9/18/2019 Case | Freedom of Expression Documentation Center | น อ ลกฎหมายและค เส ภาพ   Reference witness examination, the Judge still had to do his own research and to decide for how many days he would allow the examination to take place. “If you want to testify about what The Judge then explained to the lawyers, the accused and trial observers that it’s not that the Court had to be convinced by what the witness had to say. After completing the had been discussed in the Parliament (during the drafting of CCA), you’d better submit a written statement, and then I can decide. If you do it orally, the prosecutor may express objection. It’d be easier if you simply submit a written statement to the plaintiff”.     Then the Judge explained to the prosecutor regarding what issues the witness was supposed to testify and asked if he would accept that. The prosecutor simply said, “it was up to Your Honor to adduce, I am fine with anything”.     Then, the Judge asked the witness to stand under his bench, not in the witness dock, and started to ask her name, background, position and the issues to testify. Ms. Sawatree said that she wanted to speak on issues concerning the right to freedom of expression of the people and liability of the intermediaries. General principle holds that intermediaries o webmasters should not be held liable, if the commission of the offence has been done by a third party, except that the intermediaries are aware of the commission in the first place And when the commission of an offence takes place, the intermediaries should be first notified by the officers who spot the illegal posts. Practically in USA, Canada, and some countries in Europe, intermediaries are allowed to cope with the illegal contents for up to 10-14 days since the day they are first informed. But reviewing Section 15 of CCA, one may find that there is no such a system of notification and no regulations concerning the liability of webmasters. (All detail was recorded in the docket, but not in witness examination report.)   Then, Ms. Sawatree stated her certification of the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, during the Human Rights Council, Seventeenth session, Agenda item 3 presented on 16 May 2011, which stipulates that intermediaries and webmasters should not be held liable for the offence committed by webboard users.     The prosecutor acknowledged the facts and then the Court asked for brining in the witness supposed to appear in the afternoon session to be immediately examined in the morning. Then, the Judge ordered adjournment of the session while waiting for the remaining witness.     14 February 2012 Examination of witness no. 7, Assist. Prof. Jittat Fakcharoenphol, lecturer, Department of Computer Engineering, Kasetsart University and ICT expert     Dr. Jittat Fakcharoenphol arrived at the Court around 11.15 and commenced on his testimony at around 11.30. His examination has been rescheduled to the morning at the instruction of the Court after Ms. Sawatree stated her certification of documentary evidence instead of being allowed to continue with witness examination. As a result, Dr. Jittat ha to rush from Kasetart University, his office, to the Courtroom.   Dr. Jittat, 34 years, is working as an Assist. Prof. in Department of Computer Engineering, Faculty of Engineering, Kasetsart University. He graduated with honor in computer engineering from Kasetsart University and got his master and doctorate degrees from the Department of Computer Science, University of California, Berkeley.     Dr. Jittat stated that he got involved with Prachatai website since he was interested in internet and social media. In 2006, he wrote an article concerning the management of opinions in online community, published in Open Online. And the webmaster team of Prachatai spotted his article and invited him to attend a seminar on how to manage opinions in webboards in 2008. And since the term of the Board of Directors terminated, and no other remaining members were a computer expert, he got invited to be part of the Board of Directors and Treasurer, later. He has been giving advice on Prachatai webboard , how to manage the opinions posted and general computer system.     The lawyer asked if there were any particular problems faced by Prachatai webboard then? Dr. Jittat said Prachatai webboard was run with a good system and based on help from volunteers recruited from the users. The volunteers had more power in the administration of the webboard than normal users and were able to hide any inappropriate posts. Then the webmaster shall make another decision whether to continue hiding the posts or not. However, the webmaster also monitored other unhidden posts as well. Volunteers were recruited to make the monitoring more prompt and effective. There were around 300-400 topics posted everyday, each of which might carry up to 5 or 30-40 comments, should they be popular.     In terms of how stringent the measures to manage the posts by the accused as Prachatai webmaster, the lawyer asked if the accused had ever sought the witness’s advice on ho the administration of the webboard should be? Dr. Jittat said that Prachatai was concerned about a sharp increase in topics posted and that monitoring might not be sufficient. So they came ask for his opinion to develop a system of administration. He suggested a “machine based learning system and processing with natural language” which functions just like spam mail filter. Certain words shall be screened and the system learned how to screen out inappropriate words and showed those filtered out terms to the webmaster. This would help to make the screening faster. Nevertheless, Prachatai webboard was closed down prior to the introduction of such a system.     The lawyer asked if Prachatai ever mentioned about an attempt to hire a staff member just to monitor the webboard 24 hours? Dr. Jittat said yes. But given the forbidden expense it was impossible. In addition, the number of topics posted seemed to have increase incessantly. There would still be a chance of error.     Then Dr. Jittat was handed over with Exhibit J23-32 to view and testified that he had never seen these statements before. As an ordinary user of the webboard, he found most of the posts in there were related to political debate. Then, the lawyer asked about how a website differs from a webboard? The Judge did not permit the question since it dealt with issues which have already been examined.     On technical issues, Dr. Jittat said that a hyperlink posted on the webboard can fetch contents from the server on the other end. Nevertheless, the data could be altered along the way and the same hyperlink accessed at different times may yield different contents. There is no guarantee that data on the server on the other end has not been altered. The Judge helped to summarize that the data (fetched by hyperlinks) is not stored in Prachatai webboard.     Regarding Thunderbird, Dr. Jittat explained that it is an email client developed by Mozilla Trust. It operates by accessing email boxes in the service providers and brings the emails over to the users’ computer. The Judge asked how could the connection between Thunderbird and email service providers be established? Dr. Jittat replied that the software shall connect to the email system and download all emails available to the users’ computers. It does not matter how the data had been transferred in the first place. This makes it possible for Thunderbird users to read their emails offline or may set the email client to download data automatically to make it available during the offline period. The lawyer aske if it is possible that some files could have been downloaded unintentionally to the users’ computers? Dr. Jittat said normally, our computers shall store either image or data files from the websites we have browsed to save time when we check the same websites out next time. But the cache files are stored temporarily. When it reaches a certain limit, the cache shall be deleted automatically. Still, the files deleted cab be restored using some Recovery Program.   Dr. Jittat was given an image in Exhibit J17 to view and was asked by the lawyer if the image could have been downloaded intentionally and stored in computer, or could it have https://freedom.ilaw.or.th/en/case/112#circumstance_of_arrest 23/26