The trial on the case study of Internet & Intermediary liability in Thailand.
In 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 (http://www.prachatai.com/english), 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 in 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.
Detailed Cases of Ms. Chiranuch Premchaiporn
a. About Prachatai:
Prachatai (means “Free People”) or the Foundation for Community Educational Media (FCEM) was founded in 2004 by Jon Ungpakorn, a Thai senator and a human rights advocate who won the Magsaysay Award.
Prachatai was set up in response to the period of the curtailment of mainstream media under the administration of PM Thaksin Shinnawatra. It continues to play an important role after the military coup d’état in September 2006 to the current period when the Emergency Decree is being imposed on many of the provinces in the country including Bangkok, which has severe effects to the right to freedom of expression.
Since 2004, Prachatai has been a source of news for debates on social, political, and human rights issues in Thailand. It also publishes interviews and articles by academics, human rights activists, community activists, trade unionists, student activists, etc. In addition to news reports, Prachatai also hosts a series of online TV and radio programmes that discuss those issues.
b. About Chiranuch Premchaiporn:
Chiranuch Premchaipron is the Executive Director and one of the founders of Prachatai.
Prachatai is one of a few online media that provide a space for readers to discuss and express their views and thoughts through an online forum (also known as webboard), which was separated into two sections: Society and Politics (for general issues) and “Pro-democracy and Anti-Dictatorship”. The webboard enjoyed huge popularity. In 2008, there were 250 news topics and 2,500 new comments per day, with Chiranuch as a sole full-time moderator. Around 20 forum members voluntarily reported problems but did not operate on a schedule.
The purpose of the webboard was to create a space where information and discussions could be exchanged in line with the belief that Prachatai belongs to all the readers. Given that the situation of freedom of expression has been under suppression in Thailand since the military coup d’état in 2006, the Prachatai webboard was meant to function as additional spaces to the printed media and at the same time to present different angles on Thai politics.
Apart from being involved with Prachatai, Chiranuch was a founding member of Thai Netizen Network (TNN) which is a network of media activists, internet users, bloggers, and IT academics who monitor violation of freedom of expression on the internet as a result of the Computer-Related Crime Act.
Prior to her involvement in Prachatai, Chiranuch was an active women human rights defender and HIV/AIDS activist. Her focus was on the issue of gender equality, social welfare, and de-stigmatize on the people living with HIV/AIDS. Her focus was also on the right to access to retro-antiviral drugs and working and supporting with HIV-affected children and campaigning to change the negative mindset of the society and the population on the children who are living with HIV/AIDS.
2. Cases, Arrests, and Bails:
On March 6, 2009, at around 2.30pm, more than ten police officers in three police cars came to arrest her at Prachatai office. The officers first showed a search warrant and later an arrest warrant. The charge referred to section 15 of the Computer-Related Crime Act (CCA). The offence in this case concerned a forum topic that contains defamation of the monarchy posted by a forum member on 15 October 2008. She denied all charges.
The officers confiscated her laptop and copied all the data for forensic procedures. Two similar copies were made for both sides to prevent any alteration.
On 24 September 2010 at 2pm, Chiranuch and her colleague, Arthit Suriyawongkul, a media rights activist, arrived in Suvarnabhumi International Airport in Bangkok after attending the Internet at Liberty 2010 conference in Budapest, Hungary. The conference was sponsored by Google and Central European University. Chiranuch was stopped at the immigration checkpoint and was shown an arrest warrant.
She then contacted my lawyer. The police informed her that she had to report to Khon Kaen Provincial police station where the warrant was issued. Khon Kaen is 449 kilometres away from Bangkok.
Her lawyer called the police station regarding the bail, which he was told that it was 200,000 baht (approx. US$6,500). At 5.30pm, the immigration police officers escorted me (and Arthit as a company) to Nakorn Ratchasima province to hand her to the awaiting Khon Kaen police.
At 11.30pm, she arrived at the police station. Her lawyer accompanied with my colleagues at Prachatai arrived later at midnight. She was finally bailed out at 1.00am on the next day. The interrogation continued until 2.30am. Everyone immediately headed back to Bangkok.
3. Actions by the judges/ prosecutors:
On 7 April 2009, the police filed nine further charges against her according to other nine forum topics posted by members from April to August 2008. The police then filed the case to the public prosecutor on 1 June 2009.
On 31 March 2010, the public prosecutor filed ten charges against her for the ten forum topics posted at different times. These topics are said to be making some reference to His Majesty the King. However, the offending topics had already been removed well before the arrest.
According to the Section 15 of the CCA, the penalty is the same for offenses described in Section 14, which is imprisonment for not more than five years or a fine of not more than 100,000 Baht or both. Due to a penalty limitation in the law, the highest possible penalty, after reduced by a limitation in the law, is 20 years in prison or 1,000,000 baht fine (US$33,400).
On 31 May, Chiranuch appeared at the Criminal Court in Rachadapisek Road to state the names and lists of the witnesses and evidences to Ms. Chanathip Muangpawong, the head judge. The public prosecutor’s requested for four days to be given to the witnesses on their side was promptly allowed by Ms. Chanathip. But when my lawyer requested to her for the similar numbers of dates and witnesses, it was denied by Ms. Chanathip.
Ms. Chanathip made a comment that: “it is not necessary for the defendant to have many dates for witnesses. You do not have to worry. I can already make a verdict on this case based upon the information given by the public prosecutor.”
The opinion made by the head judge was documented by Sor Rattanamanee Polkla, a staff member of the Asian Human Rights Commission and Ms. Kwanravee Wangudom, a human rights defender who were presented there. There were also around 20 people in the court room when the head judge made that comment.
However, with the continued persistence in persuading her, the judge allowed Chiranuch to be given the same numbers of days for our witnesses.
The second arrest was under the charge of Article 112 of the Thai Criminal Code which defines a person violating Thailand’s lese majeste law as anyone who “defames, insults or threatens the king and the royal family” and that the severest penalty is imprisonment for up to fifteen years.
Chiranuch is also charged under Article 116 under the Criminal Code which prohibits making “to the public by words, writings or any other means which is not an act within the purpose of the Constitution to disrupt peace”, and article 14 and 15 of the Computer-related Crime Act, “intentionally supporting or consenting for crimes linked to the use of computers”.
The charge was allegedly from the complaint filed with the police in April 2008 by Mr. Sunimit Chirasuk, a resident of Khon Kaen, regarding five comments with alleged lese majeste comments made after an article in Prachatai. The comments were in reference to an interview of Mr. Chotisak Onsoong, an anti-coup activist who did not stand up for the Royal Anthem in a cinema (in Thailand, the Royal Anthem is played prior to every screening).
The arrest warrant was issued by the police in September 2009, but the information on the arrest warrant was not delivered to me until a year later when Chiranuch was arrested at the Suvarnabhumi International Airport in September 2010.
Chiranuch is required to report every month to the police in Khon Kaen which is 449 km away from Bangkok. Her next appointment with the Khon Kaen police is 8 December.
It is expected that if Chiranuch is prosecuted in all charges currently registered with the complaint, the highest penalty she could be facing up is 50 years in prison.
4. Responses by human rights organisations:
On 6 March 2009, the Asian Human Rights Commission (AHRC), a Hong Kong based regional NGO released a statement condemning the police raid on Prachatai.
· Refers to Prachatai as “one of the few independent and outspoken media outlets operating in Thailand”.
· Condemns “this police raid and the issuing of the arrest warrant for the Prachatai director in the strongest possible terms” and “the odious law under which the raid and arrest warrant have been issued is one of the main planks in the platform designed to be built over the heads of dissidents in Thailand”.
· Expresses its strong support for staffs of Prachatai and calls for action from “international media organizations, human rights groups, and UN Human Rights Council […] and UN Special Rapporteur on freedom of expression”.
Amnesty International, on 24 September 2010, issued a statement demanding for my release and that Chiranuch is a prisoner of conscious.
International Federation of Human Rights (FIDH) and Union for Civil Liberty (UCL), on 27 September 2010, issued a statement “condemning Chiranuch’s arrest and the use of restrictive legislation in order to silence critics of the current government’s policies, in violation of the right to freedom of expression […] on the vague grounds of protecting ‘national security’”. Both organisations call for the Thai government to drop all charges against her and to make sure that Thai law will not be used as a political tool to silence members of the oppositions, intellectuals, and journalists who disagree with the government policies and to call for the government to invite the UN Special Rapporteur on freedom of expression to visit Thailand.
International Foundation for the Protection of Human Rights Defenders (Front Line) issued a statement and an appeal in respond to the arrest highlighting its concern regarding the arrest, judicial harassment and charges against her “as it is believed that these have been brought against her solely as a result of her work in the defense of human rights, particularly freedom of expression and the press”. It also “expresses its concern regarding ongoing interference with freedom of the media and the right to freedom of expression in Thailand”.
Mark Belinsky, a co-director of Digital Democracy (who attended the Internet Liberty 2010 conference in Hungary) said that: “[it is] unacceptable that she [was] being detained for something she didn’t say, but actually for illegal remarks that she tried to remove from her site. This sends a dangerous message to the people of Thailand and has implications for the rest of the region”.
Reporters without Borders released a statement stating that:
· “[the] way the Thai authorities are behaving towards Chiranuch is unacceptable. The judicial system will be completely discredited if all the charges against her are not dropped. She is being treated like a criminal although she is regarded internationally as an expert in online journalism”.
Within hours of the arrests, there were actions launched by bloggers, journalists, and NGOs on social networks including facebook and twitter.
5. Responses by Thai government:
· 11 March 2009 – After the Thai Netizen Network, a network of activists, scholars, and media practitioners filed a complaint with PM Abhisit Vejjajiva, the PM said that he had no policy to persecute me and that a solution should be discussed.
· 14 March 2009 – In a speech at Saint John’s College, University of Oxford, the PM mentioned that the case was “a misunderstanding and perhaps not [the police was not] following the standard operating procedures”.
· 14 January 2010 – In the keynote speech to the Foreign Correspondents’ Club of Thailand, the PM after answering questions on lese majeste law spoke of his “regret” and explained that: “[the case] was actually an exception because we had actually invited all the stakeholders and thought we had a good standard operating procedure. But that case was really an exception”.
· 15 June 2010 – About one month after the announcement of the National Reconciliation Roadmap, Juti Krairiksh, the minister for International and Communication Technology gave an interview on website regulation and criticized me. He mentioned saying that there was a problem in censorship “in the example of Prachatai, the owner of the website who is a lady has proficiently coordinated with other countries by sending them a photo of her behind prison bars to accuse the government of suppressing freedom of the press, so we have to negotiate in keeping with the reconciliation roadmap”.
1. Timeframe of the case:
a. First Case:
· 6 March 2009 – Police officers applied for a search warrant and an arrest warrant. I was given bail.
· 7 April 2009 – The police filed additional charges.
· 1 June 2009 – The police handed the case to the public prosecutor. I was again bailed out but had to report to the Attorney-General’s Office every 30 days. I was later allowed to report every 60 days instead, after a formal request was made.
· 31 March 2010 – The public prosecutor filed charges in court. I was briefly imprisoned for three and a half hours before getting bail.
· 31 May 2010 – A preliminary hearing was held to schedule witness hearings.
· 8 November 2010 – Both sides meet at the court to finalise the witness and evidence list.
Witness hearings will be held in early February 2011. The dates for the prosecution are 4, 8, 9, and 10, and the defendant 11, 15, 16, 17.
b. Second Case:
28 April 2008 – Suminit Chirasuk lodged a complaint against Prachatai at Khon Kaen provincial police station
8 September 2009 – An arrest warrant was issued by Khon Kaen court
24 September 2010 – I was arrested and was bailed out at 1.00am on 25 September 2010
2. Documents on the state of freedom of expression in Thailand:
a. Position Paper: Restriction on freedom of expression through lese majeste law in Thailand; by International Federation of Human Rights. 1 July 2009. Available at: http://www.fidh.org/Position-paper-Restrictions-on-freedom-of
b. Letter from more than one hundred of international dignitaries, scholars, and parliamentarians to Abhisit Vejajiva, the Prime Minister of the Royal Government of Thailand, raising concern on the deterioration of basic civil liberties through lese majeste laws and call for the amendment of the law, March 2009. Available at http://asiapacific.anu.edu.au/newmandala/wp-content/uploads/2009/03/lett... and http://asiapacific.anu.edu.au/newmandala/wp-content/uploads/2009/03/addi...
c. Press Release on Cases Related to the Computer-Related Crime Act; by Thai Netizen Network, 26 May 2009. Available at: http://thainetizen.org/node/570
3. Brief explanations of other victims under Computer Related Crime Act (CCA)
a. In December 2007, an internet user under the name of "Phraya Pichai" was prosecuted for lese majeste but ended up sentenced for allowing a defamation to North Korean leader Kim Jong-il to be posted on own web forum, and thus threatening relationship between countries and damaging national security. He pleaded guilty and was sentenced for two years in prison and 20,000 Thai Baht fine (US$670). He got a two-year suspension of sentence.
b. In June 2010, website designer Thanthawuth Thaweewarodomkul was prosecuted for allowing posts deemed defaming to the King on own web forum. The case is still in trial process which will also begin in February 2011.
c. In August 2009, an individual sued the founder of Thailand's largest web forum Pantip.com for allowing a false defaming forum topic to be posted on own website. The case is due to be sentenced in December 2010.
d. In June 2010, Matichon newspaper sued Manager Newspaper for defamation on their website. Manager newspaper allegedly posted an article accusing Matichon to be a part of an anti-monarchy movement. The case is still in trial process.
e. In September 2010, Manager Newspaper sued Matichon newspaper for defamation by posting the complaint of the aforementioned case on their website. The case is still in trial process.
4. Report on the arrests of internet users and blocking of websites using Computer Crime Act released by iLaw Project, which documented that at least 74,686 URLs have been blocked under the act, http://ilaw.or.th/node/632
 The Computer-Related Crime Act (CCA) was drafted and passed after the military coup d’état (which took place on 19 September 2006). The act was drafted and passed by the National Legislative Assembly, which was an assembly selected by the coup makers.
 For full text of article 112 and article 116 of the Criminal Code (1956), please see http://www.urgentappeals.net/pdf/AHRC-UAC-153-2010-02.pdf
 For the case of Chotisak Onsoong, please see “The Incident of Chotisak Onsoong”, 23 April 2008. Avaliable at: http://ratchasima.wordpress.com/2008/04/24/news-not-fit-to-print-at-the-.... The Reporters without Border also has an overview briefing discussing the situation of lese majeste law and its encroachment on the right to freedom of expression, February 2009. Available at: http://www.rsf.org/IMG/pdf/rapport_en_ok.pdf
 Thailand: AHRC strongly condemns police raid on news outlet, 6 March 2009. Avaliable at: <a href="http://www.ahrchk.n