The long arm of lese majeste zealotry

21 03 2012

PPT was looking through the technology articles in the Bangkok Post, and came across one that assesses the liability of employers under the laws on lese majeste and computer crimes. An earlier companion piece was published recently.

The earlier article looked at the use of social media tools by businesses and the associated risk of computer-based crimes under Thailand’s draconian legislation.

According to the most recent article, the Civil and Commercial Code “makes employers jointly liable for the consequences of a wrongful act committed by employees in the course of employment.” According to the authors – both with law firms, this “would extend to defamation and lese majeste committed in the course of employment.”

If a person posts a comment deemed illegal or defamatory on a website, and

the person posting the comment was employed by a large company and published the defamatory post during office hours using computer systems owned and operated by the company, then the company would become an attractive litigation target.

This would especially be the case “if the employee’s comments were made on a blog or website operated by the employer.”

The Computer Crimes Act

also contains a section that has the potential to expose many employers to criminal liability for breaches of the CCA by employees.

The Act imposes penalties of up to 5 years’ jail and a fine of up to 100,000 baht for posting or forwarding computer data that are deemed illegal, including information considered “false and likely to cause damage to national security or stir up public agitation.”

As is widely known, the “CCA also imposes the same penalties on a service provider who intentionally supports or gives consent to the commission of the above acts on a computer system under the service provider’s control.” The lawyers argue that this provision is based on a very broad definition of the term “service providers.” They say it:

applies to anyone who provides others with internet access or any other services that enable communication via a computer system regardless of whether the service is provided on that person’s behalf or for the benefit of others.

As more companies use their own servers and operate their own intranet systems,

it is conceivable an employer that provides employees with internet access or devices such as BlackBerries or smartphones could come within the definition of a service provider under the CCA. Companies that provide WiFi access to customers or to the public could also be caught, as could an iPhone user allowing others to connect to the internet via a personal hotspot.

They add that, like webmasters, “if an employer becomes aware of content on the company’s computer system that contravenes the CCA, then the firm could be compelled to remove the content or face proceedings under the CCC.”

We know from the case against Chiranuch Premchaiporn that this provision is interpreted quite broadly by the authorities.

The highest risk for employers are said to be with social media. However, they add that:

emails and SMSs and other instant messages are also capable of creating liability for employers if the messages are transmitted using the employer’s computer system.

And, as we also know from Joe Gordon‘s case and that of Anthony Chai, the long arm of the lese majesty enforcers extends beyond Thailand’s shores. So too for the CCA:

The CCA also has extraterritorial applications and is not limited to offences taking place in Thailand. Proceedings can be started against Thai nationals who commit a breach of the CCA while abroad and against foreign nationals who commit a breach of the CCA abroad if the injured party is a Thai national or the Thai government. The CCA has already been enforced against a US national in relation to matters that occurred entirely outside Thailand.

That is pretty scary stuff, to think that the Thai monarchy needs protection in every corner of the globe.

Employers are to be used, like webmasters, to police the law.





Bangkok Post on Anthony Chai case

10 09 2011

The Bangkok Post has a longish report on Anthony Chai’s lese majeste case that has led to a court case in California against a web-hosting firm that released Chai’s details to the Thai authorities. There’s not a lot that is new in the Post report, especially as the story has now been covered in several dozen stories across the globe. So there’s no need to summarize the story in the Post and readers can get the whole document that is the basis for most of these stories from PPT’s earlier post.

There are a couple of oddities in the Post story that deserve attention. The first is the use of a question mark in the headline: “A question of freedom of speech?” The question mark seems to refer to parts of the story that are, in our view, garbled by innuendo. There is a statement that seems to suggest that if Chai was really wanting to protect his family, he wouldn’t file this case. There’s other innuendo, seemingly disparaging of Chai, his motivations and his claims. The author says this of the site Chai is alleged to have used:

The Manusaya website was an openly contemptuous and taunting forum and propaganda site run for a brief time from Sweden, with Netfirms supplying the server. Blocked to Thai internet users from its inception, the site was helmed by a former southern separatist, and most of its content was anti-government and anti-monarchy.

The implication is that perhaps the site deserved to be closed and censored.

Even more interesting is the miraculous disappearance of “Palace Representative Joe Kashemsant” from the Post story. There it is claimed that:

Two months later [2-3 November 2006], Pol Col Yanaphon and two more DSI agents arrived in Los Angeles to interrogate Mr Chai. He says he met them twice at a hotel in Hollywood _ with witnesses.

This is a fabrication. In the court documents, Chai claims he was interviewed by Department of Special Investigation officer Yanaphon Yongyuen, a public prosecutor and the palace man. The Post is probably diplaying its usual weak-kneed and/or groveling attitude to any item of truth and news that may reflect even slightly negatively on someone associated with the palace.

Joe Kashemsant listed in a Wikileaks cable as being in the Office of the Principal Private Secretary. He’s still there now. No lese majeste in mentioning his role in a report that is meant to be investigative. But, no, the Post runs for cover.





Wikileaks: U.S. Ambassador Boyce offers lese majeste advice

3 09 2011

The latest release of cables from Wikileaks has a remarkable piece of “advice” from then U.S. Ambassador Ralph Boyce on how to deal with lese majeste charges against a U.S. citizen, based on a Swiss experience. The “Swiss experience” relates to the case of Oliver Jufer and embassies in Bangkok, Amnesty International and those who speak for them on blogs, tend to argue that quiet diplomacy and “working quietly behind the scenes”  carries the day when dealing with lese majeste.

Jufer (From The Telegraph)

For a refresher on Jufer’s case back in 2006-07, see these links: BBC1 (an excellent account by Jonathan Head), BBC2, Save a Life, and see the set of links at New Mandala. Jufer was arrested by 7 December 2006 (Below, Boyce says 5 December).

In Head’s report, there is this: “We had heard he was indignant when first arrested. He had planned to plead not guilty. But he has clearly been advised since, perhaps by his lawyer, or the Swiss Embassy, to change his tune.” He had already spent 3 months in prison awaiting trial. Several of the reports note the politicization of lese majeste by the military junta that came to power through the royalist coup of 2006. This is one example:

After Jufer was arrested, Gen Saprang Kanlayanamitr, deputy secretary-general of the Council for National Security, as the junta styles itself, said: “The suspect must have been hired by someone so I have ordered soldiers to investigate the incident and bring the mastermind of this crime to justice.” Nonetheless, Thai media have barely covered the case after police urged local journalists not to report it.

That statement by Saprang is reflective of the idiocy surrounding Thaksin Shinawatra and lese majeste following the coup, with Saprang suggesting that Jufer was put up to the act by the regime’s political opponents.

Jufer was sentenced to 20 years, reduced to 10 year because he was persuaded to change his plea to guilty. That guilty plea meant that no evidence was heard in the court.

Boyce

U.S. Ambassador Boyce, who has shown himself pro-coup and pro-junta in other cables, offers advice to the State Department. His cable begins with a reference to the “recent arrest and subsequent pardon of a Swiss national accused of offending Thailand’s revered King Bhumipol Adulyadej…”. It is as if this is all that matters. Jufer was arrested somewhere around 6 December 2006 and wasn’t pardoned and deported until 12 April 2007, meaning that he spent more than 4 months in prison for a drunken defacing of a few of the thousands of monarchy propaganda posters that are required around the time of the king’s birthday and that often stay up all year these days.

Boyce goes into the usual royalist spin about the monarch being revered and wielding “great moral authority” as if Boyce hadn’t been following the events of the past years and sending cables supportive of the palace’s politics during that time.

He then claims that this case “provided a rare window into the reaction of the palace to incidents of lese majeste” and adds that:

Swiss officials in Thailand believe their restrained response to the arrest, in spite of their public’s demand for strong action, contributed to the sooner-than-expected release of their citizen.

Boyce states that Jufer was:

sentenced to ten years imprisonment [PPT: in fact, it was 20 years, reduced for pleading guilty] after being convicted on lese majeste charges.” He “spraying black paint over five outdoor posters of King Bhumipol Adulyadej on December 5, 2006 (the King’s birthday) in the northern city of Chiang Mai. Jufer admitted to being drunk at the time and was reportedly angry that new laws limiting the times when alcohol can be sold prevented him from buying beer.

Boyce then makes some outlandish claims:

Sentences for lese majeste are typically hortatory in nature and offenders are normally pardoned by the king. Nevertheless, as evidenced by the recent ban of the popular web site YouTube (see reftel), the overwhelming popularity of the Thai sovereign compels the authorities to act should someone publicly slight the King or his family.

All that he state here is nonsense and it is clear that Boyce is making a series of royalist claims that are close to his heart. First, it is the law that is “hortatory,” not the sentences. Indeed, as several of the newspaper accounts cited above make very clear, there was precious little media coverage in Thailand and attempts to limit international coverage. It is the law itself that demands self-censorship and the repression of views that are not the same as those of royalists.  Second, the claim that the king is so widely adored that any “slight” against the king demands that the government acts puts him in la-la land. Boyce diverts attention from what PPT calls lese majeste repression and ignores long suppressed anti-monarchy sentiments that were widespread following the coup.

According to Swiss Embassy Minister Jacques Lauer, who helped coordinate the Swiss response to Jufer’s arrest, the Swiss government was surprised by how rapidly the King pardoned Jufer — a mere 13 days following his conviction and before Jufer had even filed an appeal or requested a royal pardon. Lauer indicated they had expected the King would follow tradition and wait until his 80th birthday, eight months later, to pardon Jufer and others accused of lese majeste. Lauer noted that Thai prison officials provided Swiss consular officials full access to Jufer.

PPT is unsure of the notion of “tradition” in sentencing and pardoning. A previous know case cited at Wikipedia says this:

Frenchman Lech Tomasz Kisielewicz allegedly committed lèse majesté in 1995 by making a derogatory remark about a Thai princess while on board a Thai Airways flight. Although in international airspace at the time, he was taken into custody upon landing in Bangkok and charged with offending the monarchy. He was detained for two weeks, released on bail, and acquitted after writing a letter of apology to the king, and deported.

It would seem that the “tradition” was not a tradition and depended on circumstances and whim. Kisielewicz was a relatively wealthy businessman with international connections and had refused to obey the instructions of an airline hostess who demanded he turn off his reading light that was said to have “inconvenienced” Princess Soamsawali, sitting in front of him. He was said to uttered derogatory remarks. In fact, Soamsawali is not covered by Article 112 but this case shows the illegality involved in the use of the law.

With no detail, background or previous experience cited, Boyce believes the Swiss got it right:

Minister Lauer credited Jufer’s speedy pardon to a Swiss decision to not antagonize Thai officials by making public comments, an action that may have provoked a backlash due to the public adoration of the King. Lauer claimed that intense international media attention and the public clamor in Switzerland for Jufer’s release made it difficult to balance the need to avoid offending their Thai interlocutors while appearing proactive in the eyes of the Swiss public. While historically relatively few foreigners have been accused of lese majeste, Lauer cautioned that should an AmCit be detained for lese majeste charges, any public criticism or appeals by USG officials would be tantamount to “throwing oil on the fire”.

There’s no evidence for this claim except the feeling espoused by an official who was criticized for his lack of action on the Jufer case. There is no contrary evidence because no embassy has been willing to take a public stand and criticize the Thai law and its use. Backbone has been lacking and still is. In addition, the U.S. relationship with Thailand is quite different from that between Switzerland and Thailand. Boyce concludes:

If an AmCit were to be charged with lese majeste, it is likely that a low key approach outside the public eye would stand the best chance of success in getting him or her out of custody and out of Thailand.

That seems to be the current line taken by the Embassy and State Department in dealing with the truly testing case of Joe Gordon, charged with offenses allegedly committed on U.S. soil.

Nicolaides

It might be noted that another embassy that seems to have followed the “don’t rock the boat” strategy is the Australian Embassy during the imprisonment of Australian citizen Harry Nicolaides. In this case, the Harry’s family complained about the Australian government’s approach and his lawyer became outspoken. As pointed out in our page on Nicolaides, while he mouthed appreciation for the efforts of governments, he seemed more concerned to thank the media and people in Australia for keeping the pressure on and support up. The Australian government appears to have believed that a guilty plea and conviction would result in a quick pardon and deportation. It took a month, meaning that Harry was in jail from 2 September 2008 to 20 February 2009. His return to Australia is chronicled here.

In his concluding comment, Boyce writes about the “King’s preexisting public statement that he will pardon anyone convicted of lese majeste…”. Of course, it is not as simple as Boyce’s propaganda-like statement makes out. If a guilty plea isn’t entered, getting a pardon seems not to be in the equation, unless it is a part of general sentence reductions and releases associated with the king’s birthday.

Boyce then really gets out on a thin limb by claiming that the “sooner-than-expected release of Jufer seem to indicate that the palace is uncomfortable with the strict application of lese majeste laws.” He adds that:

palace officials seem reluctant to let lese majeste be used as a tool to punish those who are accused of defaming the monarch. The palace appears quite sensitive to the possibility that lese majeste could be abused by non-palace actors to achieve their own ends.

They might be but these officials have since seemed all too eager to allow its political allies to use Article 112 for political purposes, most notably against red shirts. In fact, as the Anthony Chai case makes clear, palace officials are intimately involved in lese majeste cases.

The Wikileaks cables suggest that, by this point in his career as U.S. Ambassador, Boyce was doing little more than cheering for junta and monarchy. If his partisan advice now drives U.S. policy on lese majeste, then U.S. citizens can expect little support if they are caught up with  draconian lese majeste repression.





Mediashift looks at lese majeste

2 09 2011

PBS’s Mediashift has a detailed report by Simon Roughneen on lese majeste and recent cases in Thailand. This article looks at lese majeste with the California link to Anthony Chai’s case and U.S. citizen Joe Gordon’s prosecution. Many PPT readers will know the details of the story, that summarizes laws and events for U.S. readers.

David Streckfuss is cited as telling MediaShift that “Thai royalists argue that the Thai monarchy is unique and so deserves unique punishment. But critics claim the law is used arbitrarily as a weapon to silence critics, and undermines democracy in Thailand.” Streckfuss is one of those critics. The article observes:

Thailand’s lèse-majesté laws are likely the most stringent anywhere in the world, and despite King Bhumibol Adulyadej previously saying that he is not above criticism, Thailand’s politically fraught recent history includes a rise in lèse-majesté charges from a handful to hundreds each year.

The article also mentions the case of Chiranuch Premchaiporn which is back in court this week. Roughneen states that he was at the court, “listening to testimony from police officers involved in the investigation against Chiranuch…”, and he spoke with her after one session:

she said that the restarted proceedings seemed to be moving faster than during the previous court sitting held in February, and that she remains “hopeful for a positive outcome.” Some of that optimism may stem from the notably-assertive judge now overseeing the case, who said in court on Thursday that the accused “is not at fault.” However hearings are scheduled to run into October, as things stand, with the witnesses for the accused not due to take the stand until next month.





Anthony Chai’s case in the media

31 08 2011

While the various reports are not adding much to the story – they are based on the PDF of the filed case in PPT’s earlier post – it is interesting to see that the lese majeste-related case of Anthony Chai is beginning to gain some media attention:

ars technica, 29 August 2011: “Thai censorship critic strikes back at snitch Web host

Asia Sentinel, 30 August 2011: “Did Canadian Firm Snitch over Lese-Majeste Charges?

Asian Correspondent, 30 August 2011: “Foreign web host company ‘snitched’ lese majeste critic to Thai authorities





Updated: Anthony Chai’s case

29 08 2011

In an earlier post, PPT mentioned the case of Californian businessman Anthony Chai, who is suing a a Canadian web hosting company incorporated in the United States, for releasing personal information to the Thai government. These disclosures are alleged to have allowed Thai officials to “identify, detain, and interrogate the plaintiff, Mr. Anthony Chai, both in Thailand and on U.S. soil.”

This is a lese majeste case goes back to 2004, with Chai having been detained by the Department of Special Investigation in Thailand in 2006.

The complaint lodged with the Californian court is available here as a large PDF. Interestingly, that filed complaint includes details of interrogations that took place in Hollywood, at a hotel. It is stated in that document that also present was “Palace Representative Joe Kashemsant.”

A bit of searching shows Joe Kashemsant listed in a Wikileaks cable as being in the Office of the Principal Private Secretary (PPS). It states:

The Office of the PPS does not have clear lines of authority, with certain employees’ informal roles/influence  more significant, such as Mom Butrie’s, than their titles  might suggest. Another such informal player is the Queen’s  foreign liaison officer within the OPPS, M.L. Anuporn “Joe”  Kashemsant, son of the King’s now deceased cardiologist and the former National Counter Corruption Commissioner,  Thanphuying Preeya, who indicted Thaksin on a false assets  declaration in 2000 and is a regular at the Queen’s dinner  table. Once the number of the Queen’s foreign visitors  slowed dramatically in recent years, Anuporn started  freelancing more in political intrigues.

He is also mentioned in this April 2001 letter from the Christian Legacy Institute’s Leon Sexton as “my friend ‘Joe’ Kashemsant who works for the king.” We only cite this as it links to an earlier post at PPT about the connection between royals and right-wing Christians in the U.S. associated with Herbert W. Armstrong. There’s more on this odd group and Thailand here.

Anthony Chai has been added to PPT’s list of Pending Cases.

Update: ars technica has an account of this case worth reading.





With 3 short updates: Monarchy, Prem, lese majeste

26 08 2011

There are a series of reports that relate to lese majeste and monarchy in the media. PPT links to them here.

Prem Tinsulanonda

The first story is a short one in The Nation that states:

Police took some ten red-shirt people into custody before freeing them after they rallied in front the Si Sao Theves residence of Privy Council President Gen Prem Tinsulanonda. The people were not dressed in red shirts but they admitted to police at that they were red-shirt people. Patrol policemen took the people to the Samsen police station for questioning and taking their photos for records. They were freed without being charged.

It is unclear to PPT exactly what the story implies. It is Prem’s birthday on 26 August and there was an earlier report that Prime Minister Yingluck Shinawatra wished to “pay her respects” to Prem. Perhaps these multi-color (?) red shirts were seeking to protest that visit?

The second story concerns Anthony Chai, a U.S. citizen charged under Thai law. PPT had an earlier post in 2010 about this case. The World Organization for Human Rights USA has an update. It seems that Chai has filed a suit

against Netfirms, a Canadian web hosting company incorporated in the United States, for releasing personal information to the Thai government. Netfirms’ disclosures allowed Thai officials to identify, detain, and interrogate the plaintiff, Mr. Anthony Chai, both in Thailand and on U.S. soil. These disclosures, without which Mr. Chai would have remained anonymous, resulted in the Thai government charging Mr. Chai with violating a Thai law that restricts free speech – ironically, for comments he wrote online criticizing that very law.

The suit “alleges that the company’s conduct violated California state law, as well as Constitutional and international human rights law.”

According to the account filed, Chai owned a

computer store in Long Beach, California from which he and his patrons would access and anonymously post comments on a Thai-language pro-democracy website, Manusaya.com, hosted by Netfirms. Many of the anonymous comments expressed concern with Thailand’s lese majesté laws which prohibit any negative statements about the Thai monarchy and provide for severe punishment, including imprisonment for up to fifteen years.

The suit claims that Chai’s privacy rights were violated. Thai government officials are said to have requested that Netfirms suspend Manusaya’s account. Netfirms is alleged to have done this and “provided Mr. Chai’s IP address and e-mail address to the Thai officials without notice and without his consent.”

As a result of this release of Mr. Chai’s confidential personal information to Thai government officials, he was subsequently detained at the Bangkok airport, taken to the Department of Special Investigations, and interrogated about his postings on the website. After finally being released from police custody in Bangkok and returning home to California, Mr. Chai was then interrogated by Thai officials over the course of two days on U.S. soil at a hotel in Hollywood, California. Mr. Chai was later informed by Thai officials that if he returns to Thailand, he will be arrested and charged with violating lese majesté laws.

This is a remarkable account of the impact of lese majeste beyond Thailand’s borders and, presumably of law breaking in the U.S. by Thai officials.

The third story is short and depressing and from the Bangkok Post. Deputy Prime Minister Chalerm Yubamrung has again stated that the Puea Thai government will act much like the previous Abhisit Vejjajiva government on lese majeste. Most worryingly, Chalerm said the “government will set up a war room to curb the activities of websites with lese majeste content.” Chalerm has stated: “I won’t let lese majeste websites stay on line during this government.”

PPT can’t help wondering if the new government is going to have to out-lese majeste the previous one to “prove” a loyalty to the throne and wheedle its way back with the royalist elite. That would be a mistake for the latter group and the palace never forgets and doesn’t forgive.

Update 1: This blog post at Thai e-News may explain the Prem protest further (story 1 above). The post is in Thai and has several pictures associated with it, like the one at the right. Worth a look.

Update 2: The Bangkok Post has a little more in a report on Chalerm’s unfortunate statements regarding lese majeste and continued censorship and repression.

Update 3: There has been some international reporting of Chalerm’s statement, adding the previous comment by Yingluck that Article 112 should not be abused.





Tracking lese majeste in the US

7 05 2010

The continuing efforts by Thai politicians and officials, including palace representatives, to stifle discussion of the monarchy has reached the distant shores of the United States.

Reporters Without Borders (7 May 2010) and the World Organization for Human Rights USA (“Human Rights USA”) have issued a statement on the case of Anthony Chai, “an American citizen from California, was interrogated by Thai officials in Thailand and again later in the U.S. for allegedly insulting the monarchy in 2006. Originally from Thailand, Chai was granted US citizenship in the late 1970s. He faces possible arrest if he returns to Thailand.”

Chai is said to have posted to http://www.manusaya.com,  comments about the Thai king that “were traced to Chai’s business computer.” This is tracing someone domiciled in the US. It is added: “It is believed that Chai’s IP address was provided by the web hosting company without his knowledge. In response, the U.S.-based hosting company shut down the website.”

The two organizations expressed outrage and noted that the US government was apparently allowing foreign governments to restrict constitutionally-protected rights.

For those who always claim the palace has no role in lese majeste cases, note that Chai claims that he was interviewed by a team of officials that included a representative of the palace.








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