Photograph from Prachatai
The case of Chiranuch Premchaiporn, or Jiew, the director of Prachatai website, has been watched by those concerned with freedom of expression and Internet freedom. On the morning of 30 May, the Thai criminal court ruled that allowing the offensive user comment on the website for twenty days means that Chiranuch is guilty of consenting.
Chiranuch was covered in the international media when she was prosecuted for the user comments deemed defaming the royals, a national security offence, on the now defunct forum of Prachatai. She faced ten counts, each carrying a maximum of five years in jail, with a legal maximum of twenty years.
Finding Chiranuch guilty, the court handed her eight months of imprisonment, suspended for one year, and 20,000 Baht fine. The penalty might be a bit of a relief when compared to several lèse-majesté-related cases, but the guilty sentence and its rationale set a bad standard for Internet scene in Thailand.
Chiranuch was prosecuted under the Computer Crime Act, came into force in 2007 by the post-coup junta-appointed assembly. The provisions of the Act include the following:
Section 14. If any person commits any offence of the following acts shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both:
(1) that involves import to a computer system of forged computer data, either in whole or in part, or false computer data, in a manner that is likely to cause damage to that third party or the public;
(2) that involves import to a computer system of false computer data in a manner that is likely to damage the country’s security or cause a public panic;
(3) that involves import to a computer system of any computer data related with an offence against the Kingdom’s security under the Criminal Code;
(4) that involves import to a computer system of any computer data of a pornographic nature that is publicly accessible;
(5) that involves the dissemination or forwarding of computer data already known to be computer data under (1) (2) (3) or (4);
Section 15. Any service provider intentionally supporting or consenting to an offence under Section 14 within a computer system under their control shall be subject to the same penalty as that imposed upon a person committing an offence under Section 14.
The offence against the Kingdom’s security under the Criminal Code in Section 14(3) includes Section 112 of the Code, commonly known as lèse majesté, which criminalises the defamation of the King, the Queen, and the Heir-apparent.
The court found that ten comments in question count as the Kingdom’s security offences under Section 14(3), but there was no evidence that the defendant imported the messages. The key question, according to the judgment, was whether Chiranuch, as a service provider, consented as in Section 15?
The court acknowledged that the law did not specify the time frame for the service providers, and that it would be unfair to demand them to remove the offending material immediately. However, the court also stated that to excuse the service providers for not knowing about the offence in their systems would make the law unenforceable.
Nine out of ten messages were removed within a few days after it was submitted. (One of the those were removed in eleven days, the rest were in less than three days.) However, one comment appeared on the forum for twenty days, which the court found exceeding the appropriate amount of time to deal with it, concluding that it constituted as consent. The court therefore found Chiranuch guilty, handing the punishment of one year imprisonment and 30,000 Baht fine. The penalty was reduced by one-third for assisting the trial, and the imprisonment was suspended for one year for being her first offence.
While Chiranuch did not face hefty punishment, the judgment confirms that the website must moderate all the comments submitted to the site, or face a possible criminal offence. It does not mention any process of official take-down notice, but simply states that the webmaster has the responsibility to see all the contents and remove the offending ones.
This principle implies that the services with user-generated contents not only comply with the officials, but must also take active steps in moderating the contents. The fact that the law is very vague does not help, and owners of websites may have to err on the conservative side by restricting the user-generated content. Someone jokingly (I suppose) tweeted that they would write a plugin to remove all comments from the website every ten days, based on the judgment of Chiranuch’s case. Prachatai already closed the discussion forum because moderating it was a huge burden to them. This may impede the development of lively online environment in Thailand, probably something desirable to those who wrote this vague piece of legislation.