Thailand Awaits Pivotal Verdict on Liability for Internet Intermediaries
Thai journalist Chiranuch Premchaiporn, better know by her pen name Jiew, is awaiting an April 30th court verdict that could sentence her to years in prison for violating Thailand’s draconian crackdown against free speech. Jiew’s case has focused international attention on Thailand’s lèse majesté laws, which have been used to block websites and suppress political dissent. The ruling will help clarify liability for Internet intermediaries such as Jiew, who is the director of the popular Prachatai news site.
Jiew is charged with violating Thailand’s 2007 Computer Crime Act and paragraph 112 of the Thai Penal Code, which prohibits lèse majesté or offending the monarchy. She faces a 20-year prison sentence for not being sufficiently prompt in deleting comments posted to a Prachatai online forum deemed insulting to the Thai royal family. Thai authorities have used lèse majesté to impose long prison sentences on bloggers, texters, and website administrators and create a climate of fear and self-censorship in Thailand.
“In my case, we have intermediary liability. We are self-censoring. There are no clear boundaries, no protection from law enforcement, no safe harbor,” said Jiew during a conversation in Bangkok last month. “We have a problem with law enforcement and their understanding of how the Internet works."
An arrest warrant was first issued for Jiew in March 2009. Authorities added nine additional charges and a second warrant was issued in September 2010. Jiew was arrested at Bangkok International Airport as she was returning from speaking at the Internet at Liberty conference in Budapest, Hungary and the United Nations Internet Governance Forum in Vilnius, Lithuania. Her second arrest was prompted by pseudonymous comments published on Prachatai’s online forum in 2008 sparked by an interview with political activist Chotisak Onsoong. By the time she was detained at the airport, Jiew had already shut down the Prachatai forum to protect users. According to Jiew, visitors posting comments to the site were targeted for surveillance and police asked for log files that exceeded Thailand’s 90-day limit. Breaches of lèse majesté are considered threats to national security and Thai ISPs turn over the IP addresses of suspects to authorities without requesting warrants.
Using Intermediary Liability to Stifle Dissent
Thailand’s use of lèse majesté illustrates how intermediary liability can be used for unchecked suppression of the open Internet. During her trial, Jiew’s attorneys presented witnesses to clarify the impact of the law including Prachatai website moderator Kittiphum Juthasmit, who testified that the nonprofit news service was forced to recruit 12 volunteer moderators to remove unlawful content. But when the number of postings dramatically increased after Thailand’s September 2006 coup d’etat, it wasn’t possible for the site to review every comment. Wanchat Padungrat, the owner and administrator of Thailand’s largest web portal pantip.com, testified that his site used key-word filtering and five or six full-time employees to moderate comments. But Wanchat noted that the volume of postings and their ambiguity made it impossible to verify all comments - and doing so would prohibitively expensive for any Thai website.
“This will destroy the Thai Internet industry because we cannot compete with foreign companies,” said Jiew. “People will provide services from international companies and that will be the consequence of the chilling effect of this case.”
Under lèse majesté, even those with enhanced access to a website can be prosecuted. In March 2011, Thantawut Thaweewarodomkul, a web designer for Nor Por Chor USA was sentenced to 13 years in prison for three comments posted to the website. A Thai ISP revealed that an IP address belonging to Thaweewarodomkul connected to the website via an FTP site he used for uploading images. The court found Thaweewarodomkul guilty even though his traffic was sent on a different time and date than the messages. The judge in the case declined to examine the logs. “If you are a webmaster, administrator or moderator and you have higher access to an area of the site, then you can be held liable if you have more privileges,” said Arthit Suriyawongkul of the Thai Netizen Network.
Despite increasing prosecution under lèse majesté, Jiew is still optimistic that she can win her case. She says her judge understands that the verdict will have consequences for the Thai economy and has been open to evidence about international standards for the moderation of online forums. “Once we see clarity in the law, we can comply with the law,” said Jiew. “We didn’t intend to violate the law, but when the law is not clear, it provides an opportunity for officials and authorities to abuse it.”
Fabrication of Digital Evidence
Wason Liwlompaisarn, founder and webmaster of blognone.com, the Thai equivalent of Slashdot, believes that Jiew’s case could help set standards to help protect intermediaries from liability. But Liwlompaisarn is worried about misuse of digital evidence in lèse majesté cases. He points to the prosecution of 62-year-old truck driver Ampon Tangnoppakul who was sentenced to 20 years in prison for allegedly sending four text messages defaming the monarchy. Known in Thailand as “Uncle SMS,” Tangnoppakul denied the charges and told the judge he didn’t know how to text. Liwlompaisarn said the case has raised alarm in Thailand about the forging of IMEI phone identification numbers and a judiciary that declines to authenticate the source of digital evidence. He said the judge in the case refused to review the SMS logs which showed the texts in question were inbound, not outbound.
“With a mobile phone, you can craft evidence and send it to the police which they can use to prosecute. It’s easy to fabricate,” said Liwlompaisarn. “I don’t expect the judge to be highly technical, but they should have a basic knowledge to understand what’s happening.”
David Streckfuss, a scholar who monitors lèse majesté, told Reuters that 478 known cases had been submitted to the Thai Criminal Court since 2006. A recent report from Reporters Without Borders noted that 112 lèse-majesté cases were reviewed by Thai courts between January and October of 2011 alone. Deputy Prime Minister Chalerm Yubamrung announced in December that the government would expand online surveillance to enforce lèse majesté and invest $13 million dollars in a “lawful interception” system.
During the inauguration of Thailand’s new Cyber Security Operations Center the Minister of Information and Communications Technology (MICT) Anudith Nakornthap he said he no longer sought court orders to close or block offending web sites. Nakarnthap stated that his ministry blocked more than 60,000 websites from September to November of 2011 compared to 70,000 in the preceding three years. Freedom Against Censorship Thailand (FACT) reports that 839,556 Thai websites are now blocked, including all of YouTube which is inaccessible for the first time since 2007. According to FACT, MICT spends billions of baht (equivalent to tens millions of US dollars) to censor offending websites.
MICT demanded last year that Facebook delete 10,000 pages for violating lèse majesté. Thai Facebook users who click on the “like” or “share” buttons linked to content that violates lèse majesté continue to be prosecuted. Wipas Raksakulthai, the first Thai Facebook user arrested in April 2010, was declared a prisoner of conscience by Amnesty International.
When Twitter announced in January that it would introduce geolocated censorship based on the users country location, MICT permanent secretary Jeerawan Boonperm said he would work with Twitter to make sure that tweets in Thailand complied with local law. Jeerawan noted that MICT already had "good cooperation" from Google and Facebook.
Even those who violate lèse-majesté outside of Thailand are prosecuted by Thai authorities. Thai-born American citizen Joe Gordon was sentenced in December 2011 to two and a half years in prison for posting links on his blog to translated portions of The King Never Smiles, an unauthorized biography of Thai King Bhumibol Adulyadej. The infractions were committed while Gordon lived in the U.S. raising alarm about the reach of Thai law and its impact on foreigners.
“The Thai government has established judicial power over the entire world and they enforce it in Thai territory,” said Suriyawongkul of the Thai Netizen Network. “The U.S. counselor gave an interview to the media about the Gordon case and said she was disappointed in the judicial system. Right after that, the Embassy Facebook page was attacked and they locked the page.”
Denial of Bail for Defendants
Human Rights Watch reports that Thai courts often deny bail for those accused of lèse majesté. This is especially true for supporters of the opposition party United Front for Democracy against Dictatorship, also known as the Red Shirts. In February, a coalition of international human rights groups spoke out against denial of bail in lèse majesté cases. One of the “Red Shirts” denied bail is former editor Somyos Prueksakasemsuk who is facing 30 years in prison for refusing to reveal the name of one of his reporters. After being refused bail a seventh time in February, Somyos’s son went on a hunger strike to demand his father’s release.
Prachatai reports that veteran activist Surachai Danwattananusorn, denied bail and sentenced to seven years in prison under lèse majesté, intends to seek a royal pardon for all political prisoners, including those jailed for lèse majesté. In addition to Surachai, the letter will be signed by eight other prominent lèse majesté convicts and defendants including Somyos Prueksakasemsuk, Joe Gordon, Sathian Rattanawong, Wanchai Saetan, Nat Sattayapornpisut, Suchart Nakbangsai and Darunee Charnchoensilpakul. Thai free speech activists say the letter could help pressure the government to reconsider their efforts to undermine democracy and punish dissent. Amphon Tangnoppakul has withdrawn an appeal in his case and will also seek a royal pardon as will Thanthawut Thaweewarodomkul, once he knows the outcome of his bail request.
EFF condemns the Thai government’s ongoing efforts to silence political speech on the Internet. We join with the Thai Netizen Network, Human Rights Watch, Amnesty International, Reporters Without Borders, Committee To Protect Journalists, #freejiew, and Free Jiew in opposing the use of lèse majesté to censor the Internet. Jiew urges netizens to write the Thai government asking for an end to intermediary liability, the right to bail in lèse-majesté cases and IT education for judges.