Chiranuch Premchaiporn, Director of Prachatai, has appealed against the court verdict which found her guilty under the cyber crime law.
On 30 May, Chiranuch was found guilty under the 2007 Computer Crimes Act, and was sentenced to one year in prison with a fine of 30,000 baht. The court, however, reduced the penalties by a third, citing her useful cooperation in the legal process, and suspended the jail sentence for one year.
In her appeal, she argues that the 2007 Computer Crimes Act does not have provisions which require web service providers to monitor all comments posted on websites, and there are no rules and regulations set for web service providers to follow in regulating content on the internet.
She says that the guilty verdict by the Court of First Instance was based on a certain ‘standard practice’ that web service providers were supposedly to follow, but the prosecution was not put to the task of substantiating such a standard practice during the trial.
She asks the Appeals Court to consider instead standard practice followed by web service providers all over the world, particularly in countries where internet services have long been available and developed.
As the internet is a global network, the court has to consider a universally accepted standard practice, and take into account any impact on the rights and freedoms of the people, as well as the costs and practicality of website administration, and technological limitations, she says.
According to Chiranuch’s appeal, Wanchat Phadungrat, the founder of the popular Thai webboard Panthip.com, testified in court that web service providers had already had measures in place to filter or block inappropriate contents, and asked readers to help with the monitoring. If web service providers are required to screen the content of every comment posted on their websites, it will be very costly, affect their business, and be inconvenient for readers. As a result, Thailand’s internet business will be put to a disadvantage, as the costs of running websites will increase and internet users may turn to other web services, whose servers are located abroad, such as Facebook and Twitter.
Internet expert Danny O’Brien, another defence witness in Chiranuch’s case, also testified regarding standard practice and noted that in Europe web service providers are considered ‘intermediaries’ who cannot be held responsible as long as they are unaware of illegal content, and remove such content when prompted.
In the US, intermediaries are also not held responsible if they remove illegal content upon notification, and are not required to monitor illegal activities in their network.
Pirongrong Ramasoota, an expert in mass communications, has conducted research on the regulation of internet content, and proposed that the authorities should act first to notify web service providers to remove any illegal content, and share the responsibilities.
According to Pirongrong, in 2008, about a year after the cyber crime law took effect, the Royal Thai Police and the Ministry of Information and Communication Technology invited web service providers, including Chiranuch, for a meeting to consult on how to deal with illegal content. It was agreed that, if any inappropriate content was found, web service providers would exercise their discretion in screening or blocking it, and the police and the MICT would notify them if they found any such content.
In principle, web service providers are generally regarded as intermediaries, who take no responsibility for comments posted by other individuals, except when they have been made aware or notified of such comments and taken no action, Pirongrong says.
In the case of Chiranuch, she has always acted promptly upon detecting any inappropriate content by herself or upon notification by the authorities, and also implemented various preventive measures in due course, he says.
Chiranuch continues to say in her appeal that, after the coup in 2006, the number of readers’ posts on the Prachatai webboard dramatically increased, with 300 new threads and 28,000 comments posted daily. With posters using coded words to avoid Prachatai’s filtering system, monitoring was not easily feasible as the court seemed to understand, viewing that to have allegedly offensive messages remain on the webboard for 20 days was by default her intention.
She says that in a criminal trial the prosecution has the burden to clearly prove the defendant guilty as charged, but in her case it never produced any evidence to support its claim of a standard practice for web service providers, and did not prove that her practice failed to follow such a standard. The decision of the Court of First Instance was not in line with the principle of hearing evidence in a criminal trial, and the prosecution did not prove her intention in committing the offences.