It has been nine years since the Computer Crime Act (CCA) was promulgated in the wake of the 2006 coup to control the netizens in Thailand. Many websites have been blocked, often permanently without due process or remedy; and many internet users have unjustifiably faced criminal prosecution for expressing their opinion online. Now, the National Legislative Assembly (NLA) appointed by the 2014 coup-makers is considering amendments to the law as one of its primary agenda.
Although done with the intention to effectively address genuine computer crimes and mitigate abuses of the law, the proposed amendments broaden the definition of computer offenses, and contravene the freedom of speech in internet communication and digital economy. As it is, the latest draft will also expand the scope of online censorship.
During the 23 November NLA public hearing on the CCA amendments, civil society organizations including Thai Netizen Network, iLaw, and Southeast Asian Press Alliance held a parallel public forum on the draft proposals.
False information: An excuse for online threat
Draft Section 14 of the CCA (November 2016)
Any person who commits the following offenses shall be subject to imprisonment up to five years and a fine not exceeding one hundred thousand baht, or both:
(1) with ill or fraudulent intent, put into a computer system forged computer data, partially or entirely, or false computer data, in a manner that is likely to cause damage to the public;
(2) put into a computer system false computer data in a manner that is likely to damage the maintenance of national security, public security, national economic security, public service, or public infrastructure serving public interest or cause panic in the public;
(3) put into a computer system any computer data which is an offense about the security of the Kingdom or is an offense about terrorism, according to Criminal Code.
Section 14 of the CCA is the most frequently violated in the online community, often settling conflicts through lawsuits and creating a climate of fear.
“If today I say, ‘All Bangkokians are ungrateful’ I can probably be sued under Section 14 because it is false information and it causes damage to the public,” said Associate Professor Kanathip Thongrawewong, Dean of the Faculty of Law at Saint John’s University. A panelist at the civil society forum, he pointed out the weak point in the terminology used in Section 14.
Information and technology law expert Paiboon Amornpinyokiat, who spoke at the NLA hearing, emphasized that the term “false information” were meant to refer to fraudulent acts such as computer phishing or identity theft. But the vagueness of Section 14 has led to its use in a number of defamation cases and has been wrongfully interpreted to support accusations.
At the NLA panel, ISRA Institute director Prasong Lertratanawisute said that he was also a victim of Section 14. His case has been ongoing for four to five years. He views the CCA as a law that allows authorities to intimidate dissidents. For example, a Facebook user posting about bribery in the Royal Thai Police, which was a widely discussed issue, was threatened with a lawsuit citing Section 14.
The broad interpretation of Section 14 becomes problematic in abusing it to prosecute online defamation, but also to facilitate further censorship of criticism. Human Rights Watch’s Sunai Phasuk said that there have been many cases where the government filed lawsuits against human rights activists. An example is the case against Pornpen Khongkachonkiet, Anchana Heemmina, and Somchai Homlaor for co-editing the report Torture and Ill Treatment in the Deep South Documented in 2014-2015 that recorded 54 cases of inhumane treatment of persons in detention. There is also the case against Narisarawan Kaewnopparat , a niece of an army conscript who was killed during military training. She was accused for posting on Facebook details related to her uncle’s death.
Sunai said that it is important to prevent the state from using this section to take revenge against human rights defenders.
Despite evidence pointing to its misuse, the amendment does not address these weaknesses of Section 14 to prevent its wrongful use and to improve enforcement against phishing or identity theft.
Section 14 adds new dimensions to the impact of “false computer data” and “false content” to include legitimate criticism and dissent by expanding the scope to include “the maintenance of national security, public security, national economic security, public service, or public infrastructure serving pubic interest or cause panic in the public.”
Kanathip took particular issue with the inclusion of “public services” in the scope of section 14(2).
“But I have never seen any case study from other countries how posting forged or false content can affect public services. So this will lead to a problem in the interpretation of criticism of public services,” he said.
“Let’s say I posted online that I have been to a restaurant and say that the service is terrible. Some might say that this is false information. I will argue that I am just expressing what I think. At this point, how can we prove truth and intention?” asked Sarinee Achavanuntakul, a writer and a representative of the Thai Netizen Network.
“It depends on what kind of online society we expect to see. If we want a society where people feel welcome to share ideas and discretion at the same time, we have to support self-regulation in society. Now we have already seen from many Facebook pages where there is wrong information, netizens will argue. An open debate environment will develop society,” said Sarinee.
Notice and take down: A new self-censorship mechanism
The draft CCA states that the Ministry of Digital Economy and Society (MDES) will issue ministerial announcements, such as the “Notice and Take Down” procedure and on blocking websites.
The draft ministerial announcement on the “Notice and Take Down” procedure says that internet service providers (ISPs) have the duty to provide a platform for people to be able to report inappropriate content. Then ISPs have to suspend or take down such content within three days, or the intermediary will face a criminal penalty at the same level as the person who posted the content.
Previously, there was no legal standard procedure for an ISP to manage inappropriate content. This is the first time the law has introduced a “Notice and Take Down” measure. In theory, a “Notice and Take Down” procedure would help an intermediary because if it follows the notice, it will be free from prosecution.
Thitirat Thipsamritkul, a lecturer of the Faculty of Law at the Thammasat University, expressed concern that in the “Notice and Take Down” procedure, the content owner must have the right to object. But this ministerial announcement does not include any protocol to review requests for takedown. Moreover, it requires the intermediary to take down the content within three days. If it is found later that the content is appropriate, there is no compensation measure.
Kanathip said that this ministerial announcement would lead to a new norm of self-censorship where service providers would fear prosecution, and so would take down content immediately.
One-stop website blocking center
Draft Section 20/1 states that the MDES will set up a Computer Data Screening Committee. The committee consists of five members, two of whom shall come from the private sector.
This committee has the power to remove content, which is not an offense against any law but is deemed to violate public order or the morals of the people.
In the draft ministerial announcement on blocking websites, the MDES will provide a central computer system for government officers to suspend or take down online content. The system may be connected to ISP systems. Once connected the government can directly control the blocking of websites and can by-pass the ISPs.
“I have a simple question, what are the people’s morals? Each person has different morals, seeing each issue differently. Morals are a private matter which cannot be forced onto everyone,” said Jompon Pitaksantayothin, a lecturer from the Faculty of Social Science and Humanities at the Mahidol University.
He gave the example of a person searching for information regarding safe sex or abortion on the internet. If the Computer Data Screening Committee considers these issues as immoral then all information can be censored. Rather than allowing internet users access to well-rounded information, judgmental morality might block access to information. From his view, blocking cannot elevate people’s morality. A better way is to open the debate to look into controversial problems, and find constructive solutions.
Forcing all internet users to ‘delete (inappropriate content) if you know’
Draft Section 16/2 states that any person, who is aware that electronic data in one’s possession is data ordered for seizure and destruction under Section 14 and Section 16/1, is obliged to destroy such data.
“This will affect correspondents, researchers, and others collecting data. If those persons keep the data, but have not published it, and one day the court decides that it is illegal and they need to destroy it, does it mean we are going to delete the history?” asked Arthit Suriyawongkul from the Thai Netizen Network.
Thitirat said that while the state expects internet users to destroy data, it is not practical because the nature of the internet is different from the offline world and the state cannot control everything. She added that if the law cannot be enforced, it will affect its credibility.
The NLA committee plans to finish the amendment process within this year with a final version of the amended bill to be adopted and promulgated by April 2017. This will be followed by the drafting of several ministerial announcements under the MDES; its process will make it harder for people to participate or monitor, though the regulations will directly affect their everyday life.
If the draft is adopted in its present form, it will further restrict online freedom of expression and have an adverse impact to the nature of internet communication. The draft amendments institutionalize an unchecked and unbalanced online system, which undermines the digital economy and favors state censorship over self-regulation.