Day Three – MICT’s legal advisor testifies: “Freedom has its limits.” (Day one and day two trial)
The third day for prosecution witnesses in the trial of Prachatai webmaster Chiranuch Premchaiporn opened in Bangkok’s Criminal Court Wednesday.
We have written that Chiranuch is facing 50 years on ten charges under Thailand’s draconian Computer Crimes Act. If convicted, Chiranuch could be sentenced to 50 years, five years on each count, but in fact the maximum she could serve is 20 years.
The second witness for the prosecution, Thanit Prapathanan, a legal advisor to Thailand’s ICT ministry since 2005, testified that he had personally seen all ten comments to Prachatai’s public webboard which resulted in Jiew’s charges. The postings and comments to this forum were made anonymously. Chiranuch is charged with lèse majesté because she failed to delete them promptly.
Thanit is designated a “competent official” under the CCA with sole responsibility for protecting Thailand’s monarchy from insult. Lèse majesté is considered a threat to national security.
Thanit received the Prachatai material from the first prosecution witness, MICT’s chief censor, Aree Jivorarak, in the form of documents, DVDs, VCDs and audio CDs for his review. He forwarded these to the Ministry of Justice for their comments and then sought a court order to block Prachatai.
The material included an audio CD of a speech made from the Redshirt stage by Darunee Charnchoensilpakul, nicknamed Da Torpedo, who received an 18-year sentence for lèse majesté. A comment to one of the posts included a hyperlink to this speech on a third-party site. Although the speech was never hosted on Prachatai, MICT is alleging Prachatai is also guilty of repeating its lèse majesté and included a police transcript of the speech in their evidence against Chiranuch.
MICT’s lawyer stated that any intermediary shares the same criminal liability as the poster. Creating a hub for people to communicate and share information made Prachatai liable for all its webboard’s users.
This statement alone reinforced Thai government’s mission in this trial—to intimidate webmasters and stifle free expression among netizens. Government draws its line in the sand but never tells netizens where it is so we never know when we are crossing into criminality.
Thanit expressed concern over defence cross-examination. However, the chief judge reassured him he could reserve his answers.
The lawyer stated he knew of public opposition to the Computer Crimes Act drafted by the ICT ministry and passed by the military coup’s legislature. He said he was aware that free speech was guaranteed by the Thai Constitution—no lesser laws may restrict that right. However, Thanit said that parts of the CCA did just that. He also said he knew that lèse majesté charges have been used to silence political opponents.
In the afternoon session, MICT’s Thanit said the computer law permits prosecution of Internet intermediaries. Such charges do not require any proof of intent to defame. Such content is criminal even if only momentary on the website.
Defence lawyers pointed out that the ICT ministry’s website itself linked to media hosting lèse majesté content. The witness stated that MICT could not delete content from third parties so was, therefore not liable for their content. This appears to contradict his statements of Prachatai’s liability for postings, comments and hyperlinks not their own.
Thanit clearly stated, however, that web hosts cannot be held criminally liable for hyperlinks. A website would only be charged if it refused to delete such links at government “request”.
He said, if a web forum is public and not moderated, it can easily violate the computer law. Webmasters knowingly take that risk if they do not censor their boards in a timely fashion. However, there is no time limit—when illegal content is posted, a webmaster is guilty even if such content in promptly removed.
The MICT lawyer stated that he assessed lèse majesté on the basis of the topic, the post and comments to the post when viewed as a whole.
Thanit said it was easier for MICT to prosecute Prachatai as “IP addresses can be manipulated and posters may be hard to find”.
One of the postings for which Chiranuch is charged was titled “Ratchadamnoen, Pantip and Jae Da”. (Pantip is a highly-regulated, moderated and self-censored web forum requiring users to sign their names and provide government identification. Ratchadamnoen was Pantip’s political forum which it closed due to user comments. Jae Da refers to Darunee, Da Torpedo.) The witness stated MICT regards any reference to Da Torpedo to be illegal!
Thanit stated “the uneducated” will believe the comment, “The Queen was behind the military coup.” When the defence asked how the Queen was defamed because 2006’s was regarded as a ‘good coup’. the witness replied, “Because the coup overthrew the government and Constitution.”
Contradicting the testimony yesterday by MICT’s chief censor, Thanit said he found no evidence banned books were sold by Prachatai.
The defence cited a December 2010 report from the iLaw Foundation which found websites hosting alleged lèse majesté content had increased from 900 in 2007 to 35,000 in 2010. The witness thinks their purpose is to abolish Thailand’s monarchy.
Today’s witness closed with a rather chilling statement: “Freedom has its limits.”
Chiranuch’s trial resumes Thursday, February 10, at Bangkok’s Criminal Court (San Aya), on Ratchadapisek Road opposite Soi 38, Lat Phrao MTR station. Chiranuch’s trial is in Courtroom 701 on February 10 &11 and 14-17. The case is certain to go overtime but another courtroom slot is unavailable before December.
Alleged NorPhorChorUSA webmaster Tantawut Taweewarodomkul, nicknamed Kenny, is also facing lèse majesté charges under Thailand’s Computer Crimes Act as well as similar Criminal Code charges.
Kenny has been held without bail since April 2010. NorPhorChor is an acronym for the United Front for Democracy Against Dictatorship, commonly known as the Redshirts. Tantawut’s trial will enter its second day Thursday, February 10 in Courtroom 906.
WE URGE ALL READERS TO SPEND AT LEAST ONE MORNING OR AFTERNOON SESSION TO SUPPORT JIEW AND KENNY AND TO STAND UP FOR FREE SPEECH.
WE LOVE JIEW! WE LOVE PRACHATAI!
DA IS FREE!
no one is going to be free or receive justice in thailand unless there is radical regime change and institutional restructuring at all levels – so we’d better move towards this direction than trying convince a bunch of biased judicial falange on the finer points of constitutional law…They would have already decided on the desired outcome.