Prachatai: A Case of Intermediary Liability under the Computer Crimes Act

[The following is a case summary on the case of Chiranuch Premchaiporn, who is accused of lese majeste charges under the Computer Crime Act as web-board manager of the online news portal Prachatai. The court verdict for her case is due to be delivered on Monday,30 April 2012. We are republishing this report by Sinfah Tunsarawuth of Media Defence-Southeast Asia to give our readers more background on this matter.]

PRACHATAI CASE REPORT
A Case of Intermediary Liability under the Computer Crime Act

 By Sinfah Tunsarawuth of Media Defence – South East Asia*

 

Case Name, Date, and Citation

State prosecutors of Office of Special Prosecutors of Criminal Case Division 8, Office of the Attorney General (plaintiff) vs. Miss Chiranuch Premchaiporn, director of Prachatai news website (only one defendant). Prosecutors filed the lawsuit with the criminal court in Bangkok on 31 March 2010 with the reference case number as Black Case Number Or. 1167/2553.

Type of Case

Criminal liability of a web master under Section 15 in connection with Section 14 of the Computer Crime Act of 2007. Chiranuch, the defendant, is the director of prachatai.com news website and is being prosecuted as a web master under the Act. Her care is solely a case of intermediary liability.

[On 15 March 2011, a criminal court in Bangkok sentenced a web master of two websites associated with the “red-shirts”, also known as the United Front for Democracy against Dictatorship (UDD) whose members are mainly supporters of ousted prime minister Thaksin Shinawatra, to 13 years of imprisonment. But Thanthawut Thaweewarodomkul was found guilty both as importing lèse majesté content himself onto the websites and as an intermediary allowing other persons to post similar content on his websites. In Thanthawut’s case, he was found guilty under Section 112 of the Penal Code and Sections 14 and 15 of the Computer Crime Act. Thanthawut has decided not to appeal his case, but is seeking a royal pardon.]

Provisions of Laws Related to the Case

Provisions in the Penal Code:

Section 112 Whoever defames, insults or threatens the king, the queen, the heir-apparent or the regent shall be punished with imprisonment of three to fifteen years.

Provisions in the Computer Crime Act:

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.

Case Overview

The plaintiff filed this criminal lawsuit against the defendant arising out of 10 postings appearing at different periods of time between April and November 2008 on web boards of prachatai.com, a mainly Thai-language news website launched in 2004 as an alternative to mainstream print and web-based news media. The postings, according to the plaintiff’s complaint, appeared on the web boards, an open space for visitors to freely debate issues of their interests, mostly for a few days before deletion. There were only two postings that lasted on the web boards longer than a few days – one for 11 days and the other 20 days. Chiranuch has told the court during witness hearings that, as the director of prachatai.com, she is in charge of the content on the web boards.

Officials of Ministry of Information and Communication Technology, who enforce the Computer Crime Act, saw these postings as insulting or defaming the monarchy, known in Thailand as lèse majesté, a criminal offence under the Penal Code. Of the 10 postings, police have so far arrested and prosecuted only one person accused as the author of one of the postings, but the court later ruled this person not guilty on insufficient evidence. Chiranuch is charged as an intermediary (web master) who allegedly has intentionally supported or consented to such postings under the Computer Crime Act (Section 15). She was not charged as committing lèse majesté, or Section 112, under the Penal Code herself.

These postings had been blocked and deleted since they were located. Prachatai, at end of July 2010, decided to shut down its web boards.

The defendant is facing 10 counts of offences of violating Section 15 of the Computer Crime Act for the 10 postings, which could have carried a maximum combined 50 years of imprisonment. But under the sentencing rules of the Penal Code (Section 91), she would face only a maximum jail term of 20 years.

Arrest of the Defendant and Bails

The defendant was arrested by police officers of the Crime Suppression Division in Bangkok on 6 March 2009, but was released on bail on the same day. The bail was first set at 75,000 baht, but Chiranuch asked a lecturer at Chulalongkorn University to be the guarantor. After the case was filed with the criminal court, she has to post another bail. This time the bail was set at 300,000 baht, but Chiranuch asked her elder sister, who is an official of the Bangkok Metropolitan Administration, to be the guarantor. The first bail was then cancelled.

Prosecutor’s Claims and Witness Hearings

State prosecutors claimed that contents in the 10 postings insulted or defamed the king, the queen or the heir-apparent under Section 112 of the Penal Code, or Thailand’s lèse majesté law, and since these statements appeared on the web boards of prachatai.com, Chiranuch as the web master, was charged as having intentionally supported or consented to the commission of such offences.

During the court trial, state prosecutors produced three officials of the Ministry of Information and Communication Technology (MICT), who are competent officials under the Computer Crime Act charged with the duty of monitoring unlawful contents on the Internet and blocking and deleting such contents. One of them said to the court that a web master shall be responsible for watching for unlawful contents, and a possible precautionary measure could be pre-posting screening by the web master. This witness also claimed that lèse majesté statements were “often” found on prachatai.com and that “it was so often that people said if one wanted to see lèse majesté statements, he should look into this website”. Another MICT official, who is a legal specialist at the ministry, told the court that despite the fact that an unlawful statement would later be taken down by a web master, the duration which such statement appeared on the website was deemed as the period that the web master has intentionally supported or consented to posting of such unlawful statement.

The plaintiff also produced six police officers who were involved with prosecuting lèse majesté offenders and their arrest, evidence gathering and investigation.

Court trial started on 4 February 2011 but adjourned after continuing for five days in that month. It resumed on 1 September 2011 with a new prosecutor and a new team of judges, changes due to annual reshuffle of the bureaucracy. The new chairing judge was more senior than the previous one and ran the courtroom in a more controlling manner. He declared that all postings at issue were lèse majesté and would not allow defence lawyers to further argue on this issue. He also cut the number of prosecutor’s witnesses. Altogether, the prosecutor produced 11 witnesses.

The defendant called in nine witnesses during the hearings with Chiranuch herself as the key witness. Others included a co-founder of prachatai.com, a Thai computer expert, a web master of another major web site and a journalism academic. Danny O’Brien, an Internet advocate of the Committee to Project Journalists, also showed up as a defence witness, but he was unable to testify as the translator prepared by the court could not handle the job. O’Brien, instead, had to submit to the court his prepared written statement, which had been translated into Thai language before the submission. Hearings of the last witness finished on 16 February 2012.

Initial negotiations/Pre-trial settlement opportunities

The defendant denied all the charged during police investigation. There was no initial negotiation or pre-trial settlement.

Defenses Used

1.     ISPs or web masters in their role as an intermediary shall not be responsible for contents posted on their websites which they are not the author, which is a standard of practice in the United States and European countries.

2.     Chiranuch has told the court that she had implemented various precautionary measures in trying to prevent unlawful content on her Prachatai web boards, including allowing members to delete inappropriate messages themselves without having to seek the web master’s approval.

3.     MICT has not issued any regulation or guidelines for Internet service providers (ISPs) or web masters to comply with to avoid being seen as “intentionally supporting or consenting” to the commission of crime under the Computer Crime Act. These guidelines could include what is known as “notice and take down”, of which authorities will notify ISPs about unlawful content on their websites and the ISPs or web masters will have to take down such contents after a specified period of time. Defence lawyers have contested the ambiguity of Section 15 under the Act in their written closing statement of the case, as does in an expert legal opinion jointly submitted by International Commission of Jurists and Media Defence – South East Asia.

4.     In the current speed of the Internet and exchange of online messages, it is impossible for any ISP or web master to screen every single piece of content in the computer system under their control.

Advocacy Efforts

1.     Various regional and domestic forums have been organized to discuss problems in the provisions of the Computer Crime Act, its enforcement, and its effect on freedom of expression on the Internet in Thailand.

2.     Chiranuch herself has been invited to speak and participate in various international and regional meetings to talk about her case.

3.     This is one of not many court cases in Thailand which has attracted a great deal of attention from international community. Foreign embassies and international organizations based in Bangkok have constantly sent their representatives to observe the trial. Among the international and regional non-governmental organizations which have sent observers were International Bar Association, International Commission of Jurists, Forum Asia, South East Asia Press Alliance (SEAPA) and Media Defence – South East Asia. The presence of these local and foreign observers has at least put pressure on the court to be more transparent in its proceedings.

4.     International Commission of Jurists and Media Defence – South East Asia have jointly submitted an expert legal opinion to the chief of criminal court in supporting Chiranuch in this case. The submission was delivered to the court on 10 April 2012.

Case Outcome

The criminal court will announce its verdict at 10.00 am on Monday, 30 April 2012.

Written Judgment

About a month after the court reads the verdict, a written version of the decision will be available. Defence lawyers can then request for copies of the written decision.

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*Media Defence – South East Asia, registered in Makati City, the Philippines, is a regional non-governmental organization and a network of media defence lawyers and media freedom activists from Southeast Asian nations. The primary focus of MD-SEA is that of the defence of news media and promotion of freedom of expression within the Southeast Asian region. MD-SEA also provides legal assistance to journalists and news media organizations, supports training in media law and promotes the exchange of information, litigation tools and strategies for lawyers working on media freedom cases.

 

For any further information, please contact:

Sinfah Tunsarawuth (Mr.)
Legal Officer
Media Defence – South East Asia
Email:   sinfah@hotmail.com
Cell phone:   08 1614 3296