1. The more active citizens

Given the public curiosity that there could be corruption in the construction of the Rajabhakti Park, and if so, who among the government officials, the military junta or members of the coup makers have been involved, it has led to at least three intriguing activities initiated by media and citizens keen on corruption issues including;

1) Widespread discussion and exchange and the comparison with corrupt practices that took place during the previous administrations and the hope placed on “reform”

2) An attempt to acquire documentary evidence including through invoking the Official Information Act

3) An attempt to present the findings which may implicate a number of individuals and organizations in various points of time, through storyboards, through pictorial stories, which has eventually led to the understanding of the big picture or the observation of the contradiction of information revealed by different persons

A large number of citizens have participated in the three investigative activities. They have shared the information among their friends and relatives regardless if they concur with the information or not. Some have even added more information on the information they have distributed in an attempt to convince people who receive the information.

2. Suppression of the dissent

On 8 December 2015, something that should not have occurred under the rule of the group of individuals declaring their conviction to rid corruption has happened. The authorities invoked power as per Section 44 of the 2014 Interim Constitution to arrest Mr. Thanakorn, an internet user. Maj Gen Wijarn Jodtaeng, the legal chief of the National Council for Peace and Order (NCPO) stated that it has been known to the military intelligence that Mr. Thanakorn was the one who has distributed the diagram “The Uncovering of the Rajabhakti Park Corruption Scam”, part 1, 2 and 3 and the picture of “Rajabhakti Park needs 5,920,000 lotus leaves to cover (the scam) entirely”. Both social media posts hints at the persons probably involved with taking the kickbacks from the project. The authorities believe on the contrary that it was false information, and they have raided the company where Mr. Thanakorn works and then raided his home to seize computer and mobile phone belonging to him. The officers from the Technology Crime Suppression Division (TCSD) were there to investigate and the suspect was apprehended and taken for questioning at a military barrack, though its location was not disclosed and the attorneys have been denied access.

After the initial investigation, Mr. Thanakorn was charged around 17:30 on 9 December 2015 for “bringing into computer system false computer data” as per Article 14 of the Computer-related Crime Act and for inciting unrest as per Article 116 and “lèse majesté” as per Article 112 of the Penal Code. He was accused of committed three offensive acts including “(1) clicking ‘like’ on an image posted on facebook whose content is deemed defamatory to the King, (2) copying and sharing an satirical facebook image of the dog raised by the King and (3) copying and sharing a diagram exposing corruption in the Rajabhakti Park which is considered an act against the government and meant to incite violence.”

Please note that the two offensive acts (1) (clicking like) and (2) (royal dog) were only uncovered after the arrest, the raid of his home, the seizure of his computer and mobile phone to check out his personal information. This is according to the military intelligence as espoused by Maj Gen Wijarn Jodtaeng, the legal chief of the National Council for Peace and Order (NCPO). In an interview on the morning of 9 December, Gen. Prawit Wongsuwan, Deputy Prime Minister and Minister of Defense, only mentioned about (3) (the diagram of corruption scam). On the same day, Pol Gen Sriwara Ransibrah-manakul, Deputy National Police Chief, told the press that the matter was under investigation by the military and he only mentioned about the act which could be construed as a violation of the Computer–related Crime Act. The police officer did not mention at all about the offences against Articles 112 and 116.

After the arrest was made, Pol Maj Gen Chayaphon Chatchaidej, Commander of the Counter Crime Planning Division, the Office of Police Strategy, as part of the team working on lèse majesté cases stated that “According to the law, anyone clicks like or posts a comment in a facebook page deemed illegal can be held culpable as well”. He declared his plan to take legal action against webmasters and members of the facebook page in which Mr. Thanakorn had shared the posts and to compile all the names of the members who have clicked like or shared messages or images deemed “improper”. And it turned out that throughout the past two weeks, more internet users have been subject to the arrest.

3. Suppression of an attempt to investigate by pressing “defamation” charges

Apart from the arrest of Mr. Thanakorn and other internet users in the past two weeks, the government, the army and other government agencies have attempted to use “defamation” charges in various forms including “individual defamation”, “lèse majesté”, “sedition” according to the Penal Code or “bringing into computer system false data” as per the Computer-related Crime Act to suppress any attempt to carry out legitimate act of investigation. The authorities have refused to explain or demonstrated with evidence as to how the data is deemed false and have even made attempts to deviate public attention to other issues. They even claim that those supporting the corruption probe have done so with hidden political agendas or because they have been supported by some movements.

For example in August 2014, the 41st Ranger Regiment of Yala has pressed charge against Ms. Pornpen Khongkachonkiet, Director of the Cross-Cultural Foundation (CrCF) in a libel suit. It stemmed from an open letter issued by CrCR urging an investigation into the alleged physical abuse against a person being deprived of liberty. Ms. Pornpen was accused of “damaging the reputation of the 41st Ranger Regiment of Yala”. The Yala public prosecutor decided to not indict the case later.

Of late, Pol Maj Gen Paween Ponsirin, former Deputy Commander of the Southern Border Provinces Police Operation Center (SBPPOC) and former leader of the investigation team to crack down on the trafficking ring against the Rohingya has revealed to the press how interventions have been made by those individuals in the trafficking syndicates. He has been subject to intimidation from influential people as a result of his performing his duties. Meanwhile, Pol Gen Chakthip Chaijinda, the National Police Chief told the press that he was consulting with his Deputy Police Chief, Pol Gen Sriwara Ransibrah-manakul, about the possibility to sue Pol Maj Gen Paween for defamation.

In another landmark case, the Royal Thai Navi sued Mr. Alan Morison and Ms. Chutima Sidasathian, two journalists from Phuketwan Online for libel and the violation of the Computer-related Crime Act as a result of their reporting on human trafficking ring. After two years of the legal wrangle, the Phuket Provincial Court dismissed the case. Despite that, Phuketwan decided it is time to shut down its operation on 31 December this year due to the unfavorable climate for the comprehensive and straightforward reporting, a lack of awareness among certain groups in society and constant threats they have been receiving. The case glaringly reflects a lack of independence of media, the climate of fear and the deprivation of the right to freedom of expression among people.

4. Thai Netizen Network’s Opinions

Toward the acts and opinions of the state officials vis-à-vis the problem regarding the rights and freedoms of people and the overarching interpretation of the law, Thai Netizen Network has the following opinions to offer;

4.1 Clicking like is neither an act of propagation nor abetting

Thai Netizen Network reiterates our standing as per the statement “Click Like is not a Crime” issued since 30 November 2011 and have the following to add;

Even though the dissemination of information deemed to “incite the unrest” as per Article 116 and deemed “lèse majesté” as per Article 112 of the Penal Code has been decided as a punishable act by the Court, but the expression of feeling toward the information cannot be held culpable under any legal provision. Also, it cannot be construed as abetting since the act of abetting must occur prior to or during the commission of the offensive act. And the abettor must have done something deemed aiding or abetting the commission of the offence, but clicking like cannot be taken as part of such abetting.

In addition, clicking like is not an act of sharing even though a chance is the algorithm of the social media may automatically share the content being liked. But such an act lacks the intent to share and the person who clicks like has no power over the algorithm of the software and is not the position to suppress its sharing. Moreover, the person who clicks like has no power over the content they click, and such content is subject to alteration by its creator anytime. Therefore, the post at a time may differ from the post at the time it was clicked like by a user.

4.2 Sharing is part of the exchange of information among citizens which might have eventually shed light on truths

The power of internet as a public sphere rests on the fact that it is the space for both facts and opinions. The opinions, the proposals, the questioning, the observations, the estimations, the predictions, the estimated figures, the comparisons and analogies, or the hypothesizing, all have its power to bring us closer to the most probable and uncovered truths.

The sharing of information which might not have been proven 100% sire, albeit contains risks including the creation of misunderstanding, is still useful as a Launchpad for exchange in order to explore collectively and identify which parts of the information are the probable truths and which are not likely or unverifiable. It is a part of the collective process to explore the truths of a society.

In addition, in terms of the culpability, it is important that the intent of the sharers has to be proved, i.e., if the persons have shared the information despite knowing full well that the information was unfounded. There are legal cases which can be taken as precedence including the case filed by Mr. Piyasvasti Amranand against Ms. Rosana Tositrakul invoking Article 14 of the Computer Crime Act. The case was dismissed by the Court in March 2015 given that “the statements…have been expressed as a result of what the accused perceived and understood, or any expression made in order to present such ‘facts’…..Since the accused held such opinions and beliefs, she shall express them literally as such and the presentation of the information has been done so authentically to the source of the information. Therefore, it is impossible to hold the accused accountable for attempting to share false information.”

Of course, it is important that every internet users must be cautious in verifying the information before sharing it. But to hold every sharer criminally accountable for anything which is not factual shall take an immense toll on this invaluable public sphere.

4.3 Article 14 of the Computer-related Crime Act is not meant for “defamation”

In the past eight years, it has been provided for by Article 14 of the Computer-related Crime Act (CCA) that “the bringing into a computer system of fabricated 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” is a culpable act and has been used as the ground to launch numerous libel cases. In fact, the Article has been written to fill the gaps concerning the fabrication of documents, an offence as per the Penal Code, which then did not cover electronic documents.

“Fabricated computer data” and “false computer data” in the Article, according to the intent of the drafters, therefore refers to data such as spam mail or hoaxes. Nevertheless, until now in most cases, the authorities have simply interpreted the provision to also cover a libelous act. As a result, Article 14 (1) has been misused to hold a person culpable for the content while a major fallacy of the provision is it does not exempt the criticisms made in good faith or for public interest, the conditions of which can be cited for an exemption in a criminal libel suit.

The case the Royal Thai Navy filed against Phuketwan Online for libel and violation of the CCA therefore, marked the first trial in which the Court made the interpretation strictly according to the intent of the law. In its verdict, the Court held that “it is not the intent of the CCA to hold a person liable for a libelous act, since such an offence is already recognized in Article 328 of the Penal Code.”

Thai Netizen Network therefore urges a stoppage of the use of Article 14 of the CCA for any criminal defamation to suppress the right to freedom of expression in all cases.

4.4 In the abnormal climate whereby formal opposition does not exist, it is even more important to encourage public scrutiny

Under the abnormal ruling like present, whereby no opposition exists to hold the government accountable, what can substitute this lack is therefore the scrutiny led by the people, mass media and civil society organizations.

In such climate, it is therefore pivotally important that the space must remain freely open to ensure the widespread sharing of information. The defamation charge in whatever form it holds shall not be used to suppress any scrutiny or to avoid answering the inquiries put forth by the public.

Internet is a space in which all learn to live together. Amongst the state, service providers and netizens, it is important that an effort be collectively made to protect their space for public interest and based on the upholding civil rights and the protection of human rights.