When Mr Chaichana Mitrapant of Thailand’s Electronic Transactions Development Agency (ETDA) told an audience in Bangkok recently that public hearings and focus group discussions on amending the country’s controversial 2007 Computer Crimes Act (CCA) were ongoing, there was a murmur of surprise in the room.
Nobody had heard of the process. Not even top regional executives of the search engine giant Google Inc who were at the discussion at the Foreign Correspondents Club of Thailand.
The CCA’s Article 14 prohibits inputting obscene data, forged or false data likely to cause injury to another person, the public or national security; and data which constitute a criminal offense relating to national security or terrorism.
Article 15 extends criminal liability to Internet Service Providers that “intentionally support or consent to these illegal activities”.
Thus the CCA - enacted under a military regime - makes intermediaries liable. That means an Internet service provider or Website administrator can be jailed if someone else posts unlawful content. That is somewhat like holding the phone company responsible for something someone says on the phone.
The CCA has already been used to send a chill wind across cyberspace in Thailand. It is often used in conjunction with charges of Lèse majesté - causing offence to the monarchy. The law on that is Article 112 of the Criminal Code. Article 112 has sent more than just a chill; it has had a paralytic effect, choking off all but the most cautiously couched academic discussion of the role of the monarchy which lies at the heart of Thailand’s identity.
On the face of it, it is good news for the Internet community that the CCA is being reviewed. Even the venerable and conservative Bangkok Post weighed in on Jan 29, saying in an editorial that “The CCA, enacted by a rubber-stamp legislature under the military junta, is used as a political weapon.”
“It is unacceptable that a law designed to combat online crime is being used to provide even harsher punishment than that allowed by the nation's Criminal Code itself.”
“We can see problems associated with Article 14,” admitted Mr Chaichana, who is assistant director of the watchdog agency ETDA.
“It has been used inappropriately or not according to the purpose of the law. We need to strike a balance between the control of the state and freedom of speech.”
The CCA has been used not only to protect Internet users from everyday computer crimes like phishing, but also to block websites which provide political information and allow debates. The most prominent example is the legal case against the Director of the popular Prachatai.com, Chiranuch Premchaiporn.
Ms Chiranuch was prosecuted in 2009 under the CCA for not taking down fast enough, content deemed to be insulting to the monarchy. She was judged guilty in May 2012 but the verdict is still being appealed.
Critics acknowledge that a law against computer crime is required. The ETDA receives an average of two complaints a day about phishing sites - fraudulent websites designed to extract user name and password information from unsuspecting consumers mostly of banking services. The ETDA’s Thailand Computer Emergency Response Team is dedicated on a daily basis, to taking down sites that contravene the CCA.But the critics take issue with the vagueness of Article 14 in leaving “national security” open to interpretation - and the extension of liability to intermediaries.
A study by Thammasat University analysing cases under the CCA from July 2007 to December 2011, found that during that period more than 81,000 URLs had been banned and the most frequent content - about 75 per cent - concerned information and images deemed to insult and defame the royal family.
Prosecutions under the CCA soared from 32 in 2008, to 80 in 2009 and a high of 104 in 2010 - dropping slightly to 97 in 2011, the study reported.
The peaks coincided with political unrest and conflict in Bangkok in 2009 and 2010 essentially pitting royalists and conservatives against supporters of former prime minister Thaksin Shinawatra, thrown out of office in 2006 by a military coup. The unrest took place while the Democrat Party - now in opposition - was in power.
The country remains deeply divided over the issue of Mr Thaksin, who royalists see as a corrupt closet Republican and whose supporters see as a victim of the army-backed Bangkok royalist elites.
“Thailand’s 2007 Computer Crimes Act effectively muzzles those who want to express an honest opinion and 75 percent of websites shut down since it came into force have been because of so-called anti-monarchy content,” Sawatree Suksri, a lecturer at Thammasat University, said at the same discussion where Mr Chaichana spoke.
Mr Chaichana said public hearings and focus group discussions were being held to seek opinions on the amending the Act. Announcements had been made on TV and radio and also on the Internet and in print he said - but acknowledged more could be done in terms of informing the public and gathering opinion.
The process therefore, still remains rather opaque.
The CCA’s critics also say making intermediaries liable has cramped the development of the Internet in Thailand. According to Google, Inc for instance, only one per cent of content on the Internet is in the Thai language, which they say is unusual given that population-wise Thailand is the 20th largest country in the world.
The law stifles innovation, they say. Google executives say research has shown that many entrepreneurs and innovators who rely on exchanges of views and content online, are uncertain about operating under the shadow of the CCA.
“They are afraid to do risky things,” said Ms Ann Lavin, Google, Inc's Singapore-based head of Policy and Government Affairs for Southeast Asia.