Legal ambiguities are a hazard for almost everyone who publicly comments on Thai politics and society. Earlier in the week there was, of course, some indication that the Thai government is toughening (and even internationalising) its effort to prosecute critical voices.
Lese majeste has not gone away. While some people will still take the Minister-Counselor of the Thai Embassy in Canberra, Saksee Phromyothi, at his word when he stated, back in 2009, that “[t]his law doesn’t apply to anyone outside Thailand” there are good reasons for weighing the emerging evidence carefully.
For bloggers, in particular, there is a huge amount that is just simply not known about the implementation of the lese majeste law and the Computer Crimes Act. Until these matters are tested in open courts its impossible to say just how much of the speculation around these issues should be trusted, and how much of it can be consigned to the dustbin of irrelevance.
Before the recent postponement of Prachatai editor Chiranuch Premchaiporn’s trial we were developing, at the very least, more of an idea than ever before. And the message from Thailand’s authorities is one that should concern anybody who cares about the discussion of Thailand’s political story. In the minds of some well-positioned officials, as reported after the trial’s postponement, these are the key issues (bolded for emphasis):
The hearings, conducted at the Criminal Court in Ratchadaphisek Road in Bangkok, highlighted how authorities, particularly the Ministry of Information and Computer Technology (MICT), defined lese majeste and online intermediary liability, and the MICT’s procedures on the handling of online messages accused of containing contents defamatory to Thailand’s monarchy.
In his testimony, MICT IT regulation bureau head Aree Jivorarak revealed that in the view of authorities, lese majeste online did not necessarily mean outright defamation of the monarch or the royal family but even the mere allusion or references to them would suffice for liability. He interpreted certain phrases and even certain pronouns in the messages in question as alluding to members of the royal family.
Related to this, another prosecution witness, private lawyer Pairat Yawong said in his testimony that even the retelling of certain factual accounts of the royals’ action, in this case, the posting of a message discussing the attendance of the Queen to a funeral of a member of the Yellow Shirts in 2008, could constitute lese majeste just because of the perceived danger it would pose to society.
The cross-examination of Aree also revealed that the MICT had not been able to identify the persons behind nine of the 10 posts in question because according to him, aside from using aliases, the posters could only be identified through the Internet Protocol (IP) addresses. The only one whom the MICT could identify was the intermediary, in this case, Chiranuch who is the webmaster.
The criminal liability of the third party intermediary was also discussed. Upon cross-examination, MICT legal advisor Thanit Prapathanan admitted that even if a webmaster took down messages that contained lese majeste, the ministry would still proceed with a lawsuit because the ministry is compelled to prosecute when lese majeste was involved.
At the time the court order to shut down Prachatai.com was issued, Chiranuch had already removed the offending messages from the website’s forum section. He said that the law does not require any proof of intent to defame; the webmaster, if he or she failed to perform self-censorship on messages that contain “blatant” lese majeste material, would still be liable.
Despite this, Thanit implied that the MICT is exempted from similar obligations when he said that the ministry could not take down links to online messages that may be liable to lese majeste from its own website. Earlier, the defense lawyers noted that the MICT website provides links to online contents that have lese majeste materials.
Without introducing undue paranoia about this legalistic and interpretative minefield, this reads to me like the clearest indication yet that Thai authorities are prepared to take their war against Internet content to a whole new level. We know that their inability to control online political and social discussions is a persistent frustration for (some parts of) the Thai bureaucracy. And now they are clarifying just how far they are prepared to go.
Has somebody decided that the only effective course of action is to outlaw blogging about anything that touches on the royal family?
As a strategy for criminalising, and thus alienating and radicalising, political discussion this one is perfect. But if the goal here is to protect Thailand’s royal family, or other parts of the political establishment, then I expect the tough interpretations will not have the desired effect.