Prachatai found guilty
Prachatai has been found guilty of national security crimes as webmaster of the online news Prachatai.com. Below is a summary of the verdict and you can read the full unofficial translation of the verdict here
Verdict in brief
Black Case number 1167/2553
The Criminal Court
30 May 2012
Between The Prosecutor The Prosecutor
Ms. Chiranuch Premchaiporn The defendant
Crime against the Computer Crime Act B.E 2550 (2007)
The Public Prosecutor filed a complaint that the defendant who is the webmaster of Prachatai.com intentionally supported or consented to the importation of the ten comments which are computer data and contained messages deemed to insult the King, Queen and the Heir-Apparent into the computer system under the defendant’s liability. These offences are National Security Crime and subject to punishment under Sections 14 and 15 of the Computer Crime Act as well as Section 91 of the Criminal Code.
The defendant denied the complaint.
The court has determined evidences submitted by both the prosecutor and the defendant and concluded that the ten comments insulted the King, Queen and the Heir-Apparent are subjected to the National Security Crime. There also was a process to import these comments on the Prachatai Webboard but the prosecutor has no evidence to show that the defendant imported or intentionally supported the importation of the ten comments into the computer system for which the defendant has liability. Accordingly, it could not be claimed that the defendant offended Section 14(3) of the Computer Crime Act by importing these comments into the computer system. At the same time, it could not
be claimed that the defendant intentionally supported these offences in the computer system the defendant is liable for. In terms of the defendant’s consent to abuse Section 141 according to Section 15 of the Computer Crime Act, there was no explicit explanation on the timeframe for how long the illegal comments must be in the computer system as well as a timeframe to notify the webmaster who acts as the intermediary between internet users to solve or take-down the inappropriate information. According to this, it could not be claimed that the defendant consented to the abuse under Section 14 of the Computer Crime Act and by taken his/her accountability immediately after the offended comments have been posted is also unjust for the intermediary. However, the webmaster could not claim that he/she does not know if there are offences under Section 14 existing in the computer system he/she is liable for or deny his/her duty as a webmaster to avoid the accountability and make the law non-mandatory. These would oppose the Spirit of the Law. The court believes that if the defendant paid attention and monitored the website as of the webmaster’s duty, the defendant should spend time to check, discover as well as take-down comments deemed inappropriate under Section 14 from the computer system he/she is liable for within the appropriate timeframe, or in other words, the timeframe that can expect the defendant to acknowledge the importation of unlawful comments. If the comments are maintained in the computer system for too long, it is likely that the dissemination of the comments will damage the stakeholders as well as National Security. It appeared that the nine comments listed in Document no. 23 – 31 existed on the Prachatai Webboard for 11, 1, 3, 2,
1 Section 14. If any person commits any offence of the following acts shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both: (1) that involves import to a computer system of forged computer data, either in whole or in part, or false computer data, in a manner that is likely to cause damage to that third party or the public; (2) that involves import to a computer system of false computer data in a manner that is likely to damage the country’s security or cause a public panic; (3) that involves import to a computer system of any computer data related with an offence against the Kingdom’s security under the Criminal Code; (4) that involves import to a computer system of any computer data of a pornographic nature that is publicly accessible; (5) that involves the dissemination or forwarding of computer data already known to be computer data under (1) (2) (3) or (4)
2, 1, 3, 2 and 1 day respectively. The existence of these comments deemed to be within an appropriate timeframe and being in line with the webmaster’ responsibility. As a result, it could not be claimed that the accused acknowledged the importation of the comment listed in Document no. 23 – 31 into the computer system he/she is liable for and so resulting in consent for the abuse of Section 14. For the last comment listed on Document no. 32, it appeared that the comment existed in the computer system under the accused liability for 20 days. In this connection, the court is of the opinion that the comment existed over the appropriate timeframe that the defendant could discover and also delete the inappropriate posting from the computer system under his/her liability. Thus, the defendant refrained from performing her duty in a timely manner which means the defendant consented to the importation of the information listed in document no.32 into the computer system under her liability. Accordingly, the importation of inappropriate information is unlawful according to Computer Crime Act B.E.2550 under the section 14 (3) so that the defendant as the webmaster also found guilty since the defendant consented to an offense under the section 14 within the computer system under her reliability.
In accordance with the defendant’s testimony during her witness hearing, the defendant testified that, after the military coup in 2006, the number of webboard users in the Prachatai website increased dramatically, while Prachatai applied Monitoring measures to the webboard, by calling for volunteers who are webboard members and at the same time assigned Prachatai officers to monitor the importation of information on Prachatai’s website. When volunteers found uncertain or inappropriate information, they could delete this information immediately without permission from the defendant. The court believes that it is part of the duty which the defendant had to carry out, but it is not enough. The defendant still had to carry out her duty not to allow offences under Section 14 within the computer system under her reliability.
According to the testimony of the defendant in the witness hearing, the defendant testified that the Prachatai website is a project under the Media for Community Education Foundation and its objective is to distribute the precise news and information especially for the promotion of human rights and the strengthening of democracy. The court accepts that freedom of expression and opinion is fundamental freedom which is ensured and protected in the Thai constitution, since freedom of expression and opinion reflects good governance and democratic values in that organization or country. The criticism from citizens both positive and negative is an opportunity to improve that country, organization or even ourselves. But when the defendant provided a platform for expression and opinion within the computer system under the defendant’s reliability, the defendant must have the duty to monitor any opinions or information that might affect the National Security and the rights and freedom of others which must be respected as well.
It is apparent that the defendant consented to import opinions or information, as in the document no. 32, into the computer system under the defendant’s reliability as the court determined above. Hence, the defendant cannot claim the right to freedom of expression and opinion to avoid accountability.
The court hands down the verdict that the defendant is found guilty according to Computer Crime Act B.E.2550 under Section 15 along with Section 14 (3) as accusation no.1.10, the defendant would be sentenced for one year and fined 30,000 baht. The defendant’s testimony during the witness hearing is useful for judging so it counts as a reprieve. The court reduces the sentence with one-third according to Section 78 of the Thai Criminal Code, so there still remains an eight months sentence and a 20,000 baht fine. Accordingly, it is not apparent that the defendant has been imprisoned before, and to give the opportunity to be a good citizen, imprisonment will be suspended for 1 year according to Section 56. If the defendant does not pay fine, the authority would follow the Section 29 and 30. Other charges and requests would be lifted