Day Ten – Free speech on trial in Thailand

“Prachatai gives voice to democracy.”

Nine court days beginning on February 4th were spent hearing from minions of the forces of darkness assembled by the prosecution to testify against Prachatai webmaster Chiranuch Premchaiporn. Remarkably in the 21st century, perhaps even in Thailand, 11 bureaucrats and police spoke up against free speech.

Chiranuch faces 20 years in prison for ten charges of lèse majesté under the Computer Crimes Act for comments users posted to a public Web forum police say were not removed promptly enough to suit the law.

Defence testimony started this morning, calling two witnesses highly respected in the community, both of whom co-founded the Foundation for Community Educational Media in 2004. FCEM is the civil society umbrella organisation governing Prachatai’s independent news website.

Jon Ungpakorn served as the first chair of FCEM and has remained a director of both FCEM and Prachatai. Jon is also a 2005 recipient of the Ramon Magsaysay Award, considered Asia’s Nobel Prize.

Jon was also elected to the Thai Senate, serving from 2004 to 2006. He currently serves as chair of the working group on lèse majesté in the subcommittee on civil and political rights of the National Human Rights Commission of Thailand.

Jon testified that he started Prachatai as an independent balance to Thai mainstream media. Prachatai’s four objectives are 1) To provide the Thai public with access to reliable news and information relevant to developing and strengthening the democratic functions of Thai civil society, 2) to focus news coverage on the problems, concerns, activities and accomplishments of local communities and civil society movements and organisations, 3) to strive for freedom and independence of Thai news media and 4) to promote active public participation in Thai news media.

Witness testimony disclosed that mainstream media reported on elite political leaders but Prachatai reported on issues affecting the poor, the marginalised and underprivileged. Jon became acquainted with Chiranuch during their collaboration in campaigns to support people with HIV/AIDS during 1991 and 1992. She became his natural choice for news director of Prachatai as an honest journalist with integrity.

However, the witness testified, Prachatai only became a government target after the military’s coup d’etat in 2006. Thais felt free to express themselves against the coup on Prachatai’s webboard but these views were never reported by traditional media outlets.

Prachatai’s support for freedom of expression and providing a free space for public opinion, exchange of ideas and discussion led to 10,000 new members per day at peak. News articles were scrutinised by Prachatai’s editors for content but the enormous flow of commentary on Prachatai’s webboard overwhelmed its meagre staff.

Prachatai users were validated by email address and were then permitted to initiate new topics and comment freely. Prachatai created a complaint reporting system by which a user could temporarily remove any post they found inappropriate for assessment by Prachatai monitors which could result in permanent deletion. Rude and insulting language were vigorously prohibited. Users posting such content were warned and then banned from posting if they persisted.

However, Prachatai was forced to become more stringent in its monitoring due to increased commentary about Thailand’s monarchy. Ten staff and volunteers moderated tens of thousands of postings during this period making timely takedowns impossible.

Prachatai cooperated with requests from Thailand’s ICT ministry to remove content when brought to their attention and recorded IP addresses of offensive content to identify posters.

However, Prachatai’s board and staff decided never to censor any comment in advance as this ran counter to the news portal’s support for freedom of expression. Although Jon was interviewed by the police over alleged lèse majesté comments, he was not informed that they were building evidence for prosecution of anyone at Prachatai.

Jon testified that most comments to Prachatai are social rather than political in nature, relating to the role of civil society on a broad range of grassroots issues. “Prachatai gives voice to democracy,” its founder stated.

On cross-examination by the prosecutor, Jon testified that it was certainly Prachatai’s responsibility to remove content which may be lèse majesté. However, the witness stated he wasn’t exactly sure what the prosecution meant by “risky” content.

Jon said one of the comments with which Chiranuch has been charged was overlooked for 20 days because it was posted to a forum which was largely inactive and that MICT did not bring it to the webmaster’s attention.

Jon also responded that assessing the legality of each comment is made more difficult by the fact that the monarchy may be referred to indirectly.

Although this backstory was not mentioned in court, Jon Ungpakorn knows from personal experience the true value of freedom of expression. His father, Dr. Puey Ungpakorn, was hounded into exile in 1976 and his younger brother, Ajarn Giles Ji Ungpakorn, was forced into exile in 2009, both for issues involving Thailand’s monarchy.

Ajarn Jon himself faces charges along with 50 others for challenging the military-appointed assembly in 2007 over the passage of laws supporting the military and violating human rights such as the Computer Crimes Act.

Following morning testimony by defence witness Jon Ungpakorn, Judge Kampot discussed disallowing the second defence witness. The judge finally agreed to the afternoon’s witness as long as there was no further repetition of Prachatai’s goals and objectives but was confined to its rules and enforcement.

Following midday break, Dr. Niran Pitakwatchara took the stand for the defence. Niran co-founded Prachatai and its support foundation with Jon Ungpakorn in 2004 and also served as elected fellow senator from Ubon Ratchathani province from 2004 to 2006.

He worked with Senator Jon in a Senate committee on social development, human security and media reform. Dr. Niran investigated the role of media and its Constitutional protections.

Dr. Niran is currently one of seven commissioners forming the National Human Rights Commission of Thailand until 2015. He chairs the NHRC subcommittee on civil and political rights. Freedom Against Censorship Thailand (FACT) petitioned the National Human Rights Commission in March 2011 over Thai government’s Internet censorship.

Dr. Niran’s research disclosed that Thai media is heavily manipulated by political power which led him to create Prachatai as an independent media choice. Traditional media treats news as a one-way, top-down effort and Prachatai tried to create a public conversation on the news Thai citizens through its webboard.

Although Dr. Niran testified that freedom of expression has legal limits, he said Prachatai remained one of the only outlets for public expression following the military coup. He stated Prachatai always cooperated with MICT in removing offensive content.

Dr. Niran also testified for the defence in the trial of a Prachatai poster known as ‘Bento’, the only one to be prosecuted although police have identified the posters of the remaining nine comments with which Chiranuch is charged. Noppawan Tangudomsuk was acquitted of lèse majesté.

The witness noted that ‘Bento’’s name had simply been replaced with Chiranuch’s in prosecution charge documents. He noted drily that the message not deleted by Prachatai’s webmaster stayed up for 20 days, unnoticed not only by MICT censors but by other users of Prachatai’s forum.

Ajarn Niran noted that Prachatai exists because freedom of expression in Thailand simply does not meet modern international standards for human rights. He stated, “Prachatai plays an important role in the democratisation of Thai society.”

The witness stated that most petitioners to the National Human Rights Commission are victims of political persecution because there are no clear guidelines from government on where to draw the line on illegality in discussions of the monarchy.

The prosecution declined to cross-examine human rights commissioner Dr. Niran Pitakwatchara. Perhaps the Crown did not feel up to a challenge of this crusader. Judge Kampot, however, acknowledged that, due to the position of the witness, he should feel free to correct any misapprehension the court has drawn from the testimony, a privilege not offered so far to any other witness.

Testimony resumes tomorrow with Chiranuch Premchaiporn taking the stand in her own defence.

Day Eleven – Free speech on trial on Thailand

“Prachatai exists to promote human rights”

The judge presiding over the trial of Chiranuch Premchaiporn, webmaster of Thailand’s independent online news portal, Prachatai, arrived late to court today. This gave regular observers, local and international activists, NGOs, media representatives and diplomatic staff great pause for concern.

The woman judge who took the bench this morning had not said a word in Chiranuch’s trial, leaving the irrepressible Judge Kampot firmly in charge. Today’s testimony was some of the trial’s most crucial, as Chiranuch Premchaiporn, facing 20 years for ‘computer crimes’, spoke in her own defence.

Chiranuch’s trial started with a panel of three lawyers in February, occasionally joined by three others who drifted in and out. Two more during this phase brings to eight the number of judges hearing just portions of the evidence rather than a coherent whole.

In the absence of trial transcripts of witness testimony in responce to questions from prosecution and defence, any citizen might wonder how a court would arrive at a fair and reasonable verdict. As there is a 98% conviction rate for lèse majesté crimes, perhaps they don’t expect to!

Chiranuch Premchaiporn, 44, graduated in journalism from the Faculty of Mass Communications at Thailand’s prestigious Thammasat University. After graduation, she became an advocate for people with HIV/AIDS with the Thai NGO, AIDS Access.

She joined Prachatai as its director in 2006 at the invitation of founder Jon Ungpakorn. At Prachatai, Chiranuch worked on website content development, administration, human resources and fundraising while liaising with government agencies and NGOs. She also coordinated citizen journalism workshops to provide media skills to the disenfranchised. “Prachatai exists to promote human rights,” Chiranuch said.

An editorial group was responsible for legal news content but Chiranuch monitored Prachatai’s public webboard. User posts would appear online in real time, giving immediacy to free and frank discussions.

Users made announcements, started conversation topics and exchanged ideas and opinions. There were no restrictions on differing opinions: human rights and human integrity were not undermined by censorship.

Under this open policy, those with strong opinions listened and compromised and conflicts were avoided using this approach.

Following the military coup d’etat in 2006 saw a tenfold increase in Prachatai’s webboard users. Comments began to degenerate into much conflict over Thailand’s political situation using far more aggressive language to express opinions.

Prachatai was forced to employ stricter measures to moderate the online forum. Netizen users were required to provide personal data and a valid email address was confirmed by Prachatai. Possibly illegal, inappropriate and offensive comments were deleted quickly by Prachatai staff and a host of volunteers composed of professionals from many different fields.

20 тИТ 30 thousand comments were posted daily, generated by 300 new topics every day which, in turn, led to 2,800 тИТ 2,900 replies.

Judge Kampot arrived in court during this comment and interrupted Chiranuch’s testimony to ask if she had acknowledged yet that the ten offending messages with which she is charged appeared on Prachatai. This fact has been dogged to death in court already and is without question but perhaps the learned judge felt he needed to hear it from the defendant.

Chiranuch replied that she was shown police documents which indicated the comments were posted to Prachatai but she personally had never even seen the comments before being charged with them.

Prachatai’s webmaster explained that each message to the webboard is numbered chronologically as it is posted. Unless the entire topic is deleted, comments remain unless deleted manually by Prachatai staff.

By this time, post-coup, Prachatai had received 1,119,000 comments to its webboard. Only 3% of this enormous total needed to be deleted for inappropriate content.

Chief censor, Aree Jivorarak, at Thailand’s ICT ministry arranged a meeting for ISPs and webmasters which was attended by Chiranuch. MICT asked their cooperation in removing content offensive to the monarchy, mailing all groups every day to ask for takedowns.

In the first three month period, MICT requested takedowns for 3,000 URLs. Only 25 were hosted by Prachatai, including the comments which are the subject of this trial. Many had already been deleted and Chiranuch immediately deleted the rest. Some were so dated even the 90-day log files had expired.

Chiranuch was summoned by the police to testify about these posts but was only shown the Prachatai URLs not the message content. On checking by IP address, she found these posts commented on the monarchy.

Chiranuch testified on a single message in the trial of webboard user ‘Bento’ which she had deleted from Prachatai. However, the chief government sensor testified the comment had been deleted by the ISP. ‘Bento’–Noppawan Tangudomsuk–was acquitted but Chiranuch was not told she was about to be arrested on the same ‘evidence’.

Meanwhile, the ISPs and webmasters asked the ministry and police to provide legal guidelines for which text constituted lèse majesté. Such guidelines have still not been provided by the Thai government.

Although Prachatai tightened procedures for monitoring and removal of offensive content, it was still possible for some to go unnoticed due to the sheer volume of postings every day. It would be interesting to know how many of these ‘dangerous’ posts were actually read by Prachatai users as none complained.

The Prachatai webboard was shut down in July 2010 due to the pressure of government censorship. Readers will remember that Prachatai was among the first websites to be blocked by the military when the rule of law was suspended using emergency powers from April 10 to December 22, 2010. Prachatai decided to fight and creating multiple roving URLs to continue to publish news no other Thai media would touch.

On cross-examination by the public prosecutor, Chiranuch stated that each of the ten messages remained on the Prachatai webboard for as little as a day or up to 20 days in one case.

Did the webmaster only remove postings at MICT’s request? She answered that, in most cases, the content had been removed well before MICT acted.

Chiranuch testified she bases her definition of lèse majesté not only on her own opinion but relies on the opinions of at least three other staff to safeguard her website.

Chiranuch’s trial is scheduled to resume Tuesday, October 11, 12, 13, and 14. These court days will include further defence witnesses including overseas experts. The trial will continue at Bangkok’s Criminal Court (San Aya) on Ratchadapisek Road near Lat Phrao MTR station, Exit 4. It is likely the courtroom venue will be changed so ask for docket number is 1167/2553 when you arrive in October.

Day Twelve: Free speech on trial in Thailand

Judge swamped, justice delayed


The third and final act in the trial of the webmaster of independent news portal Prachatai, Chiranuch Premchaiporn, was scheduled for four days this week with expert witnesses for the defence.

Chiranuch’s prosecution for ten pseudonymous comments to Prachatai’s public webboard alleged to be lèse majesté has been the subject of great international interest, both by media and foreign diplomats.

Thai government is seeking to expand its enforcement definitions for what actually constitutes computer ‘crimes’ to include third-party intermediary criminal liability.

A successful prosecution and a guilty verdict would enable government to prosecute such parties as web hosts such as Prachatai, ISPs and even search engines in effect chilling free speech on the Internet.

Chiranuch’s is the first such case to be subject to the benefits of a complete defence on this issue before Thai courts. Her verdict will have deep implications for freedom of the press and free expression in Thailand for the foreseeable future. It is also expected to bear implications for similarly profligate prosecutions by foreign repressive governments against their own citizens.

Observers of the trial of Chiranuch Premchaiporn hoped to see her case concluded at the close of this week and have a verdict before King Bhumibol’s birthday December 5. However, Themis, the ancient goddess of blind justice, appears to have been trumped by Mother Nature.

Readers in Thailand will be aware that there have been areas of extensive flooding in the capital. TV news reports over the weekend showed Rachadapisek more river than road with a backdrop of Thailand’s national courts.

The Thai Cabinet was considering declaring a flood holiday during this week’s final three workdays.

Presiding judge Kampot Rungrat was late to court this Tuesday morning because his Chao Phraya riverside home on Koh Kret, Nonthaburi was flooded despite two metres of sandbags. This made surrounding roads all but impassable with water levels expected to rise over the next days.

Judge Kampot only agreed to preside over today’s court session because Danny O’Brien, expert Internet witness for the defence, had travelled to Thailand from the United States for the second time to testify at great inconvenience and expence.

The interpreter provided by the courts of justice stated he was “not a professional” so translations into Thai were facilitated by an accredited and facile interpreter for the defence.

Despite the fact that Chiranuch herself told the court that further elaboration might be gained from Danny’s oral testimony, Judge Kampot ruled that the witness’ written submissions should be sufficiently explanatory. The judge was interested in current accepted legal liability in other countries though he said this may not be applicable in Thai law.

He was interested to hear the future testimony of Thai academic defence witnesses regarding webboard practices and usage when court resumes.

Although Cabinet was considering a flood holiday for the remainder of this week, Thai Parliament will cancel all its legislative sessions through Monday. Presumably, Thai courts will continue to grind exceeding fine except in Judge Kampot’s courtroom where justice has again ground to an abrupt halt.

Three further days of defence testimony will be heard Tuesday, February 14, 2012 and continue on February 15 and 16.

Although the public prosecutor claims he doesn’t “even know how to turn on a computer”, Judge Kampot has a Facebook page. In this long hiatus of justice delayed, readers may wish to ‘follow’ him.