30 May 2012

Alert

Court finds webmaster guilty of liability for online posts


Incident details

Fine, Sentencing

Chiranuch Premchaiporn, Web dissident
UPDATE: Computer crime laws belie Thai claim to modern society (CPJ, 31 May 2012)

(SEAPA/IFEX) - Bangkok, 30 May 2012 - A Thailand Criminal Court today found Ms Chiranuch Premchaiporn guilty of violating the Computer Crimes Act of 2007 for responsibility over third party comments made in an online forum, which were deemed defamatory to the monarchy.

Judge Kampol Rungrat sentenced Chiranuch, director of the online news website Prachatai, to a one year prison sentence and a 30,000 Thai Baht (approximately USD1,000) penalty for violating Section 15 of the CCA, which mandates website hosts to delete illegal content.

In handing down the verdict, the judge reduced the sentence by one third, or eight months imprisonment and a 20,000 Thai Baht fine, because the court found merit in Chiranuch's testimony during the trial.

Moreover, the judge suspended the sentence by one year, subject to good behaviour of Chiranuch and the fact that she has not been convicted of any prior crime. Accepting the verdict as "logical", Chiranuch told trial observers that "it was not good enough," saying that she expected an acquittal.

Intermediary responsibility

Based on an official summary distributed by the court, the guilty verdict was based on one post which had remained in the website for 20 days, which was deemed 'too long' by the judge.

The charges against Chiranuch were based on 10 posts in the online forum which violated section 112 of the Penal Code, prohibiting insults, threats and defamation against the king, queen, royal heir and regent.

As webmaster, Chiranuch was expected to have responsibility over the contents of the website; and to delete illegal content listed under section 14 of the CCA including lese majeste content.

The judgment said that although Chiranuch herself was not responsible for the offensive posts, she nevertheless had the responsibility to monitor content of the online forum, and to place adequate preventive measures to address these concerns.

The judgement, however, acknowledged that section 15 of the CCA did not define what was a 'reasonable time frame' for removing illegal content.

The verdict rejected as 'unfair' the prosecution's argument that the responsibility for taking down the posts began as soon as they were posted. The court said such responsibility began only after being flagged to the webmaster.

Of the 10 posts, the judge observed that deleting nine of the posts between one and 11 days was within the "reasonable period of time for the performance of duty of the defendant as the web master".

However, that one post had remained for 20 days meant that she 'did not perform her duty in a timely manner' and could be regarded that the webmaster has 'implicitly consented' to these posts.

Responsibility for freedom of expression

The judgement also refused to recognize the argument of using freedom of expression to gauge the responsibility of the defendant.

The court said that a webmaster of a site like Prachatai, which provided a public platform for discussion should 'equally protect' against violations of the rights of others and threats to national security.

Responding to the verdict, SEAPA executive director Ms Gayathry Venkiteswaran said it "carried serious implications" on the practice of the right freedom of expression in online forums by giving policing responsibility to intermediaries.

While expressing relief that Chiranuch received a light sentence, "the judgement sends a chilling message to service providers that they should not only monitor content of their sites but take full responsibility over their arbitrary judgements on what kinds of contents are 'safe' for public consumption," Gayathry said.

Gayathry added that the verdict should give a signal for the government to amend the law, particularly Section 15 to ensure that intermediaries will be given a fair and reasonable treatment as well as clear guidelines on its implementation.

Source:

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