Caught between ethics and politics

[Thailand country report for Working within bounds: Southeast Asia’s Press Freedom Challenges for 2013]

Thailand generally experienced a politically peaceful and naturally calm year in 2012 after massive street protests paralyzed the capital’s central commercial district in 2010 and catastrophic floods devastated a large portion of the country and Bangkok in 2011.

The government led by Prime Minister Yingluck Shinawatra, Thailand’s first female premier, celebrated its first year’s anniversary in power in August after winning the general elections on 3 July 2011 on the legacy of her elder brother, former prime minister Thaksin Shinawatra, who has been in exile since being ousted by a military coup in September 2006. Yingluck passed her first year’s test of leadership as Thai politicians and the people were still trying to grapple with the consequences of the political crisis and damage left by the floods.

On media scene, the year 2012 saw the first full year of operation of the full-fledged National Broadcasting and Telecommunications Commission, or NBTC, the country’s independent regulator of radio and television broadcasting and telecommunications businesses, after the 11 commissioners were selected in a strenuous process by the Senate on 5 September 2011 and appointed by a royal command on 7 October 2011.

The NBTC, in undertaking its first major task that attracted widespread public attention, successfully held the auction for 3G mobile technology in October 2012, which was criticized for receiving too low a price of 41.6 billion baht (US$1.43 billion) from the bid winners.

Political Polarization

On 24 November 2012, three Thai photographers were physically attacked by police officers and held for about an hour during an anti-government protest organized by a nationalist group known as Protect Siam Organization at the Royal Plaza in Bangkok. The Protect Siam Organization, which openly announced its aim to topple the government of Yingluck, held its first rally a few weeks earlier on 28 October, which attracted a crowd larger than expected, and which was widely covered by local media. The group’s leader, Gen Boonlert Kaewprasit, previously a little known retired army officer, became a household name overnight.

The three photographers –ASTV Manager daily, T News agency and Thai PBS television station – were assailed by police officers amidst a confrontation between protesters and police at the rally site surrounded by key government and military buildings. Senior police officers said later that the three photographers did not show any badge or emblem that they were media people. The three have filed charges of physical assault and unlawful detention again the police officers.

The two rallies, the attack on the photographers and media coverage of the Protect Siam Organization local media demonstrated the simmering polarization in Thai society between those who detest former prime minister Thaksin and those who support him. These incidents during the last quarter of 2012 shows that if either side would have a strong and charismatic leader who could mobilize the public onto the streets to protest against the opponents, violence would not be a far-fetched possibility.

Ethics case

On 20 September 2012, Thailand’s top anti-graft agency, National Anti-Corruption Commission (NACC), ruled that Sorayuth Suthasanajinda, a well-known television personality and his company, Rai Som Co Ltd, collaborated with two officials of state-owned MCOT Public Company Limited, which runs Channel 9 television station and a number of radio stations, to allow Sorayuth’s TV show then on air on Channel 9 to air extra commercials without paying the extra charges, amounting to 138.8 million baht (US$4.78 million).

MCOT already dismissed one of the officials in March 2009. The NACC has sent its findings to MCOT to consider taking disciplinary action against the other official, and for the Office of Attorney General to decide whether to file a criminal case

On 4 October 2012, the National Press Council of Thailand (NPCT) issued a statement saying that though the case has not reached its conclusion, Sorayuth “should consider himself to protect the entire system of media for people’s continued confidence and trust”. A day later, Sorayuth resigned as a member of Thai Journalists Association, an affiliate of the press council. However, he has continued to run his television programs on Channel 3.

Regulation of broadcast media

The NBTC spent  most of 2012 drawing up rules and regulations for broadcast media, which are currently inundated with unlicensed provincial subscription and satellite television and low-powered radio channels.

The radio stations alone number as high as 7,000 across the country, causing signal interference in many urban areas in the provinces. The NBTC started to give out “temporary” licenses, renewable every year, to these radio broadcasters in January 2013. The broadcasters, as stipulated in the law, are categorized into community radio (operated by private, non-profit entities), public service radio (operated by state agencies, non-profit entities or educational institutes) and commercial radio.

As of early February 2013, the NBTC has granted 848 such temporary licenses to 111 community radio operators, 125 public service radio operators and 612 commercial radio operators. The agency has not yet granted any longer-term licenses to the operators as it will have to deal with the issue of allocating radio spectrum for radio stations first. Nor has it issued any license to television operators.

Lèse majesté-related cases

Lèse majesté law, or Section 112 of Thailand’s Penal Code, continued to grab attention of freedom of expression advocates in local and international community. Section 112, which could subject any person who defames the king, the queen, the heir-apparent or the regent to a maximum jail term of 15 years, has put Thailand in the spotlight since the 2006 military coup, which saw a sharp rise of prosecution under the law.

However, despite being a quiet year in terms of new charges of lèse majesté, there were a important developments on ongoing cases and of the law itself in 2012.

On 30 May 2012, after on and off court hearings that went over a year, a criminal court in Bangkok read the verdict on an intermediary liability case of Chiranuch Premchaiporn, director of Prachatai news website. She was prosecuted for 10 postings on Prachatai web boards, a previously unregulated space to freely debate various issues, that were seen as lèse majesté.

While was established during the hearings that she was not the author or the person who posted the said material, but she was prosecuted under Thailand’s Computer Crime Act of 2007 as the web master of Prachatai.com, in connection with Section 112 of the Penal Code.

In the judgment, the court found her guilty for only one count out among 10 filed by prosecutors and sentenced her to one year of imprisonment and a fine of 30,000 Thai baht (1,034 USD). However, the penalty was reduced to eight months of imprisonment and a fine of 20,000 baht (US$690). The jail term was suspended for one year.

Chiranuch has appealed the verdict, but the court of appeal has not set any date for its verdict yet.

The fact that Chiranuch was found guilty for content written by others has sent alarms throughout the cyber community in Thailand. Many web sites took precautionary measures and shut down their discussion space or demanded any visitors to register and disclose their identity. Prachatai itself closed its web boards in July 2010 after Chiranuch was formally charged by the prosecutors.

Chiranuch’s sympathizers were relieved that she did not have to spend any time in jail. But others facing similar charges of lèse majesté were not as lucky as she was.

Somyos Preuksakasemsuk was prosecuted for two articles published in February and March 2010 in a magazine, which were seen as defaming King Bhumibol Adulyadej, Thailand’s widely revered monarch. He was not the author of the two articles, but was charged for publishing, selling and distributing the Voice of Thaksin magazine which contained the two articles. Somyos has been in pre-trial detention since he was arrested on 30 April 2011, and was denied bail nine times by the court.

On 23 January 2013, the criminal court found Somyos guilty of two counts and sentenced him to 10 years of imprisonment. The harsh sentence has drawn an outcry from international human rights organizations.

Earler, before the Somyos verdict, the Constitutional Court ruled on petitions from Somyos and another lèse majesté  defendant, that Section 112 of Thailand’s Penal Code was not unconstitutional.

The Court said that Section 112 is not contrary to the Constitution’s rule of law principle, its categorization as a national security crime in the Penal Code, is appropriate and proportionate in order to protect the monarchy. Moreover, the law has been applied without affecting the essential substances of the people’s constitutional liberty in expressing opinion. This ruling seems to leave no room for any further challenge of the constitutionality of Section 112.

All the court proceedings and verdicts concerning the lèse majesté cases – including the cases of Chiranuch, Somyos, Ekachai Hongsakul and Jor Gordonare indicative of a continuing long and divisive battle between advocates of freedom of speech especially on the internet and those for censorship, which will go on until the future of Thai monarchy is allowed to be discussed freely in the public domain.

Movement to reform lèse majesté law

The first ever public movement to reform the lèse majesté law in Thailand came out in January 2012 when the Campaign Committee for the Amendment of Article 112 (or Section 112), comprising various groups of people in the Thai society, launched a major campaign. The movement aimed  to gather supporters in calling for changes to the law, based on a draft earlier proposed by Nitirassadorn, a group of law lecturers at the state-owned Thammasat University. Over the next five months, the campaign was able to collect 26,968 names to support their initiative, well above the constitutional requirement of 10,000 people to initiate a law before parliament.

On 29 May 2012, the campaign submitted its proposed draft to parliament president Somsak Kiatsuranon. However, later on 11 October 2012, Somsak announced his rejection of the proposed amendment, saying that Section 112 was not a law about rights and liberties of Thai people, or fundamental state polices, on which the Constitution allows proposed changes from the public.

Somsak reaffirmed his decision even after the campaign lodged an appeal, in which they argued that Section 112 concerned freedom of expression, and thus part of rights and liberties of Thai people.

The campaign has since then lost momentum, partly due to the lukewarm interest of the government of Prime Minister Yingluck, and even though many of her “red-shirt” supporters have been imprisoned for lèse majesté. The movement also seems to receive little support from the general public. However, leaders said they would continue their campaign for changes to the lèse majesté law, although their next legal challenge to the law remains unclear.

In the last quarter of 2011, the National Human Rights Commission set up a working group to study problems on the enforcement of Section 112, which could possibly come up with proposed changes to the law. The working group finished its report in late 2012. However, the commission has not yet released its contents.

Rise of online media

According to the state’s National Electronics and Computer Technology Center, or NECTEC, in 2009, Thailand had 18.3 million internet users.While according to the NBTC, broadband penetration is at 6.59% of the population,and there are 87.4 million mobile phone numbers as of 2013..

National Statistical Office under Ministry of Information and Communication Technology provides a set of more conservative figures. According to its survey in 2012, Thailand has a population of about 62.9 million of people of six years old and above. Among these, 21.2 million people, or 33.7%, use computer; 16.6 million, or 26.5% use internet; and 44.1 million, or 70.2%, use mobile phones.

The National Statistical Office has not done any study on Thai people’s access to subscription or cable television, satellite television or low-powered radio and their reception of information through these new sources of media. Nor has the office done any study on Thai people’s use of social networks.

However, according to Socialbakers, a social media analytics platform, Thailand has 18.4 million Facebook “monthly active users”, ranking 13th among 212 countries and territories in the list. The figure amounts to 27.5% penetration of the country’s population and 125.8% penetration of online population.

More Thai people are likely to have access to internet in coming years as the Thai government rolls out high-speed wi-fi access across the country.

As the number of Thai people having internet access rises, the population has become more active online, resulting in rising offences committed through the cyberspace, including lèse majesté.

A trend has also arisen that those facing defamatory charges for their online materials will be prosecuted under the Computer Crime Act (CCA) in connection with the Penal Code. The problem is, while the defamation offence under the Penal Code is compoundable – meaning if the plaintiff decides to drop the charges, the case will have to be dismissed from the court – most of the crimes committed under the CCA are not.

If defamation is committed online, the accused can be charged under Section 14 (1) of the Act (on importing damaging information into a computer system), which would proceed in court even if the plaintiff drops the charges.  A number of Thai individuals had been charged under the CCA for their alleged defamatory materials, but so far no case has involved media people.

Thai journalists have also used social networking as a means to expand their audience and as a source of information. Many reports now attributed their information sources from Facebook or Twitter.

Outlook

For 2013, the NBTC plans to give out the first 12 licenses for digital public service broadcasters, out of a total of 48 licenses planned. Of the remaining licenses, 24 will be for commercial television and the other 12 for community television. These new licenses will likely bring in new operators and content providers in Thai television.

The plan, if fully materialized, will expand the number of television channels in the country, creating more choices and options for both broadcasters and viewers.

Meanwhile, the Thai media continues its soul-searching for the correct balance between ethical responsibility and freedom of speech, which is currently being exercised over the political stream with  no solution or remedy to the political divide.

While the print media revisits the effectiveness of its self regulatory regime, the broadcast sector is also searching for the right framework to regulate the booming digital broadcast industry which could see an unprecedented volume of new content to feed the increased number of television channels.

The NBTC is facing a formidable challenge this year as an independent regulatory body on how to exercise prudent judgement in the interest of the public and freedom of expression. Two incidents have emerged in 2013 related to the widely practiced issue of self censorship and political interference in the broadcast sector.

In addition to establishing a fair and transparent regulatory regime and for the reallocation of  public airwaves currently held by the holding by the army and the state, NBTC must struggle to design fair rules governing broadcast contents, amid growing public concern on the proliferation of illegal commercial advertisement and programs in the subscription satellite and cable television that can harm public health and good morale of the society.