Prosecutions under the Emergency Decree

Two dozen NGOs have issued a letter demanding that all prosecutions under the Emergency Decree on Public Administration in Emergency Situation that was ostensibly about Covid-19 be dropped “to stop all persecution under the Emergency Decree.”

The state of emergency was in place from 26 March 2020 to 1 October 2022. The regime used it for political purposes.

ARTICLE 19’s joint letter observes:

Our analysis has revealed that a number of the legal and practical responses undertaken by the Thai authorities purportedly to address public emergencies in the past two years have not complied with rule of law principles and international legal obligations. In particular, bringing criminal charges against and prosecuting persons under the Emergency Decree for simply exercising their rights to expression and peaceful assembly could not be considered necessary and proportionate even during the pandemic; moreover, it did not adhere to the principle of legality as required by international human rights law, and was inconsistent with the legitimate purpose of ensuring the protection of public health.

ARTICLE 19 on deepening censorship

We reproduce a recent ARTICLE 19 statement:

Thailand: Proposed initiatives to combat ‘fake news’ undermine freedom of expression

Proposed government initiatives to address ‘fake news’ would further curtail digital rights and freedom of expression in Thailand, said ARTICLE 19. In recent weeks, the Ministry of Digital Economy and Society (MDES) has disclosed plans, including new regulations under the Computer Crimes Act, that would tighten governmental control over social media platforms and impose additional barriers to online expression. The Ministry should abandon these efforts in favour of an approach that respects the human rights of social media users and others expressing controversial or critical opinions.

“Official actions to combat ‘fake news’ are often less about preventing online harms than expanding State control over the internet,” said Matthew Bugher, ARTICLE 19’s Head of Asia Programme. “While we have not yet seen the proposed new regulations, recent actions and statements by government officials are cause for alarm.”

On 20 May 2021, MDES announced plans to update ministerial regulations under the Computer Crimes Act to address the dissemination of false information. The Ministry expects to complete a draft of the new regulations later this month.

The announcement by MDES comes amid a number of government actions ostensibly aimed at combatting ‘fake news’. On 14 May 2021, Deputy Prime Minister Prawit Wongsuwan instructed the Anti-Fake News Centre to intensify its efforts to combat ‘fake news’. On 18 May Prime Minister Prayut Chan-o-cha signed an executive order establishing the Committee on Suppression and Correction of Dissemination of False Information on Social Media. On 27 May, Chaiwut Thanakmanusorn, the Minister of Digital Economy and Society, established three new sub-committees: one for the supervision of social media, one for enhancing law enforcement measures to prevent and solve problems on social media, and one for drafting ministerial regulations under the Computer Crimes Act. And on 8 June, the Prime Minister and Minister of Defence assigned the Council of State to review Thai and foreign laws, with a focus on regulating social media platforms such as Twitter and Facebook. Officials were specifically instructed to review Indian legislation, a concerning development in light of recent measures taken there that violate free expression and privacy rights.

While neither MDES nor other government bodies have provided much information about the proposed regulations under the Computer Crimes Act, statements by Chaiwut have offered clues about what to expect. He announced the new regulations using language concerning the collection of network traffic data. Late last month, Chaiwut stated that the Ministry may require social media accounts to be registered with true names and ID information. He further mulled the possibility of requiring social media companies to establish offices in Thailand.

Moreover, recent actions by Thai authorities give an indication of what to expect from the increased focus on ‘fake news’. On 2 June 2021, a court ordered Facebook and internet service providers to block or remove eight Facebook accounts for allegedly spreading ‘fake news’. These include the accounts of political commentator in exile Pavin Chachavalpongpun and the Royalist Markeplace group he founded—both likewise targeted last year under the Computer Crimes Act and the subject of a legal complaint against Facebook—as well as the account of journalist Andrew MacGregor Marshall. These accounts are notable for featuring critical commentary on government officials and the Thai monarchy.

The proposed new regulations would add to a number of existing mechanisms to monitor and punish vaguely defined ‘fake news’. In 2019, Thailand established the ‘Anti-Fake News Centre’ and in 2020 the Technology Crime Suppression Police Bureau was set up to monitor cybercrime, including ‘fake news’. Thailand employs a number of hybrid measures to combat ‘fake news’ that rely on artificial intelligence and human analysts to monitor social media activity on Facebook, Twitter, YouTube, and other platforms. Thailand’s application of these methods to target social media users has come under criticism by human rights experts, including the UN High Commissioner for Human Rights. Rather than addressing these criticisms, the proposed changes raise fresh concerns.

In light of other measures to collect and track personal data, MDES’s suggestion of the need to collect additional network traffic data raises concerns over the risk of interference with the right to privacy. Thailand already requires SIM cards to be registered with national IDs or passports. Beginning last year, Thailand also rolled out a facial recognition system tied to SIM card registration in the southern border provinces, which disproportionately targets ethnic Malay Muslims who are already subjected to other biometric data collection. While it is unclear how Thailand will force telecommunications and internet service providers to collect and hand over user data under the new regulations, adding data retention and handover requirements enhances government capacity for surveillance and risks stifling expression.

MDES’s suggestion that it would like to see social media companies establish offices in Thailand is worrying. ARTICLE 19 has previously raised concerns over domestic incorporation requirements, which put local staff members at risk and give governments greater leverage over social media platforms.

It is unclear exactly how real-name registration requirements for online activity could be implemented in practice, but MDES has reportedly acknowledged it would seek cooperation from social media platforms and related online services. However, this also raises questions about the risk of penalties should such platforms refuse to comply with government demands that do not comply with international standards.

In a 2017 Joint Declaration, four special mandate holders on the freedom of expression noted, ‘general prohibitions on the dissemination of information based on vague and ambiguous ideas, including ‘false news’ or ‘non-objective information’, are incompatible with international standards for restrictions on freedom of expression’ and found that they ‘should be abolished’.

In a 2013 report to the Human Rights Council, the UN Special Rapporteur on the freedom of expression held that ‘real name registration requirements allow authorities to more easily identify online commentators or tie mobile use to specific individuals, eradicating anonymous expression’. And in 2015, the Special Rapporteur added that ‘privacy interferences that limit the exercise of the freedom of opinion and expression…must not in any event interfere with the right to hold opinions, and those that limit the freedom of expression must be provide by law and necessary and proportionate’. The categorical denial of anonymity online risks infringing on the ability of social media users to hold and form opinions and engage in free expression.

In light of these concerns, MDES should abandon plans to introduce additional restrictions on internet freedom under the Computer Crimes Act and should instead amend the law so that it complies with international human rights standards.

“Misinformation is a real problem and Thai officials are right to be concerned,” said Bugher. “However, policy measures that rely heavily on censorship, surveillance, and criminal sanction shut down public discourse, contributing to the mistrust and secrecy that feed misinformation. The Thai government should instead focus on transparency, the dissemination of accurate information, and creating an enabling environment for the exercise of the rights to freedom of expression and access to information.”

Ministry of Foreign Affairs on lese majeste

Andrew Spooner at Asian Correspondent has a post worth posting in full:

Once again, London-based freedom of expression activists, ARTICLE 19, are taking the lead in pushing the international agenda for the repeal and reform of Thailand’s draconian lese majeste law. In addition, in the interview below, they have also called for the immediate release of ALL of Thailand’s lese majeste prisoners.  But the most surprising development – which ARTICLE 19 have highlighted in their most recent press release – is the Thai Foreign Ministry’s quite extraordinary comments on lèse majesté.

“In a country where political discourse can amount to treason, ARTICLE 19 welcomes the recent Thai Foreign Ministry admission that the enforcement of the lèse-majesté law has affected people’s freedom of expression. The admission comes nearly two weeks after Thailand underwent its first United Nations (UN) human rights review, in which the excessive use of the lèse-majesté law was highlighted by the ARTICLE 19 delegation in attendance, and echoed further by UN member states.”

The press release also went on to say that: “According to figures produced by the Thai Judiciary authorities, approximately 480 people were brought before the lower courts in 2010 on lèse-majestécharges. Freedom Against Censorship Thailand and i-Law (Thai groups monitoring censorship) identified 75,000 websites that were blocked in 2010 under the Computer Crime Act and Emergency Decree, 57,000 of which for containing lèse-majesté content.”

(The full press release can be read here).

Since that press release has been published I managed to conduct a short interview with Dr Agnes Callamard, ARTICLE 19 Executive Director. I started by asking Dr Callamard how significant a step this admission is by the present Thai government?  After all, this is the first time a Thai govt has acknowledged that lese majeste breaches affects freedom of expression.

“The admission by the Thai Foreign Ministry is undeniably significant, as the country has a long history of censorship.  Mechanisms for censorship include strict lèse majesté laws, direct government and military control over the broadcast media, and the use of economic and political pressure to silence critical voices.

    The heavy-handed implementation of the lése-majesté (LM) law in recent years has resulted in a pervasive climate of self-censorship amongst the media and civil society.  People are too scared to even mention the law because of the severe repercussions. Therefore, the government’s acknowledgement of its mis-use is a first step in the right direction. However, ARTICLE 19 maintains that the repeal of the law is the only legitimate outcome of this process, as by its very existence, lèse-majesté law constitutes a threat to political expression and freedom of expression in Thailand.

    In addition, ARTICLE 19 urges the Thai government to review in a similar vein the Computer Crime Act (CCA), which has contributed to a sharp increase in the number of lèse majesté cases tried each year in Thailand. Like with the LM, the CCA is also being misused to suppress critical views. The Thai government should seize on the momentum gained to identify all amendments necessary to bring it in line with the Thai Constitution and international freedom of expression standards.”

Do you feel the present government are more committed to reforming or repealing LM than the previous government?

“Upon becoming Prime Minister, Yingluck Shinawatra,  publicly stated that the new government will review all criminal charges and lèse majesté cases to ensure fair investigations,  with the view of creating an atmosphere for reconciliation.

    At the same time, public statements made by the Deputy Prime Minister on August 26 2011, in which he stated his intention to further crackdown on LM on the internet directly contradicts the PM’s statement. This raises serious concerns regarding the level and nature of the commitment of the Thai government to address and redress  freedom of expression violations.

    ARTICLE 19 strongly encourages this new government to help turn the tide on the crackdown on freedom of expression and to take all necessary steps towards repealing the LM law.  More generally, ARTICLE 19 calls on the new government to take all necessary measures towards stronger protection for freedom of the press and freedom of expression in the country.  In this context, it is crucial that any new policies or measures introduced regarding political expression, the media or internet are in line with international human rights standards.”

Some lese majeste prisoners, including those on remand awaiting trial, are being held in appalling conditions – what action would you like to see the Thai govt and international community take regarding this situation?

“ARTICLE 19 is calling for the immediate release of all those imprisoned for the peaceful exercise of their right to freedom of expression.  This includes anyone currently imprisoned for LM crime, or awaiting trial on LM charges.

    ARTICLE 19 believes that the international community has a crucial role to play in supporting the new Thai government towards establishing a strong protection for human rights, including freedom of expression, in Thailand. The public admission of problems with the LM law comes after Thailand’s first peer-review at the United Nations Human Rights Council.  There is no doubt that the role of the international community has been paramount in getting the new government to address the bleak state of freedom of expression in the country. International pressure must thus persist.”

Andrew Spooner can be found on his public Facebook page here.

ARTICLE 19 – Thailand’s lese majeste law used to “target political opponents”

PPT received this post from Andrew Spooner:

Last week in Geneva, Switzerland, Thailand’s freedom of expression record came under particular scrutiny during the Universal Periodic Review at the United Nations Human Rights Council (http://bit.ly/oIpZCz).

A number of recommendations flowed from this meeting not least from Frank La Rue, the UN Special Rapporteur (http://bit.ly/ncVNCK) on the right to freedom of opinion and expression. He urged Thailand to hold broad-based public consultations to amend section 112 of the penal code (Thailand’s infamous and draconian lese majeste law that imprisons people for up to 15years for “defaming the monarchy”) and the 2007 Computer Crimes Act so that the country is in conformity with the country’s international human rights obligations.

Several countries backed the call for the 112 law to be reformed (http://bit.ly/oIpZCz), including Brazil, Indonesia and Canada while other nations such as the UK, France, Norway asked for space to be opened up in Thai public discourse where the future of the law could be discussed.

Thailand’s key military ally and longstanding partner, the USA, have remained almost completely silent on the issue of lese majeste despite the present incarceration of one of their nationals, Joe Gordon (http://bit.ly/nPV8Dv), in Thailand under 112.

One of the attending organisations in Geneva was the UK-based freedom of expression advocates ARTICLE 19 (http://www.article19.org/). Amy Sim is their Senior Programme Officer for Asia and I had a chance to catch up with her just after the entire review had ended and ask her a few questions about Thailand.

Q. If, as is claimed, the present incarnation of Thailand’s lese majeste (LM) law is in breach of international legal requirements regarding freedom of expression what action would you like to see the international community take in regards to Thailand’s continued use of this law?

ARTICLE 19 would like to see the United Nations Office of the High Commissioner of Human Rights and countries with close links to Thailand, to raise serious concerns with the Thai government on the misuse of the Lese Majeste law and the 2007 Computer Crime Act (CCA) which has been used as a default lese majeste legislation. The Thai government must open up dialogue with local civil society actors on the provisions of the lese majeste law and CCA and their use, and the government must amend these laws in accordance with Thailand’s obligations under its Constitution and the International Covenant of Civil and Political Rights.

Q. The US Embassy in Bangkok has been considered by many as being very ineffective in protecting the rights of its own citizens – in this instance particularly that of the presently incarcerated US citizen Joe Gordon – in regards to the application of the lese majeste law with a recent Wikileaks Thai cable revealing the US Embassy to believe that “quiet diplomacy” was more effective than vocal protest. There have also been strong rumours that the US Embassy has advised Joe Gordon to plead guilty in order to secure his release – what action should foreign governments take to protect their own citizens from the long reach of LM? (Thailand claims universal jurisdiction of LM and Joe was arrested because he supposedly posted a link to LM material while he was actually resident in the USA).

We cannot comment on the rumours surrounding the Joe Gordon case. Naturally, his case is a cause for concern and indicative of the far reaching implications of the LM law. Each government makes its own assessment and judgement pending the situation of the cases and its diplomatic relationship with the Thai government.

Q. Most of the recent arrests, prosecutions and harassment via the application of lese majeste, all of which was ramped up massively under the previous Thai Democrat Party government, seemed to have a political tone to it – would you agree that the predominant use of LM has been that of blunt tool to stifle dissent against particular ruling groups?

Yes, given that lese majeste charges were mainly brought on red-shirts affiliated individuals and critics of the government it is obvious that the broadness of the law is being used as a tool to target political opponents and critical voices. It is almost as if the Thai people’s love for their king has been hijacked by politicians to achieve their own political agenda, in which critical dissent is not tolerated.

Q. What message would you give to the recently elected Pheu Thai government of PM Yingluck Shinawatra?

ARTICLE 19 hopes the new Prime Minister will address the countries’ deteriorating freedom of expression situation by amending the lese majeste Law and Computer Crime Act. We also call for the release of individuals convicted for exercising their legitimate right to freedom of expression and urge the respective authorities to drop charges on individuals for remarks made that are deemed lese majeste . We also hope that the Prime Minister will reverse the policy announced by the Deputy Prime Minister to crack down on LM on the internet and to establish a task team to monitor internet content, which will create a chilling effect on freedom of expression in Thailand.

We are glad to hear from the Thai delegation during the UPR session at the United Nations last week, that the Thai government recognises the implications of the LM law and is keen to prevent abuse. We understand that a review of the lese majeste law is ongoing. We hope the outcome of the review will be made public and the government will take concrete steps to implement its recommendations with close consultation with civil society organisations.

Q. How could LM be reformed so that Thailand’s monarchy can remain protected and the law is not used as an attack on civil liberties?

International standards of freedom of expression require public figures to tolerate a higher degree of criticism than ordinary citizens and be open to public scrutiny. By providing special protection to the royalty, the LM law is in violation with this requirement. ARTICLE 19 is for the repeal of the LM law for these reasons. We hope the Thai government will encourage open dialogues on LM and provide a clear timeline for the reform of the LM law and CCA to minimise abuse of these laws and their impacts on the right to freedom of expression and the right to information.

Q. More recently the head of the Thai Army, General Prayuth, said that LM in its present format shouldn’t be “touched”. The USA have an extraordinarily close military relationship with the Thai Army – should US citizens and law makers committed to freedom of speech be questioning the terms of this relationship when such statements are being made?

Given USA’s strong constitutional guarantee for freedom of expression, we would of course hope to see the US speaking out on Thailand’s suppression of speech using LM law.

Q. Both HRW and AI, despite maintaining offices and staff in Bangkok, have refused to mount any meaningful campaign against LM – do you think it is time for a stronger and coordinated international campaign to be mounted?

There is already a concerted effort among a number of national, regional and international organisations on campaigning against LM. The recent advocacy activities and trial observation around the case of Chiranuch is an example. Besides international groups, Thai NGOs have done a great job campaigning against LM and garnering support from foreign governments and international organisations, which is starting to pay off as evident from the responses from the Thai delegation during Thailand UPR.

Q. The international media have a strong presence in Bangkok yet few journalists mention the restrictions placed on them by LM when filing reports. Arguably, the Thai authorities have maintained one of the most potent self-censorship campaigns anywhere on earth – do you think these journalists are serving the wider public by failing to mention both the restrictions and the self-censorship they operate under?

Self-censorship among journalists is a serious problem, and this is not limited to Thai journalists but also international correspondents reporting on Thailand. I have however also seen many pieces of good journalism from both Thai and foreign media discussing the issue of LM and freedom of expression. Journalists have the responsibilities to report accurately and provide information of public interest to its readers, without being subjected to any form of censorship.

Andrew Spooner can be found on his public Facebook page here: https://bitly.com/qbcGct.

Updated: ARTICLE 19 on declining freedom of expression in Thailand

In a timely press release, ARTICLE 19 “has submitted a report to the United Nations Human Rights Council highlighting the Thai government’s restriction of the right to freedom of expression including emergency powers, the Computer Crime Act, defamation and lèse majesté laws. The report also raises concerns over the lack of implementation of the Official Information Act, and the control of the media by the military and government.”

Read the press release here (it’s a PDF). We have been unable to locate the submitted report.

Update: A reader located the report. Thanks.

Defamation, film censorship, freedom of speech and the monarchy

Defamation

Prachatai (1 August 2009: “Thailand: Report on defamation law”) which begins, “ARTICLE 19 and the National Press Council of Thailand (NPCT) have jointly launched a Report, the Impact of Defamation Law on Freedom of Expression in Thailand. The Report outlines the nature of defamation law in Thailand, as well as the chilling effect it has on freedom of expression.”

The report was released on 30 July.

The report shows the ways in which defamation laws operate and the negative impact for the “free flow of information and ideas.” It also provides examples of defamation cases which have inhibited “political speech.” And the report also outlines “other restrictions on freedom of expression in Thailand, including the offence of lèse majesté, which has been used with increasing frequency in recent years to limit open debate about public authorities.”

Find the report here.

Film censorship

Prachatai (2 August 2009: “Thai film archivist: new rating for films confusing, and still includes banning”) has a story on the Cabinet approval of a ministerial regulation on the rating and censorship of films. PPT posted on this back in February, here. The regulation will come into force later this month.

According to Prachatai, “The approved ministerial regulation under the 2008 Films and Videos Act classifies movies into seven categories: 1) educational movies which the public should be encouraged to see; 2) movies appropriate for the general public; 3) movies appropriate for audiences aged 13 and older; 4) movies appropriate for audiences aged 15 and older; 5) movies appropriate for audiences aged 18 and older; 6) movies prohibited for audiences aged below 20; and 7) movies which are banned.”

The inclusion of a banned category is cause for concern: “Chalida Uabamrungjit, the Director of the Thai Film Foundation, said that to include banning in the rating system was like reintroducing Article 4 of the 1930 Films Act which was ambiguous in terms of standards.”

In the banned category, as well as scenes including sexual intercourse or the showing of sexual organs, there is the expected political categories.

On top of the political list is this: any film that “affects the Monarchy or the democratic form of government with the King as Head of State.” Note that this goes beyond the usual lese majeste category, which would normally be handled under the notorious and draconian Article 112 of the Criminal Code.

The inclusion of a vague statement about the “democratic form of government with the King as Head of State” is open to all kinds of political manipulation. So too is the category of a film that “causes disunity among the people.” Such a category gives the authorities a very wide scope to politically censor.

In a similar manner, the inclusion of films that might affect “inter-state relationships” is vague and open to political manipulation.

She also saw a problem of movie classification by age of audience, which would be a headache for those who decide the ratings.

Chalida comments that although the “Film Censorship Board is moved from the National Police Office to the Ministry of Culture, the composition of the board is barely changed…”. Further, as Chalida points out, “Now given various colours in society, if a particular movie appears in a different colour from that of the board, it could be banned…”.

ARTICLE 19, Index on Censorship, and English PEN on Suwicha Thakor’s case

On7 April 2009, ARTICLE 19, Index on Censorship and English PEN released a statement expressing concern over the conviction and sentencing of Suwicha Thakor and the practice of lesè majesté broadly. With an unusual clarity, they parse the meaning and effects of the LM law for royalty: “International guarantees of freedom of expression require public figures to tolerate more, rather than less, criticism. By providing special protection for royalty, lèse majesté laws breach these guarantees.” Read the statement in full at Prachatai: “Free speech groups call on Thailand to repeal repressive legislation”.