Human Rights: Webmaster’s trial highlights Thai authorities’ criteria & procedure of policing internet

The Following is from Prachathai:

Webmaster’s trial highlights Thai IT authorities’ criteria, procedure of policing Internet

Wed, 16/02/2011 – 14:55 | by prachatai

The trial of webmaster Chiranuch Premchaiporn, who stands accused of 10 counts of violating the Computer Crime Act (CCA) 2007 as an intermediary who facilitated discussions later deemed as defamatory to Thailand’s royal family, ran for five days before the Criminal Court decided to postpone it to September 1 this year.

Chiranuch is also director of the independent news and analysis website Prachatai.com, which hosted a web forum that was later closed down in 2010 due to government pressure to self-censor.

The trial, significant for its implications to the free expression online environment in Thailand, was attended by a notable number of observers, including representatives from civil society groups, media legal defense organizations, foreign embassies and foreign journalists.

The prosecution presented five of its nine witnesses on February 4, and 8-11.

The hearings, conducted at the Criminal Court in Ratchadaphisek Road in Bangkok, highlighted how authorities, particularly the Ministry of Information and Computer Technology (MICT), defined lese majeste and online intermediary liability, and the MICT’s procedures on the handling of online messages accused of containing contents defamatory to Thailand’s monarchy.

In his testimony, MICT IT regulation bureau head Aree Jivorarak revealed that in the view of authorities, lese majeste online did not necessarily mean outright defamation of the monarch or the royal family but even the mere allusion or references to them would suffice for liability. He interpreted certain phrases and even certain pronouns in the messages in question as alluding to members of the royal family.

Related to this, another prosecution witness, private lawyer Pairat Yawong said in his testimony that even the retelling of certain factual accounts of the royals’ action, in this case, the posting of a message discussing the attendance of the Queen to a funeral of a member of the Yellow Shirts in 2008, could constitute lese majeste just because of the perceived danger it would pose to society.

The cross-examination of Aree also revealed that the MICT had not been able to identify the persons behind nine of the 10 posts in question because according to him, aside from using aliases, the posters could only be identified through the Internet Protocol (IP) addresses. The only one whom the MICT could identify was the intermediary, in this case, Chiranuch who is the webmaster.

The criminal liability of the third party intermediary was also discussed. Upon cross-examination, MICT legal advisor Thanit Prapathanan admitted that even if a webmaster took down messages that contained lese majeste, the ministry would still proceed with a lawsuit because the ministry is compelled to prosecute when lese majeste was involved.

At the time the court order to shut down Prachatai.com was issued, Chiranuch had already removed the offending messages from the website’s forum section. He said that the law does not require any proof of intent to defame; the webmaster, if he or she failed to perform self-censorship on messages that contain “blatant” lese majeste material, would still be liable.

Despite this, Thanit implied that the MICT is exempted from similar obligations when he said that the ministry could not take down links to online messages that may be liable to lese majeste from its own website. Earlier, the defense lawyers noted that the MICT website provides links to online contents that have lese majeste materials.

According to the witnesses, the MICT observed the following procedures:

1. Designated MICT staff monitor websites, usually with the use of Google;

2. When an online material deemed containing lese majeste material is spotted (whether by the MICT or other government agencies), the MICT staff takes a screen shot, saves it and the URL, converts them to different formats including PDF and MS Word files;

3. These are forwarded to the MICT legal affairs to determine if the contents are liable for lese majeste;

4. At the same time, the Internet Service Provider (ISP) concerned is contacted and a copy of the URL containing the offending material is sent, together with a note asking the webmaster to remove said material;

5. The legal affairs department, once it determined that the contents have blatantly lese majeste material—and if the webmaster or ISP has not yet taken down the offending material—will forward their report and recommendation to the Ministry of Justice or the courts;

6. The court will issue an order to block the website;

7. The court also issues the order to the Royal Thai Police to go after the offending party;

8. In the case of Chiranuch, the police sent several officers and a representative from the MICT to the Prachatai offices to arrest her and seize their computers.

The prosecution witness on February 11, Police Lt. Wiwat Sittisoradej, said he conducted a forensic analysis of Chiranuch’s computer. Upon cross-examination, Wiwat told the court that based on his analysis, three of the posts that supposedly contained lese majeste messages were indeed deleted from the Prachatai webboard.

Chiranuch is accused of violating Section Section 15 of the CCA for not immediately taking down a comment posted on the Prachatai web board by a forum member on October 15, 2008. Authorities deemed the message to be defamatory of the monarchy.

She was arrested on March 6, 2009 at the Prachatai office and the police also confiscated her laptop and copied all its data as part of the investigation.

Nine more charges were filed against Chiranuch by the police on April 7, 2009. Police said these covered nine messages posted by members between April to August 2008. The case file was sent to the public prosecutor on June 1, 2009.

The public prosecutor filed 10 charges on March 31, 2010 against Chiranuch, each corresponding to the 10 forum topics posted at different times. However, even before she was arrested, all the offending messages had already been removed from the board.

If found guilty of the 10 charges, Chiranuch faces a total of 50 years’ imprisonment or a THB1 million fine (USD32,000).

The prosecution will resume its case on September 1 for eight days, and the defence team has been allocated four days starting October 11.

About SEAPA

SEAPA is the only regional organization with the specific mandate of promoting and protecting press freedom in Southeast Asia. It is composed of the Jakarta-based Alliance of Independent Journalists (AJI) and the Institute for Studies on the Free Flow of Information (ISAI); the Manila-based Center for Media Freedom and Responsibility (CMFR) and Philippine Center for Investigative Journalism (PCIJ); the Bangkok-based Thai Journalists Association (TJA); and the network’s Kuala Lumpur-based associate member, the Centre for Independent Journalism (CIJ).

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