Situational Report on Control and Censorship of Online Media, through the Use of Laws and the Imposition of Thai State Policies

Since the enforcement of the Computer Crime Act in July 2007, there have been 185 cases in relations to the CCA up to July 2010. There have been 117 court orders to block access to 74,686 URLs. Statistics on Cases Of 185 cases, most are based on the “content” on the internet such as defamation, fraud, lèse majesté and others. These cases are offences under section 14-16 of the CCA, and 128 cases fall under this category. 45 cases are related to the “system” such as unauthorised access to computer systems, conducting fraud using a computer system, and dissemination of unlawful computer programmes. These cases are offences under section 5-13 of the Act. In 12 other cases the researchers have no specific data.

Categorised by offences, the cases deal with: 1) defamation of third parties (54 cases); 2) fraudulent content (38 cases); 3) lèse majesté (31 cases); 4) pornography (12 cases); 5) merchandising illegal computer programmes (10 cases); 6) traditional computer crime (8 cases); 7) national security (6 cases); and 26 other cases which cannot be clearly categorised. The researchers notice that most cases are already offences under other laws, but when a computer system is involved, they are considered to be computer crimes. For example, Section 14 (1) of the CCA, which talks about the offences of fraud or importing false computer data into a system, is not intended to be used alongside laws related to defamation, but in practice we see a high number of defamation cases being charged under the CCA. There are numerous cases like this, although Section 423 of the Criminal Code and Section 328 of the Civil Code are already there to deal with defamation. Likewise, Section 14 (1) is used with cases of frauds on web boards despite the existence of Section 341 of the Criminal Code dealing with fraud. In practice, the CCA is often used along side other laws to file charges.

This shows that the content of the CCA gives space for a broad legal interpretation. Law enforcers often use the CCA in a confusing manner, which has an effect on online communications. Offences related to national security are stipulated in Section 14 (2) on importing false data that damages national security and Section 14 (3) on offences related to terrorism. It raises the question why, since offences under subsection (3) can be linked to clear offences written under the Criminal Code, it is still necessary to have subsection (2) which is written obscurely in the CCA. Section 14 (2) and (3) could be used as a political tool. Given the current political conflict, it is therefore likely that the number of cases related to national security would increase. Offences related to lèse majesté are often charged under Section 14 (2) and 14 (3). 25 out of 31 cases are also charged under Section 112 of the Criminal Code. Lèse majesté is an issue where all Thai administrations put great importance in prosecuting suspects. Within the legal framework of the CCA, there is the problem of vague wording. Therefore it could be said that in a large number of cases the CCA has been used as a political weapon to attack opponents. The offence on the dissemination of pornography is an offence under Section 14 (4) of the CCA and Section 287 of the Criminal Code. These two sections should have the characteristics of being a specific and a general law; therefore if dissemination is online, the CCA should be used alone since the CCA is the specific law, and the general law should not be used. However, in practice, it is found that police officials and public prosecutors use both charges at the same time in cases related to the dissemination of pornography online. This use of both charges raises the question whether this is a correct way to enforce the law.

Statistics on Censorship The right of the people to access news and information is written into the CCA with the societal expectation that the courts play an important role as a check and balance against the power of state officials. Section 20 states that relevant officials may file a petition together with evidence to the court for an order to halt the dissemination of computer information, rather than the earlier practice where officials could use their power to block websites immediately. The statistics show that in 2007 there was one court order to block 2 URLs. In 2008, there were 13 court orders to block 2,071 URLs. In 2009, there were 64 orders to block 28,705 URLs. And in 2010, there were 39 court orders to block 43,908 URLs. Altogether within three years after the enforcement of the CCA, there have been 117 court orders to block access to 74,686 URLs.

The reasons of the order for the blocking of websites can be ranked as follows: 1) lèse majesté content (57,330 URLs); 2) pornographic content (16,740 URLs); 3) information about abortion (357 URLs); 4) content related to gambling (246 URLs); 5) other reasons such as blasphemy, phishing/pharming (making fake websites), and even websites with content seeing the government differently on issues related to the dispersal of protesters thus were deemed to create chaos and division within the public. Apart from blocking websites using court orders under the CCA, state officials were also discovered to be using other methods, for example, sending informal letters to internet providers asking for cooperation. Most importantly, actions taken by officials under the Emergency Decree on Public Administration in Emergency Situations (Emergency Decree) show that websites that have been blocked under orders of the Centre for the Resolution of Emergency Situations (CRES) are in the tens of thousands.

There are many cases where the CRES has ordered the closure of websites by citing a range of IP addresses. Such actions will affect a large number of websites, including those that are lawful but happen to be in the range of the ban. It is also noted that the courts use extremely short periods of time to look at URLs before granting orders to block access to URLs. Of 117 orders, 104 received authorisation on the very same day to block 71,765 URLs. On average, 690 URLs are blocked daily.

The number of websites that were blocked doubled during the demonstrations to demand political rights. Apart from policies to block websites and prosecute internet users and internet service providers, the government also set up “Cyber Scout” units through the establishment of a Memorandum of Understanding between three ministries namely the Ministry of Information and Communication Technology, Ministry of Justice, and Ministry of Culture, to monitor the internet, and inform relevant agencies about inappropriate content. The military also has special units to create state media to counter content critical of the monarchy such as the Network of the Navy Quartermaster to Promote and Protect the Monarchy on the Internet.

Comparison of the Situation, Law, and Online Media in Other Countries When we compare the use of laws and policies in other countries on freedom of expression and access to information on the internet, we found that in Malaysia, there is no specific law directly related to online media. But governments can interpret certain existing laws to cover internet users. For instance, during a state of emergency, the executive has the power to pass laws that prohibit the discussion of issues related to citizenship and sovereignty. There are also laws related to confidential matters of the government, the Internal Security Act, and laws related to rioting. In China, for the security of the Chinese government and Communist Party, people can make virtually no comment or criticism of the government. There are policies and laws that prohibit the right to freedom of expression and systematically control the media through the monopoly of telecommunication services. There are regulations that require internet users and website creators to monitor content as well as having software to prohibit full access to information. In Germany, apart from laws protecting children and youth from pornography, the dissemination of extremist right and left wing ideology and unauthorised gambling are unlawful. However, the laws related to these issues are very specific and are not written in a broad manner. The court can be requested to investigate the use of state power on these matters. For the United States, there are high levels of freedom in online media especially with regard to political opinion. There are, however, two limitations which are: 1) the protection of children and youth from pornography and 2) the fear of terrorism. The government has regulations for surveillance of online information which includes specific laws to block websites and arrest large numbers of suspect.