Thai Netizen Network calls for changes to the Computer Crime Act

2 11 2010

On 1 November 2010, the Thai Netizen Network posted a statement (dated 17 October 2010) containing a comprehensive analysis of the 2007 Computer Crime Act and concrete calls for changes to be made to it. The statement opens by noting that even before the Act was made law, they “saw that the enforcement of this law would result in depriving people’s right to freedom of expression, which is fundamental for democracy.” Three years later, it is clear that they were more than correct.

In particular, the Network identifies Sections 14 and 15 of the Act as problematic. The sections read:

Section 14. If any person commits any offence 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 to 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 that third party or the public;

(2) that involves import to a computer system of false computer data in a manner that is likely to damage the country’s security or cause a public panic;

(3) that involves import to 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);

Section 15. Any 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.

Addressing the charges brought against Chiranuch Premchaiporn, webmaster of Prachatai online newspaper, who has been accused in two sets of charges of not removing webboard comments with alleged lese majeste content quickly enough, the Thai Netizen Network argues that:

“In the first case, the police charged Chiranuch for an offence according to Article 15 of the Computer-Related Crime Act: intentionally support or consent to an offence under Article 14, allegedly committed by an Internet user. The offence in this case is the posting on Prachatai webboard a piece of text that the authority deemed to be defaming, insulting, or threatening the King, the Queen, the Heir-apparent, or the Regent.

Nevertheless, that webboard post was removed for several months before the arrest. It was removed right after Chiranuch received a summons from the Crime Suppression Division asking for information of the post author. This shows her intention not to support any content of that post. Moreover, the period of 20 days, for which the topic was present, that the police claimed as proof of “intentional support,” does not appear in any part of the law. It was just a number cited in the arrest report.”

Intention is a slippery legal category. How precisely is evidence provided to definitely indicate a given actor’s intention? This was problematic in the case and conviction of Darunee Charnchoengsilpakul last year, as one analysis on the New Mandala website of the  summary judgment statement in her case indicated.

The Thai Netizen Network then methodically lists the flaws with the law which Chiranuch’s case clearly indicate. They call for what PPT views as necessary changes in the law as follows:

  1. The law must consider and deal with “intermediary” as an information tube, a cache, or a buffer. It must also understand the nature of the internet in which information flows rapidly that any filtering or controlling measure is hardly made possible yet worth the effort. It will just cause more harm than good.
  2. The law must assume an intermediary to be innocent by default until it is proven to intentionally assist in the offence, after which a court process can start.
  3. Unless and until the court has sentenced that a controversial content actually violated the law and/or the suspect was guilty, the law cannot be applied to an intermediary.
  4. If an intermediary is sentenced guilty, the penalty must vary on reasonable degrees of involvement.
  5. There must be an extension of the law to define notice-and-take-down procedures and ensure a safe harbour for intermediaries. For example, a webmaster can be held as suspect only if they received a takedown notice from the authorities and refuse to comply within the time period specified in notice-and-takedown procedures.

The entire statement is worth a careful read and can be done so by going to the Thai Netizen Network website, or it can be downloaded in .PDF, .TXT, and .ODT file formats here.

PPT finds the Thai Netizen Network’s analysis smart and important. We go slightly further than calling for amendment to the Act — and call for its immediate repeal and the immediate dropping of the charges against Chiranuch Premchaiporn and and immediate halt to investigations of others accused of allegedly violating the Act.