THAILAND: Verdict in landmark freedom of expression case

THAILAND: Verdict in landmark freedom of expression case
Asian Human Rights Commission, May 31, 2012

Dear friends,

On 30 May 2012, the Criminal Court read its verdict in the case in Black Case No. 1667/2553, in which Chiranuch Premchaiporn was charged with ten alleged violations of the 2007 Computer Crimes Act (CCA). Chiranuch is the 44-year-old webmaster of Prachatai, an independent online news site, which has served as an important platform for critical news, discussion, and debate for over seven years in Thailand. The charges against her in this case stemmed from her alleged failure to remove comments deemed offensive to the monarchy from the Prachatai webboard quickly enough. The Court found Chiranuch guilty for one out of the ten charges, and she was sentenced to one year in prison and a 30,000 baht fine.  Resulting from her cooperation with the Court and the fact that this was her first offence, this was immediately reduced to a suspended sentence of eight months and a 20,000 baht fine.

The Asian Human Rights Commission (AHRC) welcomes the news that Chiranuch will remain outside prison and be able to continue her and Prachatai’s ground-breaking work expanding and sustaining the space for freedom of expression in Thailand. Yet we are gravely dismayed at the broader threat to freedom of expression and human rights represented by the return of a guilty verdict in this case.

Throughout this case, what has been of concern is the use of the CCA’s vague provisions to constrict freedom of expression by not only making an individual who writes or posts a comment, image, or video online potentially criminally liable, but also making the providers of internet services, such as webboard moderators, equally liable. Under section 14 of the CCA, anyone can be jailed for five years if found to have imported to a computer "false computer data in a manner that it is likely to damage the country's security or cause a public panic… [or] any computer data related with an  offence against the Kingdom's security under the Criminal Code". Under its section 15, the service provider found to “intentionally supporting or consenting to” the use of the computer for this purpose is equally liable as the person committing the offence, which in the case of Chiranuch is the crime of lese majesty, as stipulated in section 112 of the Criminal Code, that, "Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished (with) imprisonment of three to fifteen years." In the case of Chiranuch Premchaiporn, the prosecution alleged that she should have removed comments deemed to be damaging to the monarchy more quickly, and in not doing so, had violated the CCA.

One of the crucial issues for both the prosecution and the defense was the determination of what constitutes “intentionally supporting or consenting to” and, more specifically, an appropriate length of time within which questionable webboard comments must be removed.  In the decision, the abbreviated version of which has been posted on the Prachatai website, the judges responded with an assessment of the appropriate length of time.  The decision notes that in nine of the ten comments in question, they were removed within one to eleven days, and that this indicates that Chiranuch did not intentionally support or consent to them. In the instance of the tenth comment, which remained online for twenty days before she removed it, however, the Court concluded that this indicated “implied consent”. On the basis of this assessment, Chiranuch was found guilty of one charge of violating the Computer Crimes Act.

As Google noted in a statement released after the verdict was announced on 30 May 2012, the CCA poses threats to a free and open internet in Thailand because it lacks “transparent rules about how to identify and react to unlawful content.”Although Thailand’s legal system is not precedent-based, this decision partially begins the process of clarifying the constituent vagueness of the Computer Crimes Act. Within this decision, a period of up to eleven days to remove a comment deemed damaging is acceptable and legal; a period of twenty days is unacceptable and criminal.  Yet the decision introduces another dangerous lack of clarity with the category of “implied consent.” The text of the CCA mentions intentional support and consent, and the category of “implied consent” indicates that whether or not the consent is explicit or implicit is immaterial in the eyes of the law.

Further, in the abbreviated decision the Court addressed the issue of freedom of expression and its relevance in this case. As a reminder, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a state party, mandates that:

"1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals."

While not acknowledging Article 19, the Court addresses section 3 (b).  It is worth quoting at length from the abbreviated decision here:

"The court acknowledges that freedom of expression is a basic right of citizens that is guaranteed and protected in the Thai Constitution. This is because freedom of thought and expression reflects good governance and the democratization of a given entity or nation. Criticism from the people, both positive and negative, provide an opportunity to improve the nation, given entity, and individuals for the better. But when the defendant opened a channel for the expression of opinions within a computer system, she was the service provider and it was within her control. The defendant had a duty to review the opinions and information that may have impacted the country’s security as well as the liberty of others who must be respected as well…. [with respect to comments found to be damaging] the defendant cannot cite freedom of expression in order to be released from responsibility."

On the one hand, there is nothing vague about this statement. Webboard moderators, editors, service providers, and anyone else covered by Article 15 of the CCA must anticipate potential threats to national security by anyone who writes, posts, or uses their services. Yet what remains unclear is the precise method by which the comments on the Prachatai webboard were a threat to national security or the liberty of others. Within this unexplained gap, restrictions on the freedom of expression and related human rights violations flourish. The onus remains on the Court to precisely outline the meaning of national security and the specific threats posed to it.

In view of the above facts, the Asian Human Rights Commission calls on the Thai government to explain this decision, and the logic supplied for it, with its obligations under Article 19 of the ICCPR. Simultaneously, within the context of these continued threats to freedom, the AHRC congratulates Chiranuch Premchaiporn and Prachatai on their continued opportunities to work for the full realization of human rights in Thailand. As additional recent charges and convictions under Article 112 and the Computer Crimes Act indicate, this work is needed now more than ever.