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Friday, February 4, 2011

Thai Netizen: The Trial on the Case Study of Internet & Intermediary Liability in Thailand

On October 17, 2010 Thai Netizen Network issued a statement calling for the amendment of Computer-related Crime Act 2007 (CCA), since before the CCA was enacted, Thai Netizen Network already began calling for an amendment to this law, as we saw that the enforcement of this law would result in depriving people’s right to freedom of expression, which is fundamental for democracy. Furthermore, this law contradicts the characteristics of the Internet in many aspects, thereby allowing abusive enforcement. However, the government has never realised and taken this issue seriously to amend this freedom-infringing law.

In addition, amidst crucial political conflicts in the past three years, we found that the Act especially its most problematic Article 14 and Article 15 has been used to attack political dissidents. One clear example is the arrests and charges against Chiranuch Premchaiporn, director of Prachatai online newspaper (, in two separate incidents.

In the first case, the police charged Chiranuch for an offence according to Article 15 of the Computer-Related Crime Act: intentionally support or consent to an offence under Article 14, allegedly committed by an Internet user. The offence in this case is the posting on Prachatai webboard a piece of text that the authority deemed to be defaming, insulting, or threatening the King, the Queen, the Heir-apparent, or the Regent.

Nevertheless, that webboard post was removed for several months before the arrest. It was removed right after Chiranuch received a summons from the Crime Suppression Division asking for information of the post author. This shows her intention not to support any content of that post. Moreover, the period of 20 days, for which the topic was present, that the police claimed as proof of “intentional support,” does not appear in any part of the law. It was just a number cited in the arrest report.

Thai Netizen Network observes that the cases of Chiranuch point to several defects in Article 15 of the Computer-Related Crime Act 2007 as follows:

1. Burden of Conduits
Article 15 sees a service provider or an “intermediary” as an editor of a newspaper who has both responsibility and ability to screen all the contents before publishing. However, one crucial characteristic that renders the Internet as useful as it is nowadays is that information flows rapidly. An intermediary is therefore “mere conduit”. If Thai authorities hold intermediaries liable for all information and content passing through them, intermediaries must have the capacity to filter everything. Even with normal speed and amount of information, this task is already hard to achieve without tampering with proper functioning of the computer system and the Internet.

2. An Intermediary as A Scapegoat
In cases involving intermediaries like the Prachatai and Chiranuch’s, so far only one post author has been arrested and taken to the court, and that case was acquitted by Criminal Court on January 31, 2010 based on the ground that the plaintiff was not able to prove if the defendant was really the one that posted those comments. Also in the case of this post author, Prachatai has cooperated in every way according to the law. Therefore, the authorities should not try to hold intermediaries liable if they have cooperated but the actual offender cannot be found.

Thai Neizen Network sees that in countries where Internet law takes the public’s right to freedom of expression seriously, there are clear rules that are based on “safe harbour” principle. Because intermediaries act as a “space” that normally has no knowledge of potential offences, this principle exists to protect them from unnecessary legal liability.
Nevertheless, this principle does not grant intermediaries excessive freedom. Authorities can always notify websites for offensive content and request a court warrant to force a removal (following notice-and-take-down procedures). Yet the process must allow for sufficient response time for each step. In other words, the law assumes intermediaries to be innocent by default.

Therefore, the cases of Prachatai and Chiranuch, as the defender for Internet freedom, have gained prominent attention from the global movement which concerned on the cybe- liberty. Chiranuch’s case is not only important to set a precedent for Internet regulation in Thailand under the application of CCA but also to the international standard as well as the status of Internet freedom in Thailand which also affects to the trending situation in Southeast Asian countries as well.

In regard of the trial on Chiranuch’s case which begins in February 4, 2011, Thai Netizen Network will join with other human rights and media freedom organizations to observe, follow up and report on the testimonies.

The criminal court will conduct the witness hearings on the case of Ms. Chiranuch Premchaiporn from 4 to 17 February 2011. Ms. Chiranuch will appear as the defendant, while the Office of the Special Attorney on Criminal Case 8 which is under Office of the Attorney-General will appear as the prosecutor. This case deals with the penalty related to the intermediary under the Section 15 of the Computer Crime Act which is related to supporting or consenting to an offence related to national security within a computer system under the intermediary’s control.
The Criminal Court is scheduled to hear the witnesses of the case on the following dates:
Plaintiff's witnesses February 4, 8, 9, 10 9.00- 12.30 and 13.30 - 16.00
Defendant's witnesses February 11, 15, 16, 17 9.00- 12.30 and 13.30 - 16.00
Place: Criminal Court on Ratchadapisek Road
Simultaneous translation is available in the court room for foreign journalists and trial observers upon request (Please contact Thaweeporn at the phone number below).

The police charged Chiranuch for an offence according to Article 15 of the Computer-Related Crime Act: intentionally support or consent to an offence under Article 14, allegedly committed by an Internet user. The offence in this case is the posting on Prachatai webboard a piece of text that the authority deemed related to the national security.

The Crime Suppression Division later submitted the charges against Chiranuch to the Office of Attorney-General. And the prosecutors finally laid out a case on 31 March 2010.


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