Intermediary Liability in Thailand Done Right and Done Wrong
Thailand, after the 2014 coup by the Royal Thai Armed Forces unseated its democratic government, sits a disturbing gray area with regard to the due process and the rule of law. While martial law was, in theory, revoked last week, and ordinary governance restored, the military are still clearly in charge, and the current junta still expressly reserve the right to intervene at will. As with the last coup, the current dictatorship has taken advantage of its powers to prepare or pass statutes that will persist, even when (or if) full democratic rule is restored. Among the barrage of laws passed were modifications to Thai copyright and computer crime law. Curiously, a detailed examination of the changes shows among the expected set of restrictions on online freedoms, some positive improvements: that is, if the junta and future Thai governments can be trusted to follow their own rules.
Thailand's arbitrary practices of blocking Internet content, and pursuing criminal charges against those who host it, have long made it a treacherous place for those sharing information online. Besides affecting large Internet companies like Google (YouTube has been blocked several times), these laws also hit ordinary individuals—such as Chiranuch Premchaiporn, who faced criminal prosecution and was convicted of an offence in 2012 when she failed to act quickly enough to delete forum comments deemed to be insulting to the Thai monarchy (an offence known as “lèse majesté”).
Copyright is also used as a justification to remove online speech from the Thai Internet, just as it is elsewhere in the world. Although individual cases do not rise to the same level of injustice as lèse majesté prosecutions, in the aggregate illegitimate copyright censorship also creates a real barrier to the dissemination of knowledge and culture online. The lack of any safe harbor law has resulted in over a 90% takedown rate by Thai ISPs receiving untested claims of copyright infringement. The International Intellectual Property Alliance (IIPA) describes this as a mark of “good faith cooperation” on the ISPs' part; a more apt description might be that the ISPs are acting on an instinct for self-preservation, knowing the potential liability that faces them should they refuse.
A package of Digital Economy bills recently passed by the Thai junta will bring in some changes to this dire state of affairs when the legislation comes into effect this year. The first is an amendment to the 2007 Computer Crime Act, which currently makes Internet intermediaries liable for offenses such as lèse majesté that are committed by their users. The relevant amendment adds a rider to this, exempting service providers from liability only if they “can prove that they follow[ed] the instruction to restrain the dissemination of such computer data or destroy[ed] such data from a computer system as required by a Minister.”
The second amendment relates only to copyright. Although it also exempts Internet intermediaries from liability, it does so in much broader circumstances. Provided that they did not control, initiate or order the infringement, the service provider is shielded from liability for content until they receive a court order ordering them to remove it. In general, this approach is consistent with the Manila Principles on Intermediary Liability, released last week by EFF and its partners from around the world, which provide that “Content must not be required to be restricted without an order by a judicial authority”.
The contrast between the treatment of these two types of content is striking, and almost the converse of their treatment in the United States, where section 230 of the Communications Decency Act exempts intermediaries from liability for content on grounds such as defamation (unless they fail to comply with a court order to remove the content), yet for alleged copyright infringements applies a looser standard under the DMCA that requires them to take content down merely after receiving a notice (with only the chance that the removal might later be reviewed by a court, if the user who shared the content disputes it).1
In fact, Thailand and the United States both have it wrong. There is no consistent rationale for intermediary liability laws to treat one ground of liability, such as copyright infringement, differently from other grounds. One violation of the law may face harsher penalties than the other, but whatever consequences apply, those penalties ought to follow the speaker, not the intermediary who facilitates the speech. And an intermediary is never the appropriate party to determine whether a communication is unlawful or not—that should always be the responsibility of a court.
That's why in Thailand's case, the Computer Crime Act, which allows ISPs to be found liable for the speech of their users without a prior court order, remains as noxious as ever, even after considering the latest very minor amendment. Conversely, the new amendment to the Copyright Act introduces a much better model; one that allows Internet intermediaries to encourage rather than to stifle the free expression of their users. Like Chile, which has a similar model requiring judicial assessment of copyright infringement allegations, this is a copyright safe harbor scheme done right.
Through the Manila Principles we advocate for the adoption of the same model of broad immunity for intermediaries from liability for their users' content, in every country and for all types of content. It's amazing how what may seem like a technical legal issue can have such a major impact on users' human rights online, by limiting the potential for intermediaries to be used as a chokepoint for content censorship. Even better, because limiting their liability means that intermediaries don't have to watch their backs at every step, it also induces them to contribute towards a more innovative and vibrant Internet for everyone.
Such protections in law, of course, rely on the authorities following the law. In the past, the censorship of online content in Thailand has, in theory, required an order from a Thai court. However, even when the country was democratically governed, successive administrations increasingly fell back on informal and secretive agreements with ISPs that ensured certain Internet-wide blacklists of political content be enforced for the majority of Thai Internet users without any judicial oversight. A law is only a law if it is exclusively and universally followed. That's why the Manila Principles strongly oppose circumventing due process and the rule of law through 'so-called “voluntary” agreements'. It's also why, in Thailand, a ruling junta that still grants themselves a general exception to obeying their own nation's laws, has not yet returned to accepted standards of democratic governance.
- 1. The Thai copyright amendments mirror the DMCA in other ways—notably in providing penalties for the circumvention of DRM. Although we don't support any laws that provide legitimacy to restrictive, anti-user DRM technology, the Thai version of these laws is less harmful than the DMCA's version, in that it provides more extensive exceptions to the circumvention offense, and does not create an outright ban on the supply of devices that can perform circumvention.