Computer Crime Act misused for defamation charges, say experts

Phuket – Thailand’s controversial Computer Crime Act has been misused to prosecute defamation in restricting free speech online, expert witnesses said on Thursday at a court trial of an online defamation case in this southern island city.

“From our human rights inquiry, the Computer Crime Act has become a tool in restricting freedom of opinion,” Dr. Niran Pitakwatchara, a national human rights commissioner, told the provincial court here as a defendant witness in a trial where the Royal Thai Navy was prosecuting Phuketwan.com, a small English-language news website for criminal defamation.

“The intention of the Computer Crime Act is to prevent and suppress computer-related crimes,” Niran said. “But state agencies have been using it as a tool in violating freedom of opinion.”

He said for any allegation of reputation being hurt, the defamation law under the Penal Code was the more appropriate provisions to be applied.

Phuketwan is being prosecuted for a single paragraph in a news article it published on 17 July 2013 about the alleged involvement of some naval forces in human trafficking of minority Rohingya ethnic groups out of Myanmar. The paragraph was, however, a direct quote from an award-winning investigative report by Reuters.

That paragraph said: “The Thai naval forces usually earn about 2,000 baht per Rohingya for spotting a boat or turning a blind eye, said the smuggler, who works in the southern Thai region of Phang Nga (north of Phuket) and deals directly with the navy and police.”

A navy officer told the court on Tuesday that the Royal Thai Navy was upset by the mentioning of earning 2,000 baht (about US$60) per Rohingya in the paragraph.

Nirun said Phuketwan editor Alan Morison, an Australian, and reporter Chutima Sidasathian, a Thai, filed a complaint of having their media freedom violated with his office after the prosecutors filed a criminal case with the court here on 17 April 2014.

Nirun said he held meetings twice between the two conflicting parties in trying to mediate for a settlement, but did not succeed.

He said while the navy insisted that the terms “Thai naval forces” in the paragraph referred to the Royal Thai Navy, Morison and Chutima said it could mean any individual or combined maritime forces.

Confused application

Sawatree Suksri, a law lecturer at Thammasat University in Bangkok, who has done research on the Computer Crime Act, separately told the court that some provisions in the law used terms with broad meaning, creating confusion in its application.

Sawatree said in particular that the current wording of Section 14 (1) of the Act allowed people to think that it could be applied to sue online defamatory statement.

Section 14 (1) says any person who is involved with importing into a computer system of forged or false computer data, in part or in whole, “in a manner that is likely to cause damage to a third party or the public” could be punished with imprisonment of up to five years or a fine of up to 100,000 baht (about US$2,980) or both.

The terms “to cause damage to a third party” have been interpreted to include damaging people’s reputation, and, hence, the provisions have been applied to prosecute online defamation.

Sawatree said the provisions were meant to prosecute forging of documents electronically as before the enforcement of the Computer Crime Act in July 2007, there was no law that could deal specifically with such a crime.

She said penalty of Section 14 (1) was also much higher than that of defamation provisions under the Penal Code, which allow for only up to two years of imprisonment.

The prosecutors of this case were, again, absent from the entire hearing on Thursday. They told the court on Wednesday that they did not want to cross-examine the two defendants and their witnesses. The absence of prosecutors in court trials is not uncommon.

The hearing of the Phuketwan case has finished as the court has now heard the arguments of both the prosecutors and defendants. The court set the first of September 2015 as the date for its verdict reading.

Morison and Chutima, if found guilty, could each face up to five years of imprisonment or a fine of up to 100,000 baht (about US$2,980) or both under the Computer Crime Act for publishing and disseminating false information that hurt the navy’s reputation. The navy does not seek any financial damages from them.

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