February 4, 2011 · Posted in: Cross Border, Free Expression - Asia, Media
Webmaster faces 50 years
in Thai cyber crime law trial
Chiranuch Premchaiporn, executive director and moderator of the Thai news website Pratachai.com, is facing up to 50 years’ imprisonment for violating the country’s Computer Crime Act 2007 (CCA). The trial of Premchaiporn, the first webmaster tried under the act in Thailand, starts today.
Chiranuch was originally charged for violating Section 15 of the CCA for a comment left in October 2008 on the Pratachai.com message board which authorities deemed to be defamatory of the monarchy. Nine more charges were filed against her in April 2009 for messages posted by site members between April and August 2008. Another ten charges were filed against Chiranuch in March 2010 for ten more topics posted in the message boards — messages that had been deleted by the time she was arrested.
In a report, the Southeast Asia Press Alliance (SEAPA) noted that Chiranuch was not arrested because she had posted defamatory images or messages, but for failing to take down offensive messages from her message board. The report further notes that the CCA “assigns a certain degree of liability to intermediaries like Internet service providers (ISPs) and webmasters.”
Media experts have also criticized the law for containing broad provisions that allow authorities to invoke the law to prosecute citizens. It also empowers the government to block and shut down websites, and mete out prison sentences for information deemed offensive by the state. The law, the report adds, has “a chilling effect on people’s behavior and discussions over the Internet.”
The full report of the SEAPA follows.
Spotlight on controversial Thai cyber
crime law as trial of webmaster starts
3 February 2011
The trial of independent news website Prachatai.com executive director and moderator Chiranuch Premchaiporn, who faces 10 counts of violating the Computer Crime Act 2007 (CCA), will start tomorrow, 4 February 2011. This is the first time a webmaster is being tried under this act in Thailand.
The cases stemmed from accusations that Chiranuch violated Section 15 of the CCA when she was not able to take down immediately from the Prachatai web board a comment posted by a forum member on 15 October 2008. Authorities deemed the message to be defamatory of the monarchy.
Caught in the Crossfire: Southeast
Asia’s Press Freedom Challenges for 2011
Freedom of expression continues to come under attack in the region where even the more established democracies are witnessing steadily increasing threats, in the form of violence against the media and efforts by various segments of society to censor and control the free flow of information. This report presents the cases and trends for 2010 and identifies the expectations for the year 2011.
A year before, SEAPA highlighted the Ampatuan massacre in the Philippines when 32 media workers were killed while on duty. In 2010, Thailand became the focus of attention when the media was caught in the cross fire in the political crisis, which culminated in the deaths of 91 people, including two journalists following the military operations on the rallies organized by the Red Shirts (mainly supporters of ousted Prime Minister Thaksin Shinawatra) between March and May. The rally will be remembered among media freedom advocates by the deaths of two journalists, Reuters cameraman Hiro Muramoto and Italian photographer Fabio Polenghi, and many other local and foreign journalists who were wounded in the cross fire.
While Thailand and the Philippines, together with Indonesia, are the region’s strongest democracies, advocates have expressed concern over the trends of impunity, physical threats and legislative controls that could derail years of work to build a free and safe environment for the media to operate. While the emergency decree has been lifted in Thailand, there is still anxiety over the post-conflict period and if the media will be able to operate without fear and favour. In the Philippines, there is still uncertainty over the ability of the new administration under President Benigno Aquino III to deliver on promises to end impunity. Following the August 2010 hostage crisis in Manila in which nine people died, politicians are considering regulations to restrict the role and movement of the media in similar situations. As many as 47 cases of violence against journalists were recorded in Indonesia, including one journalist killing in Southeast Maluku.
While impunity will remain high on the agenda for press freedom monitors and advocates, there is also concern that new legislative instruments are being introduced to stifle the media across the region. Indonesia could see the introduction of a new secrecy law that is being sponsored by the Defence Ministry. In the Philippines, legislators have said that their support for the passage of a freedom of information law is conditional upon civil society support for a Right to Reply bill that journalists groups have opposed. In Cambodia, the government amended the Penal Code at the end of the year to introduce provisions on defamation, libel, slander and contempt. In addition, a new law to regulate non-governmental organizations is on the table and has raised concerns about the extent to which it will provide the regime an excuse to clamp down on critical groups. In Malaysia the government has set up a “special unit” to monitor the Internet with no less than three Cabinet ministers in the committee. There are plans to draw up new guidelines to govern sedition in cyberspace, with no public consultations to date on what this law would entail.
During the year, Burma was once again in the spotlight for its national elections and the historic release of opposition leader Aung San Suu Kyi. Tighter regulations were introduced over the year concerning the registration and activities of political parties as well as what the media could report in the build up to the elections on 9 November. The foreign media was mainly kept out and in the coverage of Suu Kyi’s release on 13 November, several journals were suspended for giving her too much news space.
As in the last few years, the online space has also come under serious attack, as it continues to be positioned as a valuable platform especially where the mainstream media is under strict control or alternatives are few. The year saw a number of bloggers and Internet activists in Vietnam arrested and harassed by the authorities. Some of the bloggers had been writing about sovereignty issues, namely the controversial government award of the bauxite mining concession to a Chinese company. In Thailand, the emergency decree meant that a newly established Center for the Resolution of the Emergency Situation (CRES) was censoring cyberspace, and at the same time, the civilian government through various ministries was continuing its own blocking of websites. At the lifting of the emergency, up to 400,000 websites had been blocked and none have been subject to judicial scrutiny at this point.
The outlook for the year 2011 is generally not encouraging as there is little sign of political will to address impunity by the governments in the region or to endorse and push for media reforms. In contrast, there are moves to strengthen some of the controls over the media and flow of information, and this will be particularly problematic as national elections are expected in Thailand and Singapore, and possibly in Malaysia, and a regional one in the Autonomous Region of Muslim Mindanao. It is difficult to speculate how the government chooses to deal with opposition leader Aung San Suu Kyi in Burma in the post-election period and if the media will once again be caught in the political crisis in Thailand as the country anticipates elections this year. There is guarded optimism that at the regional level, the human rights agenda will take on a more important focus as Indonesia assumes the Association of Southeast Asian Nations (ASEAN) chair for the next year, but this will depend largely on the commitment at the national levels for reforms.
For the individual country reports please click here.
She was arrested on 6 March 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 7 April 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 1 June 2009.
The public prosecutor filed 10 charges on 31 March 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.
Should Chiranuch be found guilty of the said charges, she faces a total of 50 years’ imprisonment or a THB1 million fine (USD32,000). Section 15 provides the same penalty as the offenses described in Section 14 – imprisonment of not more than five years or a fine of not more than THB100,000 (USD3,200).
The prosecution will present its witnesses on February 4, 8, 9, and 10, while the defense’s turn will be on February 11, 15, 16, and 17.
Independent news website
Prachatai is an independent online news site that provides mainly news on social, political, and human rights issues, and publishes interviews with, and articles by, academics, activists, human rights organisations, and other non-governmental organisations (NGOs).
It also hosts an online TV programme “The Country Is Not Ours”, an online radio programme “Prachatai Radio”, a blog service “Blogazine”, and formerly hosted an online forum “Prachatai Webboard”.
The Prachatai webboard was a popular site, indicated by the 250 new topics and 2,500 new comments per day in 2008, despite having only one full-time moderator and a number of volunteers.
During the declaration of the Emergency last year following the political clashes, the Center for the Resolution of the Emergency Situation (CRES) used the Emergency Decree to censor websites and other media and the Prachatai was among them, though the forum page was not blocked. Though the Emergency Decree was lifted in December 2010, the website remains blocked. Prachatai, in the intervening period, has put up a new website every time the government censored the current website.
Cyber crime law
The Computer Crime Act, though introduced only in 2007 under the post-coup government of General Surayudh Chulanont, has proven to be quite controversial.
Critics claimed that this law was passed to stifle online discussions and criticism of the coup that ousted former Prime Minister Thaksin Shinawatra, as well as to head off debates about the roles and influence of the military and the monarchy in the Kingdom’s affairs.
Relevant to Chiranuch’s case are the law’s Sections 14 and 15.
Under Section 14, “[a]ny person who commits an offense by any 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 into 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 a third party or the public;
“(2) that involves import into a computer system of false computer data in a manner that is likely to damage the country’s security or cause public panic;
“(3) that involves import into 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);
Vague provisions
Section 15, on the other hand, provides that “[a]ny 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.” Webmasters are covered in this section.
Critics claimed that vague provisions like “damage the country’s security or cause public panic” and “offense against the Kingdom’s security”, are open to broad interpretations, and in any case compound already existing provisions in the Penal Code about the same issues.
According to a Thai Netizen Network commissioned legal analysis prepared by Thai media lawyer Sinfah Tunsarawuth and international free expression expert Toby Mendel, national security and lese majeste are broadly interpreted and applied and it has become too easy to invoke such accusations under the Computer Crime Act.
Chilling effect
Aside from broadly-worded provisions, the law empowers authorities to block or shut down websites deemed as harmful by the State, and it can also mete out prison terms over disputed news, commentary, and information disseminated online, and thus have a chilling effect on people’s behavior and discussions over the Internet.
Sinfah and Mendel noted how authorities tasked to implement the law enjoy vast powers. Section 18 of the Computer Crime Act gives the authorities the power to investigate and gather evidence of an offense committed by or via computer. Data or traffic from any computer system suspected of being used for an offense can be copied, while computer data or computer systems can be accessed to gather evidence. Authorized officials can also demand for passwords and decode any person’s computer data, and seize or attach any computer system for up to 90 days as part of their investigation and gathering of evidence.
They added that one problem with the law was that it does not stipulate how these powers are to be used, or even in what sequence are the prescribed steps should be taken. Hence, these provisions are open to abuse. According to the report: “The powers under Section 18 are set out in eight sub-sections, but the Act does not indicate how the competent officials should apply them. As a result, officials have the discretion to choose which procedure they wish to use, regardless of the impact this might have on the suspect. Officials, for example, can choose to seize an entire computer system or data storage device, rather than simply copying the data they want and returning the computer.”
Meanwhile, the law also empowers the authorities to shut down a website through a court order. However, this provision might run into legal complications as Thai media advocates said that Article 45 of the Thai Constitution prohibits the closing down of media outlets.
The Computer Crime Act also provides harsher penalties compared to the Penal Code. For example, a person convicted of defamation under the Computer Crime Act can be meted a prison term of three years, as compared to two years under the Penal Code for the same offense.
Chiranuch’s case
Chiranuch was not accused of posting defamatory images or messages. Instead, she was accused of failing—as Prachatai webmaster—to immediately take down offending messages from the Prachatai web board.
Media experts said that unlike its counterpart laws in Europe and the US, Thailand’s Computer Crime Act assigns a certain degree of liability to intermediaries like Internet service providers (ISPs) and webmasters.
Some see Section 15 as problematic because it places unrealistic burdens on webmasters, ISPs, and non-editorial gatekeepers who have to contend with potentially hundreds if not thousands of lines of commentary daily, and ultimately would encourage censorship and self-censorship on many levels. Chiranuch’s Prachatai.com site, for example, has “voluntarily” decided to take down its online forums in July 2010, in a surrender to the impossibility of policing every single item that passes through its boards.
Charged, convicted, pardoned
Chiranuch’s is not the only case under the CCA. A Thai engineer, Suwicha Thakor, was sentenced to 10 years’ imprisonment on 3 April 2009 for creating and distributing online images that were deemed defamatory against the royal family. His original sentence of 20 years was reduced in half after he pleaded guilty. Suwicha was granted royal pardon and was released on June 2010.
In November 2009, authorities charged four individuals with violation of Section 14. The case stemmed from accusations that they posted rumors online about the King’s health. In mid-September, the King was hospitalized. When the rumors of his deteriorating health circulated online, Thai stock prices plunged for two consecutive days in October. All the accused have been released on bail and their cases have not yet been filed with the court.
Chiranuch’s case will be closely monitored as this is the first time an intermediary is facing charges under the CCA and particularly among the monitors and advocates of internet freedom who see a global trend of control over cyberspace.
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 andResponsibility (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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