(1) Action by the Community in the field of air transport should aim, among

other things, at ensuring a high level of protection for passengers. Moreover,

full account should be taken of the requirements of consumer protection in

general.

(2) Denied boarding and cancellation or long delay of flights cause serious

trouble and inconvenience to passengers.

(3) While Council Regulation (EEC) No 295/91 of 4 February 1991

establishing common rules for a denied boarding compensation system in

scheduled air transport(4) created basic protection for passengers, the number

of passengers denied boarding against their will remains too high, as does that

affected by cancellations without prior warning and that affected by long

delays.

(4) The Community should therefore raise the standards of protection set by

that Regulation both to strengthen the rights of passengers and to ensure that

air carriers operate under harmonised conditions in a liberalised market.

(5) Since the distinction between scheduled and non-scheduled air services is

weakening, such protection should apply to passengers not only on scheduled

but also on non-scheduled flights, including those forming part of package

tours.

(6) The protection accorded to passengers departing from an airport located in

a Member State should be extended to those leaving an airport located in a

third country for one situated in a Member State, when a Community carrier

operates the flight.

(7) In order to ensure the effective application of this Regulation, the

obligations that it creates should rest with the operating air carrier who

performs or intends to perform a flight, whether with owned aircraft, under dry

or wet lease, or on any other basis.

(8) This Regulation should not restrict the rights of the operating air carrier to

seek compensation from any person, including third parties, in accordance

with the law applicable.

(9) The number of passengers denied boarding against their will should be

reduced by requiring air carriers to call for volunteers to surrender their

reservations, in exchange for benefits, instead of denying passengers boarding,

and by fully compensating those finally denied boarding.

(10) Passengers denied boarding against their will should be able either to

cancel their flights, with reimbursement of their tickets, or to continue them

under satisfactory conditions, and should be adequately cared for while

awaiting a later flight.

(11) Volunteers should also be able to cancel their flights, with reimbursement

of their tickets, or continue them under satisfactory conditions, since they face

difficulties of travel similar to those experienced by passengers denied

boarding against their will.

(12) The trouble and inconvenience to passengers caused by cancellation of

flights should also be reduced. This should be achieved by inducing carriers to

inform passengers of cancellations before the scheduled time of departure and

in addition to offer them reasonable re-routing, so that the passengers can

make other arrangements. Air carriers should compensate passengers if they

fail to do this, except when the cancellation occurs in extraordinary

circumstances which could not have been avoided even if all reasonable

measures had been taken.

(13) Passengers whose flights are cancelled should be able either to obtain

reimbursement of their tickets or to obtain re-routing under satisfactory

conditions, and should be adequately cared for while awaiting a later flight.

(14) As under the Montreal Convention, obligations on operating air carriers

should be limited or excluded in cases where an event has been caused by

extraordinary circumstances which could not have been avoided even if all

reasonable measures had been taken. Such circumstances may, in particular,

occur in cases of political instability, meteorological conditions incompatible

with the operation of the flight concerned, security risks, unexpected flight

safety shortcomings and strikes that affect the operation of an operating air

carrier.

(15) Extraordinary circumstances should be deemed to exist where the impact

of an air traffic management decision in relation to a particular aircraft on a

particular day gives rise to a long delay, an overnight delay, or the cancellation

of one or more flights by that aircraft, even though all reasonable measures

had been taken by the air carrier concerned to avoid the delays or

cancellations.

(16) In cases where a package tour is cancelled for reasons other than the flight

being cancelled, this Regulation should not apply.

(17) Passengers whose flights are delayed for a specified time should be

adequately cared for and should be able to cancel their flights with

reimbursement of their tickets or to continue them under satisfactory

conditions.

(18) Care for passengers awaiting an alternative or a delayed flight may be

limited or declined if the provision of the care would itself cause further delay.

(19) Operating air carriers should meet the special needs of persons with

reduced mobility and any persons accompanying them.

(20) Passengers should be fully informed of their rights in the event of denied

boarding and of cancellation or long delay of flights, so that they can

effectively exercise their rights.

(21) Member States should lay down rules on sanctions applicable to

infringements of the provisions of this Regulation and ensure that these

sanctions are applied. The sanctions should be effective, proportionate and

dissuasive.

(22) Member States should ensure and supervise general compliance by their

air carriers with this Regulation and designate an appropriate body to carry out

such enforcement tasks. The supervision should not affect the rights of

passengers and air carriers to seek legal redress from courts under procedures

of national law.

(23) The Commission should analyse the application of this Regulation and

should assess in particular the opportunity of extending its scope to all

passengers having a contract with a tour operator or with a Community carrier,

when departing from a third country airport to an airport in a Member State.

(24) Arrangements for greater cooperation over the use of Gibraltar airport

were agreed in London on 2 December 1987 by the Kingdom of Spain and the

United Kingdom in a joint declaration by the Ministers of Foreign Affairs of

the two countries. Such arrangements have yet to enter into operation.

(25) Regulation (EEC) No 295/91 should accordingly be repealed,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject

1. This Regulation establishes, under the conditions specified herein, minimum

rights for passengers when:

(a) they are denied boarding against their will;

(b) their flight is cancelled;

(c) their flight is delayed.

2. Application of this Regulation to Gibraltar airport is understood to be

without prejudice to the respective legal positions of the Kingdom of Spain

and the United Kingdom with regard to the dispute over sovereignty over the

territory in which the airport is situated.

3. Application of this Regulation to Gibraltar airport shall be suspended until

the arrangements in the Joint Declaration made by the Foreign Ministers of the

Kingdom of Spain and the United Kingdom on 2 December 1987 enter into

operation. The Governments of Spain and the United Kingdom will inform the

Council of such date of entry into operation.

Article 2

Definitions

For the purposes of this Regulation:

(a) "air carrier" means an air transport undertaking with a valid operating

licence;

(b) "operating air carrier" means an air carrier that performs or intends to

perform a flight under a contract with a passenger or on behalf of another

person, legal or natural, having a contract with that passenger;

(c) "Community carrier" means an air carrier with a valid operating licence

granted by a Member State in accordance with the provisions of Council

Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers(5);

(d) "tour operator" means, with the exception of an air carrier, an organiser

within the meaning of Article 2, point 2, of Council Directive 90/314/EEC of

13 June 1990 on package travel, package holidays and package tours(6);

(e) "package" means those services defined in Article 2, point 1, of Directive

90/314/EEC;

(f) "ticket" means a valid document giving entitlement to transport, or

something equivalent in paperless form, including electronic form, issued or

authorised by the air carrier or its authorised agent;

(g) "reservation" means the fact that the passenger has a ticket, or other proof,

which indicates that the reservation has been accepted and registered by the air

carrier or tour operator;

(h) "final destination" means the destination on the ticket presented at the

check-in counter or, in the case of directly connecting flights, the destination

of the last flight; alternative connecting flights available shall not be taken into

account if the original planned arrival time is respected;

(i) "person with reduced mobility" means any person whose mobility is

reduced when using transport because of any physical disability (sensory or

locomotory, permanent or temporary), intellectual impairment, age or any

other cause of disability, and whose situation needs special attention and

adaptation to the person's needs of the services made available to all

passengers;

(j) "denied boarding" means a refusal to carry passengers on a flight, although

they have presented themselves for boarding under the conditions laid down in

Article 3(2), except where there are reasonable grounds to deny them

boarding, such as reasons of health, safety or security, or inadequate travel

documentation;

(k) "volunteer" means a person who has presented himself for boarding under

the conditions laid down in Article 3(2) and responds positively to the air

carrier's call for passengers prepared to surrender their reservation in exchange

for benefits.

(l) "cancellation" means the non-operation of a flight which was previously

planned and on which at least one place was reserved.

Article 3

Scope

1. This Regulation shall apply:

(a) to passengers departing from an airport located in the territory of a Member

State to which the Treaty applies;

(b) to passengers departing from an airport located in a third country to an

airport situated in the territory of a Member State to which the Treaty applies,

unless they received benefits or compensation and were given assistance in

that third country, if the operating air carrier of the flight concerned is a

Community carrier.

2. Paragraph 1 shall apply on the condition that passengers:

(a) have a confirmed reservation on the flight concerned and, except in the

case of cancellation referred to in Article 5, present themselves for check-in,

- as stipulated and at the time indicated in advance and in writing (including by

electronic means) by the air carrier, the tour operator or an authorised travel

agent,

or, if no time is indicated,

- not later than 45 minutes before the published departure time; or

(b) have been transferred by an air carrier or tour operator from the flight for

which they held a reservation to another flight, irrespective of the reason.

3. This Regulation shall not apply to passengers travelling free of charge or at

a reduced fare not available directly or indirectly to the public. However, it

shall apply to passengers having tickets issued under a frequent flyer

programme or other commercial programme by an air carrier or tour operator.

4. This Regulation shall only apply to passengers transported by motorised

fixed wing aircraft.

5. This Regulation shall apply to any operating air carrier providing transport

to passengers covered by paragraphs 1 and 2. Where an operating air carrier

which has no contract with the passenger performs obligations under this

Regulation, it shall be regarded as doing so on behalf of the person having a

contract with that passenger.

6. This Regulation shall not affect the rights of passengers under Directive

90/314/EEC. This Regulation shall not apply in cases where a package tour is

cancelled for reasons other than cancellation of the flight.

Article 4

Denied boarding

1. When an operating air carrier reasonably expects to deny boarding on a

flight, it shall first call for volunteers to surrender their reservations in

exchange for benefits under conditions to be agreed between the passenger

concerned and the operating air carrier. Volunteers shall be assisted in

accordance with Article 8, such assistance being additional to the benefits

mentioned in this paragraph.

2. If an insufficient number of volunteers comes forward to allow the

remaining passengers with reservations to board the flight, the operating air

carrier may then deny boarding to passengers against their will.

3. If boarding is denied to passengers against their will, the operating air

carrier shall immediately compensate them in accordance with Article 7 and

assist them in accordance with Articles 8 and 9.

Article 5

Cancellation

1. In case of cancellation of a flight, the passengers concerned shall:

(a) be offered assistance by the operating air carrier in accordance with Article

8; and

(b) be offered assistance by the operating air carrier in accordance with Article

9(1)(a) and 9(2), as well as, in event of re-routing when the reasonably

expected time of departure of the new flight is at least the day after the

departure as it was planned for the cancelled flight, the assistance specified in

Article 9(1)(b) and 9(1)(c); and

(c) have the right to compensation by the operating air carrier in accordance

with Article 7, unless:

(i) they are informed of the cancellation at least two weeks before the

scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days

before the scheduled time of departure and are offered re-routing, allowing

them to depart no more than two hours before the scheduled time of departure

and to reach their final destination less than four hours after the scheduled time

of arrival; or

(iii) they are informed of the cancellation less than seven days before the

scheduled time of departure and are offered re-routing, allowing them to

depart no more than one hour before the scheduled time of departure and to

reach their final destination less than two hours after the scheduled time of

arrival.

2. When passengers are informed of the cancellation, an explanation shall be

given concerning possible alternative transport.

3. An operating air carrier shall not be obliged to pay compensation in

accordance with Article 7, if it can prove that the cancellation is caused by

extraordinary circumstances which could not have been avoided even if all

reasonable measures had been taken.

4. The burden of proof concerning the questions as to whether and when the

passenger has been informed of the cancellation of the flight shall rest with the

operating air carrier.

Article 6

Delay

1. When an operating air carrier reasonably expects a flight to be delayed

beyond its scheduled time of departure:

(a) for two hours or more in the case of flights of 1500 kilometres or less; or

(b) for three hours or more in the case of all intra-Community flights of more

than 1500 kilometres and of all other flights between 1500 and 3500

kilometres; or

(c) for four hours or more in the case of all flights not falling under (a) or (b),

passengers shall be offered by the operating air carrier:

(i) the assistance specified in Article 9(1)(a) and 9(2); and

(ii) when the reasonably expected time of departure is at least the day after the

time of departure previously announced, the assistance specified in Article

9(1)(b) and 9(1)(c); and

(iii) when the delay is at least five hours, the assistance specified in Article

8(1)(a).

2. In any event, the assistance shall be offered within the time limits set out

above with respect to each distance bracket.

Article 7

Right to compensation

1. Where reference is made to this Article, passengers shall receive

compensation amounting to:

(a) EUR 250 for all flights of 1500 kilometres or less;

(b) EUR 400 for all intra-Community flights of more than 1500 kilometres,

and for all other flights between 1500 and 3500 kilometres;

(c) EUR 600 for all flights not falling under (a) or (b).

In determining the distance, the basis shall be the last destination at which the

denial of boarding or cancellation will delay the passenger's arrival after the

scheduled time.

2. When passengers are offered re-routing to their final destination on an

alternative flight pursuant to Article 8, the arrival time of which does not

exceed the scheduled arrival time of the flight originally booked

(a) by two hours, in respect of all flights of 1500 kilometres or less; or

(b) by three hours, in respect of all intra-Community flights of more than 1500

kilometres and for all other flights between 1500 and 3500 kilometres; or

(c) by four hours, in respect of all flights not falling under (a) or (b),

the operating air carrier may reduce the compensation provided for in

paragraph 1 by 50 %.

3. The compensation referred to in paragraph 1 shall be paid in cash, by

electronic bank transfer, bank orders or bank cheques or, with the signed

agreement of the passenger, in travel vouchers and/or other services.

4. The distances given in paragraphs 1 and 2 shall be measured by the great

circle route method.

Article 8

Right to reimbursement or re-routing

1. Where reference is made to this Article, passengers shall be offered the

choice between:

(a) - reimbursement within seven days, by the means provided for in Article

7(3), of the full cost of the ticket at the price at which it was bought, for the

part or parts of the journey not made, and for the part or parts already made if

the flight is no longer serving any purpose in relation to the passenger's

original travel plan, together with, when relevant,

- a return flight to the first point of departure, at the earliest opportunity;

(b) re-routing, under comparable transport conditions, to their final destination

at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to their final destination

at a later date at the passenger's convenience, subject to availability of seats.

2. Paragraph 1(a) shall also apply to passengers whose flights form part of a

package, except for the right to reimbursement where such right arises under

Directive 90/314/EEC.

3. When, in the case where a town, city or region is served by several airports,

an operating air carrier offers a passenger a flight to an airport alternative to

that for which the booking was made, the operating air carrier shall bear the

cost of transferring the passenger from that alternative airport either to that for

which the booking was made, or to another close-by destination agreed with

the passenger.

Article 9

Right to care

1. Where reference is made to this Article, passengers shall be offered free of

charge:

(a) meals and refreshments in a reasonable relation to the waiting time;

(b) hotel accommodation in cases

- where a stay of one or more nights becomes necessary, or

- where a stay additional to that intended by the passenger becomes necessary;

(c) transport between the airport and place of accommodation (hotel or other).

2. In addition, passengers shall be offered free of charge two telephone calls,

telex or fax messages, or e-mails.

3. In applying this Article, the operating air carrier shall pay particular

attention to the needs of persons with reduced mobility and any persons

accompanying them, as well as to the needs of unaccompanied children.

Article 10

Upgrading and downgrading

1. If an operating air carrier places a passenger in a class higher than that for

which the ticket was purchased, it may not request any supplementary

payment.

2. If an operating air carrier places a passenger in a class lower than that for

which the ticket was purchased, it shall within seven days, by the means

provided for in Article 7(3), reimburse

(a) 30 % of the price of the ticket for all flights of 1500 kilometres or less, or

(b) 50 % of the price of the ticket for all intra-Community flights of more than

1500 kilometres, except flights between the European territory of the Member

States and the French overseas departments, and for all other flights between

1500 and 3500 kilometres, or

(c) 75 % of the price of the ticket for all flights not falling under (a) or (b),

including flights between the European territory of the Member States and the

French overseas departments.

Article 11

Persons with reduced mobility or special needs

1. Operating air carriers shall give priority to carrying persons with reduced

mobility and any persons or certified service dogs accompanying them, as well

as unaccompanied children.

2. In cases of denied boarding, cancellation and delays of any length, persons

with reduced mobility and any persons accompanying them, as well as

unaccompanied children, shall have the right to care in accordance with

Article 9 as soon as possible.

Article 12

Further compensation

1. This Regulation shall apply without prejudice to a passenger's rights to

further compensation. The compensation granted under this Regulation may be

deducted from such compensation.

2. Without prejudice to relevant principles and rules of national law, including

case-law, paragraph 1 shall not apply to passengers who have voluntarily

surrendered a reservation under Article 4(1).

Article 13

Right of redress

In cases where an operating air carrier pays compensation or meets the other

obligations incumbent on it under this Regulation, no provision of this

Regulation may be interpreted as restricting its right to seek compensation

from any person, including third parties, in accordance with the law

applicable. In particular, this Regulation shall in no way restrict the operating

air carrier's right to seek reimbursement from a tour operator or another person

with whom the operating air carrier has a contract. Similarly, no provision of

this Regulation may be interpreted as restricting the right of a tour operator or

a third party, other than a passenger, with whom an operating air carrier has a

contract, to seek reimbursement or compensation from the operating air carrier

in accordance with applicable relevant laws.

Article 14

Obligation to inform passengers of their rights

1. The operating air carrier shall ensure that at check-in a clearly legible notice

containing the following text is displayed in a manner clearly visible to

passengers: "If you are denied boarding or if your flight is cancelled or

delayed for at least two hours, ask at the check-in counter or boarding gate for

the text stating your rights, particularly with regard to compensation and

assistance".

2. An operating air carrier denying boarding or cancelling a flight shall

provide each passenger affected with a written notice setting out the rules for

compensation and assistance in line with this Regulation. It shall also provide

each passenger affected by a delay of at least two hours with an equivalent

notice. The contact details of the national designated body referred to in

Article 16 shall also be given to the passenger in written form.

3. In respect of blind and visually impaired persons, the provisions of this

Article shall be applied using appropriate alternative means.

Article 15

Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be

limited or waived, notably by a derogation or restrictive clause in the contract

of carriage.

2. If, nevertheless, such a derogation or restrictive clause is applied in respect

of a passenger, or if the passenger is not correctly informed of his rights and

for that reason has accepted compensation which is inferior to that provided

for in this Regulation, the passenger shall still be entitled to take the necessary

proceedings before the competent courts or bodies in order to obtain additional

compensation.

Article 16

Infringements

1. Each Member State shall designate a body responsible for the enforcement

of this Regulation as regards flights from airports situated on its territory and

flights from a third country to such airports. Where appropriate, this body shall

take the measures necessary to ensure that the rights of passengers are

respected. The Member States shall inform the Commission of the body that

has been designated in accordance with this paragraph.

2. Without prejudice to Article 12, each passenger may complain to any body

designated under paragraph 1, or to any other competent body designated by a

Member State, about an alleged infringement of this Regulation at any airport

situated on the territory of a Member State or concerning any flight from a

third country to an airport situated on that territory.

3. The sanctions laid down by Member States for infringements of this

Regulation shall be effective, proportionate and dissuasive.

Article 17

Report

The Commission shall report to the European Parliament and the Council by 1

January 2007 on the operation and the results of this Regulation, in particular

regarding:

- the incidence of denied boarding and of cancellation of flights,

- the possible extension of the scope of this Regulation to passengers having a

contract with a Community carrier or holding a flight reservation which forms

part of a "package tour" to which Directive 90/314/EEC applies and who

depart from a third-country airport to an airport in a Member State, on flights

not operated by Community air carriers,

- the possible revision of the amounts of compensation referred to in Article

7(1).

The report shall be accompanied where necessary by legislative proposals.

Article 18

Repeal

Regulation (EEC) No 295/91 shall be repealed.

Article 19

Entry into force

This Regulation shall enter into force on 17 February 2005.

This Regulation shall be binding in its entirety and directly applicable in all

Member States.

Done at Strasbourg, 11 February 2004.

For the European Parliament

The President

P. Cox

For the Council

The President

M. McDowell

(1) OJ C 103 E, 30.4.2002, p. 225 and OJ C 71 E, 25.3.2003, p. 188.

(2) OJ C 241, 7.10.2002, p. 29.

(3) Opinion of the European Parliament of 24 October 2002 (OJ C 300 E,

11.12.2003, p. 443), Council Common Position of 18 March 2003 (OJ C 125

E, 27.5.2003, p. 63) and Position of the European Parliament of 3 July 2003.

Legislative Resolution of the European Parliament of 18 December 2003 and

Council Decision of 26 January 2004.

(4) OJ L 36, 8.2.1991, p. 5.

(5) OJ L 240, 24.8.1992, p. 1.

(6) OJ L 158, 23.6.1990, p. 59.

Commission Statement

The Commission recalls its intention to promote voluntary agreements or to

make proposals to extend Community measures of passenger protection to

other modes of transport than air, notably rail and maritime navigation.

APPENDIX C

THE ANNOUNCEMENT OF THE MINISTRY OF

TRANSPORTATION REGARDING THE PROTECTION OF

RIGHTS OF PASSENGERS USING THAI AIR

TRANSPORTATION SERVICES IN DOMESTIC ROUTES

POLICY B.E. 2553

ประกาศกระทรวงคมนาคม

เรอง การคมครองสทธของผโดยสารทใชบรการสายการบนของไทย

ในเสนทางบนประจ าภายในประเทศ

พ.ศ. ๒๕๕๓

อาศยอ านาจตามความในขอ ๓ (๔) ขอ ๔ ขอ ๗ และขอ ๙ แหงประกาศของ

คณะปฏวต ฉบบท ๕๘ ประกาศ ณ วนท ๒๖ มกราคม พ.ศ. ๒๕๑๕ ก าหนดใหกระทรวง

คมนาคมมอ านาจหนาทเกยวกบกจการเดนอากาศ และรฐมนตรสามารถก าหนดเงอนไขในการ

อนญาตใหประกอบกจการคาขายในการเดนอากาศอนเปนสาธารณปโภคไดตามทเหนวาจ าเปน

เพอความปลอดภยหรอผาสกของประชาชน รวมทงแกไข เปลยนแปลง หรอเพมเตมเงอนไขนได

รฐมนตรวาการกระทรวงคมนาคมจงไดก าหนดมาตรการเพอคมครองสทธของผโดยสารทใช

บรการสายการบนของไทยในเสนทางบนประจ าภายในประเทศไวในเงอนไขประกอบใบอนญาต

ของผประกอบกจการคาขายในการเดนอากาศแบบประจ าของไทยทกราย ทงทไดรบใบอนญาตใน

ปจจบนและในอนาคต เพอใหผประกอบกจการยดถอและปฏบตตาม ดงตอไปน

ขอ ๑ ใหยกเลกประกาศกระทรวงคมนาคม เรอง สทธของผโดยสารซงใชบรการ

สายการบนของไทยในเสนทางบนประจ าภายในประเทศ ประกาศ ณ วนท ๖ ธนวาคม ๒๕๕๐

ขอ ๒ ในประกาศน

“สายการบน” หมายความวา ผไดรบใบอนญาตใหประกอบกจการคาขายในการ

เดนอากาศแบบประจ าในเสนทางบนภายในประเทศ

“ส ารองทนง” หมายความวา ขอเทจจรงทมหลกฐานยนยนวาสายการบนได

ยอมรบและจดแจงการส ารองทนงไวแลว

“การเปลยนแปลงเทยวบน” หมายความวา การจดใหผโดยสารเดนทางโดย

เทยวบนอนของสายการบนนนเอง หรอของสายการบนอน

“เทยวบนลาชา” หมายความวา เทยวบนทปฏบตการบนลาชากวาเวลาทก าหนด

ตามตารางการบน ซงไดประกาศไวแลว

“การยกเลกเทยวบน” หมายความวา การทสายการบนยกเลกเทยวบนใด ๆ ตาม

ตารางการบนทประกาศไวแลว และรวมถงการยกเลกเทยวบนพเศษ (Extra Flight)

“การปฏเสธการขนสง” หมายความวา การปฏเสธทจะรบขนผโดยสารเพอ

เดนทางไปกบเทยวบนทระบไวในบตรโดยสาร แมวาผโดยสารนนจะไดมาแสดงตนเพอการขน

เครองตามทก าหนดไวในประกาศนแลวกตาม เวนแต การปฏเสธนนมเหตผลอนสมควร เชน

สขภาพ ความมนคง ความปลอดภย เอกสารการเดนทางไมสมบรณ เปนตน

“คนพการ” หมายความวา คนพการตามกฎหมายวาดวยการสงเสรมและพฒนา

คณภาพชวตคนพการ

ขอ ๓ ขอบเขต

ผโดยสารทมสทธไดรบความคมครองตามประกาศน ไดแก

(๑) ผโดยสารทเดนทางในเสนทางบนประจ าภายในประเทศ ซงไดส ารองทนง

ส าหรบเทยวบนนนและไดช าระคาบตรโดยสารแลว รวมถงผโดยสารทเดนทางในโครงการสะสม

ไมลหรอโครงการสงเสรมการขายอน ๆ ทสายการบนจดขน และ

(๒) ผโดยสารนน

(ก) ไดมาแสดงตนเพอการขนเครอง (Check In) ภายในเวลาทสายการ

บนระบไวลวงหนาเปนลายลกษณอกษร หรอภายในเวลาทผโดยสารไดรบการแจงผานสอ

อเลกทรอนกส เชน เวบไซต เอสเอมเอส (SMS) เปนตน หากสายการบนไมไดระบเวลาไวใหถอ

วาไมนอยกวา ๔๕ นาท กอนเวลาทระบไวในตารางการบนทประกาศ หรอ

(ข) ถกสายการบนยายโอน (Transfer) จากเทยวบนทตนส ารองทนงไว

แลวมายงอกเทยวบนหนงไมวาดวยสาเหตใด

ขอ ๔ เทยวบนลาชา

(๑) กรณลาชาเกนกวา ๒ ชวโมง แตไมเกน ๓ ชวโมง สายการบนตองปฏบตตอ

ผโดยสารดงน

(ก) จดอาหารและเครองดมใหแกผโดยสารตามความเหมาะสมกบ

ระยะเวลาทรอขนเครองบนโดยไมคดคาใชจาย

(ข) จดอปกรณใหแกผโดยสารเพอใชในการตดตอสอสารดวยวธการใด ๆ

เชน โทรศพท โทรสาร จดหมายอเลกทรอนกส (E-Mail) เปนตน ตามความจ าเปนและเหมาะสม

โดยไมคดคาใชจาย

(ค) เมอผโดยสารไมประสงคเดนทางตอไปใหสายการบนคนเงนคา

โดยสารและคาธรรมเนยมอนใดทเรยกเกบเตมตามจ านวน ซงผโดยสารไดช าระไปส าหรบการ

เดนทางหรอเฉพาะสวนทยงไมไดเดนทางตามวธการและภายในระยะเวลาทก าหนดไวในขอ ๖ แต

หากสายการบนประสงคจะคนเปน Travel Vouchers หรอสงอนแทนเงนคาโดยสารและ

คาธรรมเนยมดงกลาวจะตองไดรบความยนยอมจากผโดยสารกอนแลวเทานน

(๒) กรณลาชาเกนกวา ๓ ชวโมง แตไมเกน ๕ ชวโมง สายการบนตองปฏบตตอ





เชน โทรศพท โทรสาร จดหมายอเลกทรอนกส (E-Mail) เปนตน ตามความจ าเปนและเหมาะสม

โดยไมคดคาใชจาย

(ค) เสนอใหผโดยสารเลอกระหวาง

๑) รบเงนคาโดยสารและคาธรรมเนยมอนใดทถกเรยกเกบคนเตม

ตามจ านวนทช าระไปส าหรบการเดนทาง หรอเฉพาะสวนทยงไมไดเดนทาง ตามวธการและภายใน

ระยะเวลาทก าหนดในขอ ๖ แตหากสายการบนประสงคจะช าระเปน Travel Vouchers หรอสงอน

แทนเงนคาโดยสารและคาธรรมเนยมอนดงกลาว จะตองไดรบความยนยอมจากผโดยสารกอน

แลวเทานน หรอ

๒) เปลยนแปลงเทยวบนเพอไปยงจดหมายปลายทางทระบไวใน

บตรโดยสารหรอไปยงจดหมายปลายทางอนทใกลเคยงกบจดหมายปลายทางเดมโดยเรวทสด

ภายในวนเดยวกนวนถดไป หรอวนอนตามความสมครใจของผโดยสาร ทงน ขนอยกบความ

สะดวกของผโดยสารและทนงวางซงสายการบนสามารถจะจดใหได โดยสายการบนไมสามารถคด

คาใชจายเพมเตมไดไมวาในกรณใด ๆ แตหากการเปลยนแปลงเทยวบนนนมคาโดยสารและ

คาธรรมเนยมอนทต ากวาจ านวนเงนคาโดยสารและคาธรรมเนยมอนใดทผโดยสารไดช าระไวแลว

สายการบนตองช าระเงนสวนตางคนใหกบผโดยสารตามวธการและภายในระยะเวลาทก าหนดใน

ขอ ๖

ในกรณทสายการบนเสนอเปลยนแปลงเทยวบนไปยงสนามบนอนท

ใกลเคยงกบจดหมายปลายทางเดม สายการบนจะตองรบภาระคาใชจายในการเดนทางจาก

สนามบนใหมไปยงสนามบนทเปนจดหมายปลายทางเดมใหแกผโดยสารดวย หรอ

๓) เดนทางโดยการขนสงทางอนทเหมาะสมเพอไปยงจดหมาย

ปลายทางทระบไวในบตรโดยสาร หรอจดหมายปลายทางอนทใกลเคยงกบจดหมายปลายทางเดม

ตามความประสงคของผโดยสารโดยเรวทสด โดยไมเสยคาใชจายเพมเตมไมวาในกรณใด ๆ แต

หากกรณทคาใชจายในการเดนทางโดยการขนสงทางอนต ากวาจ านวนเงนคาโดยสารและ

คาธรรมเนยมอนใดทผโดยสารไดช าระไวแลว สายการบนจะตองช าระเงนสวนตางคนใหกบ

ผโดยสารตามวธการและภายในระยะเวลาทก าหนดในขอ ๖

(๓) กรณลาชาเกนกวา ๕ ชวโมง แตไมเกน ๖ ชวโมง สายการบนตองปฏบตตอ


(ก) ปฏบตตอผโดยสารเชนเดยวกบกรณลาชาเกนกวา ๓ ชวโมง แตไม

เกน ๕ ชวโมงตาม ขอ ๔ (๒) และ

(ข) ช าระคาชดเชยเปนเงนสดจ านวน ๖๐๐ บาท ใหแกผโดยสารทนท

กอนทผโดยสารจะออกเดนทางไปยงจดหมายปลายทาง เวนแต สายการบนพสจนไดวาการลาชา

ของเทยวบนนนเกดจากเหตสดวสยซงอยนอกเหนอการควบคมของสายการบน เชน สถานการณ

ทางการเมองสภาพอากาศทมผลกระทบตอการปฏบตการบน การรกษาความปลอดภย เหตการณ

ใด ๆ ทมหรออาจมผลกระทบตอความปลอดภยในการท าการบนของอากาศยานและผโดยสาร

เปนตน ตลอดจนการนดหยดงานหรอการกระท าใด ๆ ของพนกงานหรอลกจางของหนวยงานอน

ทเกยวของกบการใหบรการของสายการบน ซงมผลกระทบตอการปฏบตการบนของสายการบน

ในกรณสายการบนประสงคจะช าระเปน Travel Vouchers หรอสงอนแทน

คาชดเชยเปนเงนสด ๖๐๐ บาท ตามวรรคหนง จะตองไดรบความยนยอมจากผโดยสารกอนแลว

เทานน

(๔) กรณลาชาเกนกวา ๖ ชวโมง สายการบนตองปฏบตตอผโดยสาร

เชนเดยวกบมาตรการในเรองการยกเลกเทยวบนตามทก าหนดในขอ ๕

ขอ ๕ การยกเลกเทยวบน หรอการปฏเสธการขนสง สายการบนตองปฏบตตอ


(๑) เสนอใหผโดยสารเลอกระหวาง

(ก) รบเงนคาโดยสารและคาธรรมเนยมอนใดทถกเรยกเกบคนเตมตาม

จ านวนทจายไปส าหรบการเดนทางหรอเฉพาะสวนทยงไมไดเดนทางตามวธการและภายใน

ระยะเวลาทก าหนดในขอ ๖ แตหากสายการบนประสงคจะช าระเปน Travel Vouchers หรอสงอน

แทนเงนคาโดยสารและคาธรรมเนยมดงกลาว จะตองไดรบความยนยอมจากผโดยสารกอนแลว

เทานน หรอ

(ข) เปลยนแปลงเทยวบนเพอเดนทางไปยงจดหมายปลายทางทระบไวใน

บตรโดยสารหรอจดหมายปลายทางอนทใกลเคยงกบจดหมายปลายทางเดมโดยเรวทสดภายในวน

เดยวกนวนถดไป หรอวนอนตามความสมครใจของผโดยสาร ทงน ขนอยกบความสะดวกของ

ผโดยสารและทนงวางทสายการบนสามารถจดใหได โดยสายการบนตองไมคดคาใชจายเพมเตม

ไมวาในกรณใด ๆ แตหากการเปลยนแปลงเทยวบนนนมคาโดยสารและคาธรรมเนยมอนทต ากวา

จ านวนเงนคาโดยสารและคาธรรมเนยมทผโดยสารไดช าระไวแลว สายการบนตองช าระเงนสวน

ตางคนใหกบผโดยสารตามวธการและภายในระยะเวลาทก าหนดในขอ ๖

ในกรณทสายการบนเสนอเปลยนแปลงเทยวบนไปยงสนามบนอนท

ใกลเคยงกบจดหมายปลายทางเดม สายการบนจะตองรบภาระคาใชจายในการเดนทางจาก

สนามบนใหมไปยงสนามบนทเปนจดหมายปลายทางเดมใหแกผโดยสารดวย หรอ

(ค) เดนทางโดยการขนสงทางอนทเหมาะสมเพอไปยงจดหมายปลายทาง

ทระบไวในบตรโดยสาร หรอจดหมายปลายทางอนทใกลเคยงกบจดหมายปลายทางเดมตามความ

ประสงคของผโดยสารโดยเรวทสด โดยไมเสยคาใชจายเพมเตมไมวาในกรณใด ๆ แตหากคา

เดนทางโดยการขนสงทางอนต ากวาจ านวนเงนคาโดยสารและคาธรรมเนยมทผโดยสารไดช าระไว

แลว สายการบนตองช าระเงนสวนตางคนใหกบผโดยสารตามวธการและภายในระยะเวลาท

ก าหนดในขอ ๖

(๒) ใหการดแลผโดยสารดงน




เชน โทรศพท โทรสาร หรอจดหมายอเลกทรอนกส (E-Mail) เปนตน ตามความจ าเปนและ

เหมาะสมโดยไมคดคาใชจาย

(ค) จดทพกแรมใหแกผโดยสารตงแต ๑ คนขนไป ตามความจ าเปนและ

เหมาะสมในการจดการขนสงระหวางสนามบนและทพกแรม ในกรณทเปนเทยวบนใหมทม

ก าหนดเวลาการออกเดนทางลาชากวาก าหนดเวลาตามตารางการบนเดมเกนกวา ๑ วน โดยไมคด

คาใชจาย

(๓) ช าระคาชดเชยเปนเงนสดจ านวน ๑,๒๐๐ บาท ใหแกผโดยสารทนทกอนท

ผโดยสารจะออกเดนทางไปยงจดหมายปลายทาง เวนแต สายการบนพสจนไดวา

(ก) ไดแจงขาวการยกเลกเทยวบนและรายละเอยดเกยวกบทางเลอกใน

การเดนทางอน ๆ ใหผโดยสารทราบกอนก าหนดวนเวลาเดนทางไมนอยกวา ๓ วน หรอ

(ข) ไดแจงขาวการยกเลกเทยวบนใหผโดยสารทราบกอนก าหนดวนเวลา

เดนทางไมถง ๓ วน ในกรณทเทยวบนใหมทเปลยนแปลงนนจะออกเดนทางกอนหรอหลงก าหนด

วนเวลาเดมและไปถงจดหมายปลายทางทระบในบตรโดยสารเรว หรอชากวาก าหนดวนเวลาเดม

ไมเกน ๓ ชวโมง หรอ

(ค) การยกเลกเทยวบนนนเกดแตเหตสดวสยซงอยนอกเหนอการควบคม

ของสายการบน เชน สถานการณทางการเมอง สภาพอากาศทมผลกระทบตอการปฏบตการบน

การรกษาความปลอดภยเหตการณใด ๆ ทมหรออาจมผลกระทบตอความปลอดภยในการท าการ

บนของอากาศยานและผโดยสาร เปนตน ตลอดจนการนดหยดงานหรอการกระท าใด ๆ ของ

พนกงานหรอลกจางของหนวยงานอนซงเกยวของกบการใหบรการของสายการบน ทมผลกระทบ

ตอการปฏบตการบนของสายการบน

โดยการแจงขาวการยกเลกเทยวบนตาม (ก) และ (ข) ใหสายการบนแจง

ไปยงสถานทตดตอหรอชองทางการสอสารทางอนใดทผโดยสารไดแจงไวกบสายการบนเมอท า

การส ารองทนงไวแลว ทงน การพสจนวาสายการบนไดแจงขาวการยกเลกเทยวบนใหตกเปนภาระ

ของสายการบน

ในกรณทสายการบนประสงคจะช าระเปน Travel Vouchers หรอสงอน

แทนคาชดเชยเปนเงนสด จ านวน ๑,๒๐๐ บาท ตามวรรคหนง จะตองไดรบความยนยอมจาก

ผโดยสารกอนแลวเทานน

ขอ ๖ วธปฏบตในการคนเงนคาโดยสารและคาธรรมเนยมอนใด หรอเงนสวน

ตางสายการบนตองปฏบตดงน

(๑) จดท าแบบในการแสดงความจ านงขอคนคาโดยสารและคาธรรมเนยมอนใด

หรอเงนสวนตางตลอดจนจดไว ณ ทาอากาศยาน บรเวณอาคารผโดยสาร (หองโดยสารอากาศ

ยาน) และส านกงานใหญหรอส านกงานสาขาของสายการบน หรอจดใหผโดยสารสามารถดาวน

โหลดผานทางเวบไซตของสายการบนได ทงน รายการในแบบแสดงความจ านงอยางนอยตอง

ประกอบดวย วน เวลา และเทยวบนทสายการบนปฏเสธการขนสง ยกเลกเทยวบน หรอท าการบน

ลาชา วธการทผโดยสารช าระคาโดยสาร เชน เงนสด บตรเครดต เปนตน จ านวนเงนคาโดยสารท

ช าระ ทอยและชองทางทสามารถตดตอได รวมทงวธการรบคนคาโดยสารทเลอก เชน เงนสด การ

โอนผานบญชธนาคาร เชคธนาคาร เปนตน

(๒) ก าหนดและประกาศใหผโดยสารทราบถงสถานทหรอชองทางทสามารถยน

แบบแสดงความจ านงได เชน เคานเตอรของสายการบน ณ ทาอากาศยาน บรเวณอาคารผโดยสาร

(หองโดยสารอากาศยาน) และส านกงานใหญหรอส านกงานสาขาของสายการบน หรอยนผานทาง

เวบไซตของสายการบน

(๓) คนเงนคาโดยสารและคาธรรมเนยมอน หรอเงนสวนตางใหแกผโดยสาร

ดวยวธการทผโดยสารเลอก เชน เงนสด โอนผานบญชธนาคาร เชคธนาคาร เปนตน ภายใน

ระยะเวลาทนบจากวนซงสายการบนไดรบแบบแสดงความจ านงและเอกสารทจ าเปนครบถวนแลว

ดงน

(ก) กรณผโดยสารซอบตรโดยสารดวยเงนสดตองด าเนนการคนใหเสรจ

สนภายในระยะเวลาไมเกน ๗ วน

(ข) กรณผโดยสารซอบตรโดยสารดวยบตรเครดตตองด าเนนการคนให

เสรจสนภายในระยะเวลาไมเกน ๔๕ วน

ขอ ๗ การเพมหรอลดชนของบรการในเทยวบน สายการบนตองปฏบตดงน

(๑) กรณทจดใหผโดยสารเดนทางในชนบรการทสงกวาชนบรการทระบไวใน

บตรโดยสารสายการบนตองไมคดคาโดยสาร คาธรรมเนยม หรอคาใชจายอนใดเพมเตม

(๒) กรณทจดใหผโดยสารเดนทางในชนบรการทต ากวาชนบรการทระบไวใน

บตรโดยสารสายการบนตองคนเงนสวนตางของราคาคาโดยสารแกผโดยสารตามวธการและ

ภายในระยะเวลาทก าหนดในขอ ๖

ขอ ๘ ในกรณผโดยสารเปนเดกอายต ากวา ๑๒ ป (เดนทางโดยล าพง) คนพการ

หรอบคคลทไมสามารถชวยเหลอตวเองได สายการบนตองปฏบตโดยใหบรการและดแลเปนกรณ

พเศษตามหลกปฏบตสากล และไมคดคาใชจายเพมเตมไมวาในกรณใด ๆ หากสายการบนได

ปฏเสธการขนสง ยกเลกเทยวบน หรอท าการบนลาชาไมวาเปนเวลามากนอยเพยงใด สายการบน

ตองใหบรการและดแลแกผโดยสารดงกลาวโดยไมชกชา

ขอ ๙ มาตรการคมครองทดกวา

ในกรณทสายการบนไดก าหนดมาตรการเพอคมครองสทธของผโดยสารของตน

ไวในระดบทดกวา และไมขดหรอแยงกบมาตรการตามประกาศน ใหสายการบนนนใชมาตรการ

ดงกลาวเพอคมครองสทธของผโดยสารของตน

ขอ ๑๐ การรองเรยนเกยวกบการปฏบตของสายการบน

ผโดยสารสามารถรองเรยนสายการบนซงไมไดปฏบตตามประกาศฉบบน มายง

กรมการบนพลเรอน เลขท ๗๑ ซอยงามดพล ถนนพระราม ๔ แขวงทงมหาเมฆ เขตสาทร

กรงเทพฯ ๑๐๑๒๐ โทรสาร ๐ ๒๒๘๗ ๓๓๗๓ จดหมายอเลกทรอนคส

: [email protected] หรอสายดวน ๑๑๑๑ โทร ๐ ๒๒๘๖ ๓๗๗๕ (ในเวลา

ราชการ) เพอกรมการบนพลเรอนจะไดท าการตรวจสอบขอเทจจรงและด าเนนการตอไป

ขอ ๑๑[๑]

ประกาศฉบบนใหใชบงคบตงแตวนถดจากวนประกาศในราชกจจา

นเบกษาเปนตนไป

ประกาศ ณ วนท ๖ ตลาคม พ.ศ. ๒๕๕๓

โสภณ ซารมย

รฐมนตรวาการกระทรวงคมนาคม

ปรยานช/ผจดท า

๑๐ พฤศจกายน ๒๕๕๓

ณฐวด/ตรวจ

๑๐ พฤศจกายน ๒๕๕๓

[๑]

ราชกจจานเบกษา เลม ๑๒๗/ตอนพเศษ ๑๒๘ ง/หนา ๑๑/๕ พฤศจกายน ๒๕๕๓

http://web.krisdika.go.th/data/law/law3/%bb%c706/%bb%c706-2e-2553-a0003.htm#_ftn1

http://web.krisdika.go.th/data/law/law3/%bb%c706/%bb%c706-2e-2553-a0003.htm#_ftnref1

BIOGRAPHY

Name Miss Worrapan Jantaramard

Date of Birth November 4, 1985

Educational Attainment 2008: LL.B., Thammasat University

2010: Barrister-At-Law, Institute of Legal

Education of the Thai Bar

Work Position Legal Consultant

Bridgestone Sales (Thailand) Co., Ltd.

Work Experiences 2012-Present: Legal Consultant

Bridgestone Sales (Thailand) Co., Ltd.

2012: Junior Lawyer

Vidon and Partners (Thailand) Co., Ltd.

2009-2011: Legal Officer

Isuzu Motors Co., (Thailand) Ltd.

consumer protection regarding online air ticket …

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