Could Facebook, Twitter Be Charged Under Thailand’s Computer Crime Act?

On June 3 of last year, MediaShift published the article “Crisis in Thailand Leads to Net Crackdown, Censorship“ on the harassment journalists and netizens faced as political clashes arose in the country.

Many of the comments in a long thread following its publication mentioned the monarchy. Some of the comments were just opinions, but according to the lese-majesté law, they could be considered a threat to Thailand’s national security. According to the Computer Crime Act — the first text the Thai government adopted after the coup d’état in 2006 — such comments could become crimes. Let’s hope none who commented were Thai citizens.

Thailand criminal code’s provision on lese-majesté and the Computer Crime Act are the two main threats to freedom of expression for Thai citizens right now. Their lack of precision and definition makes anyone hosting content that’s considered illegal — even those outside Thai borders — to be responsible for it. The laws rely on consideration, therefore interpretation.

The Prachtai.com Case

The issue could get even muddier this month as the Thai courts rule on the case of Chiranuch Premchaiporn who has been charged under Section 15 of the Computer Crime Act for allowing anti-government comments on the site Prachtai.com.

The case could set a precedent, not only for Thai citizens, but for anyone allowing Thai citizens to comment online.

Independent scholar David Streckfuss told MediaShift: “If Chiranuch is found guilty, it would increase willingness by the Thai state to use the Computer Crime Act in a very broadly interpreted way to suppress lese-majesté-like crimes.”

Even Facebook CEO Mark Zuckerberg should watch the case and Internet freedom in Thailand in general. After all, in less than a month, he’ll know if there can be a viable threat for him to be charged under the Computer Crime Act.

Chiranuch’s verdict should be read on May 30.

International Websites Legally at Stake

In October 2011, Mark Belinsky, co-founder and president of Digital Democracy, a non-profit organization designed to empower marginalized communities to use technology to fight for their human rights, wrote in a Huffington Post article that “if anyone posts anything on Facebook that is considered illegal in Thailand, Zuckerberg could be held responsible.”

This has been confirmed by Chiranuch — also called “Jiew” — the director of independent news website Prachatai.com, soon after the verdict of her trial under the Computer Crime Act was postponed. She told MediaShift: “There is a lot of insulting comments on the Thai monarchy on websites like Facebook, but the Thai authorities will never sue such websites, for they are international, popular, and this would make too much noise.”

So far, there is indeed no example of an internationally known website sued by Thai authorities. According to the Google transparency reports, the Thai government asked YouTube to withdraw 225 videos that were seen as insulting the Thai monarchy. YouTube did it, as Jiew did by closing her web board and the comments section. YouTube did not get charged; Jiew did.

For the past three years, Chiranuch has been charged under Section 15 of the Computer Crime Act with “intentionally supporting or consenting to an offense … within a computer system.” Legally, we would say that she is blamed for not deleting 10 comments fast enough on the Prachtai.com web board. She had been moderating it since 2004, and the comments were to be published with links to an official speech considered to be a lese-majesté offense in the country. Even if she did not understand the accusation at first, Jiew has cooperated with officials since the beginning of her case. She closed the web board, deleted the comments, and obeyed every single request of the authorities. But she is still facing up to 20 years in jail for being an online “intermediary.”

Lack of Precision

But the Computer Crime Act lacks a precise definition of “intermediary.” The case’s verdict all lies on the interpretation of Section 15. If Jiew is found guilty, then everyone allowing content written by a Thai citizen to be hosted online can be held responsible for it. Therefore, Zuckerberg, Twitter’s Dick Costolo, and other online media titans hosting content on a server can be charged under this section — because to be incriminated, the law does not require the content to be hosted in Thailand and, moreover, it doesn’t make any difference between privately or publicly owned websites. This allows all kinds of websites to be charged. And if Jiew is found innocent, the “intermediary” definition will stay this vague.

The lese-majesté provision is also very broad — any citizen can accuse another for a comment that he or she “considers” to be insulting the monarchy. Most of the lese-majesté victims don’t even know who accused them. In this context, a lot of websites are already in a position of potentially being charged under Thai law.

Restrictions Harming Business?

In its 2011 annual report, the Global Network Initiative stated that “issues surrounding intermediary liability in Thailand are one key priority that has already been identified” for 2012. The Computer Crime Act is already harming local businesses, according to Wason Liwlompaisan, a Thai blogger and activist.

“If you were to open an Internet web service in Thailand, like Facebook and Twitter, you could be sued under Section 15,” Liwlompaisan said.

Day by day, Internet business becomes harder and netizens fear for their online space. According to the Ministry of Information, Communications and Technology in Thailand, more than 42,000 URLs were blocked since 2010 and 37 court orders were given for their block. And according to Streckfuss, all the persons accused of lese-majesté in 2010 were convicted, whereas only 87.5 percent of them were in 2005. This also shows that the defendants have less and less opportunities to be acquitted.

Clothilde Le Coz is a journalist based in Phnom Penh specializing in freedom of speech and freedom to connect issues. She is currently a correspondent for Reporters Without Borders in Cambodia and a consultant for the Cambodian Center for Independent Media. Previously to these activities, she was the Washington director for Reporters Without Borders, helping to promote press freedom and free speech around the world as well as serving as their New Media officer. She wrote extensively on online freedom, especially on China, Iran, Egypt and Thailand, and has been contributing to MediaShift since 2009.