Ever since the 2014 coup d'état by the NCPO, there have been relentless efforts to silence critics. Human rights defenders, activists, journalists, opposition politicians, and online users have faced ‘lawfare’ where the government brought criminal charges against them to stop criticism.
From left: Yingcheep Atchanont, Sarinee Achavanuntakul, and Winyu Wongsurawat
Despite a return to democracy in the form of the general election in 2019, limitations on freedom of expression for the Thai people is still strong, and when the COVID-19 pandemic arose, the Thai government announced an Emergency Decree that gives their officials the authority to censor ‘false’ or any other information that might incite panic in the general population, while also emphasizing that they will file charges against ‘misuse of social media’, a threat that many are concerned will instead be used against the government’s critics.
Amnesty International, therefore, has issued a new report “They are always watching”: Restricting freedom of expression online in Thailand. This report shows the restrictions on freedom of expression in Thailand, along with the concerns of organizations related to Thailand’s international obligations on this topic. A live talk show on Facebook, in collaboration with the programme The Topics, featured Sarinee Achavanuntakul, writer, translator, researcher, and freelance academic on finance, and Yingcheep Atchanont, manager of Internet Law Reform Dialogue (iLaw), and was moderated by Winyu Wongsurawat, The Topics show host.
Computer Crime Act, the right law used wrongly
The Amnesty International report shows that the tendency to greater restrictions on freedom of expression online is continuing.
Sarinee Achavanuntakul stated that Thailand had a score of 35 out of 100 in the 2019 Freedom House report , which is unfortunate, considering that in the past, Thailand was praised for the freedom of its media, the clear progress in the people’s sector, the media reform movement, and the efforts to develop freedom.
Sarinee has monitored restrictions on the right to freedom of expression since the Computer Crime Act was enacted in 2007 to combat computer crimes such as hacking, phishing, and financial scams. Instead, the law was increasingly used to control online messages.
Since then the Computer Crime Act was misused. Statistics for the first 5 years show that the Act was used against non-computer crimes, such as defamation.
“The act was then amended so it couldn’t be used for defamation. But on the former offence of information that is false, distorted or provoking or inciting damage to the public, the law opens the opportunity for interpretation, such as in the case where Prof Charnvit Kasetsiri posted a criticism of the PM’s wife’s handbag. If the law makes expressing an opinion into a crime, it makes people unsure of whether what they have said is wrong. This shows that the law has problems.
“In principle, the Computer Crime Act or the Personal Data Protection Act are necessary. The amended Computer Crime Act has improvements such as dealing with spam, bringing criminal charges against platforms as intermediaries, and where it wasn’t used together with the defamation laws, it makes the situation somewhat better. But it had many times more bad things because it creates ambiguity, and allows more interpretation, although there are people who argue that the law can be amended by clearly specifying that the information that is within the scope of this law is information that can be read by a computer, not information that a human can read.”
Yingcheep Atchanont points out that many people tend to ask him how to post things legally, and that shows how unsafe people feel online. Thailand has so many laws it confuses Thai people, and because the police cannot arrest everyone who criticizes the government, they cause fear by arresting famous people. Sometimes they even arrest the users who post vague messages so people become scared of making comments.
Government should not monopolize the ‘truth’
One of the global issues today is the spread of ‘fake news’, and the Thai government seems to take this issue seriously.
Yingcheep, however, states that ‘fake news’ has been used not only to describe websites that intend to spread false information; expressions of disagreement, or incorrect interpretations, and bias have been labelled fake news.
“If we want someone to check fake news, I think the facts should be divided according to each agency’s specialization, such as having the FDA check information on medicines, because creating one central agency to say if any fact is true, no one agency could know everything," Yingcheep said.
Sarinee believes that it is the nature of online discussion that no one can know every truth and lie, so online users have to use the internet responsibly. If they know what is wrong, they have to make it right. It is the nature of the internet to fact check itself. Everyone has their own media in their hands, so if someone knows what is wrong, they can go online to dispute it.
“The best way to correct fake news is to fight with the facts, and there are already people with this responsibility, i.e. the media. But how can the professional media at this time do a better job? Some news we believe to be true until later new facts emerge. This is the nature of information and opinion. What is bad is to bring in the law to make it a criminal charge.
“What the Amnesty report has shown us is that once an Anti Fake News Centre is established, online freedom tends to go down. People get arrested, the interpretation of the law get broader, and the things that the authorities say is fake news or not have problems,” Sarinee said.
Sarinee recommends that the government should cancel the Anti Fake News Centre and use their budget for various news agencies that regularly check their facts, or fund media organizations, as they, along with the public sector, have much more credit than the government when it comes to fact checking.
Yingcheep sees the Anti Fake News Centre as another effort by the government to control Thai citizens.
“New tools of the state sector will always be produced. Like when the Anti Fake News Centre is criticized to the point it loses all credibility, there will be a new tool in its place. Now we are under their new tool: the Emergency Decree. While they have not arrested anyone yet, as long as it is still in effect, this will be one of the tools that the state could choose to use, and the insecurity around the people’s rights and freedoms will increase.
“The state shouldn’t be the only one to indicate what is right or wrong. Everyone who uses the internet must try to upgrade themselves. Don’t firmly believe something too much, or if you find any opinions don’t share them right away. We must help to protect ourselves from lawsuits, and give our social media friends a world that has quality," Yingcheep said.
Emergency Decree concerns: power to control freedom of expression
In regards to concerns over the use of the Emergency Decree to control the Covid-19 pandemic but which is being extended to control citizen’s opinions, Yingcheep explains that these laws give the authority to limit media coverage by banning the publication of information that could cause confusion or worsen the situation, which is what everyone is worried about. While there have been no arrests, it is also not known whether the government has used it to threaten anyone yet. If the government is truly honest about using the Emergency Decree to control the disease than there is no need to use this law.
What Sarinee worries about is that under the Emergency Decree, citizens cannot file a complaint or lawsuit against officials. The government’s interpretation of fake news is also concerning. The more government restricts expression, the more fear people have for speaking their minds, making them practice self-censorship.
“The fact that people express opinions critical of the government is making the government accountable. Many times it helps the government improve and perform better. Gagging people affects not only the people, but has an effect on the government too, when there are no opinions to help improve its work,” Sarinee states.
Assisting those who have been violated by the law is not a crime
One of the issues that is repeatedly raised whenever Amnesty or anyone else comes out and asks for justice for the accused, is that we are ‘helping the criminal’.
Sarinee believes that this issue comes from the mindset that every law is sacred. Every NCPO order is considered a law without question, and anyone who breaks what the government considers to be the law is a criminal. So when someone comes out asking for justice for the accused, they are considered to be assisting criminals. In the report it is clear that Amnesty only asks the Thai government to follow the international obligations on human rights that Thailand has committed to. Amnesty only checks whether or not Thai law enforcement is in accordance with the agreements Thailand has made with other nations.
“Human rights are the basic rights that have become a global morality. Even the private sector is called on to help protect human rights. Also, it is not the case that human rights do not allow cultural differences in each country. The UN declaration on the limits of human rights does not say that freedoms are limitless. A state can limit rights but must have conditions. For example, limits must be by laws that are necessary and proportionate, there must be fairness, and it must be clearly shown how limiting rights helps protect against danger. But the use of the Computer Crime Act or Article 116 doesn’t meet these conditions,” Sarinee said.
Yingcheep also explains that based on his working experience, there is no one is this world who does not want to protect the rights of the innocent against criminals, but we don’t know when crime will happen. What we know is that as soon as we read a law we know it will be used politically. We see the possibility of the innocent being arrested for exercising their freedom of expression. How can they stand still against it? This is the protection of the innocent against government abuse, so they have to resist the law.
For society to move on, freedom of expression must be confirmed
Protecting freedom of expression is not just for the benefit of the individual, but also to protect the benefit of society as a whole, by not leaving anyone behind.
Yingcheep believes that freedom of expression will ensure our chance for the best or almost the best thing we can have, and if we are wrong, we can state our opinion to fix it.
“When we see something unusual in society, we can alert others to it. When we see that the government has made a wrong decision, someone can tell them that they should fix it. If people listen to opinions, we might be able to change for the better. It is only freedom of expression that can ensure that everyone can speak to gather the ideas to find the best thing and accept each other more,” Yingcheep said.
Meanwhile, Sarinee sees that freedom of expression is important for economic development.
“Today we say that the economy has to be digital, but if we don’t let people express themselves, innovation will be difficult. Innovation cannot come from people having the same idea, but it comes from building on each other. The more conceptually open it is, the more freedom people have, the more it facilitates economic development.
“It’s human nature to think differently, so how will we develop the economy thoroughly? Especially in the COVID-19 situation, we will see that countries with great inequality will become exhausted because a lot of people will be left behind. How can you tell people who are already struggling to work from home? This shows the necessity of having social welfare and reducing inequality. Economically, if we don’t emphasize developing the broad base that reaches everyone, it will be even riskier. If we depend so much on tourism, how can we develop this base if we don’t protect freedom of expression, so that people can come out and tell us what they want to do?” Sarinee concludes.