9/18/2019 Case | Freedom of Expression Documentation Center | น อ ลกฎหมายและค เส ภาพ Around 9.50 am, Judge Kamphon Rungrat and another judge arrived. Judge Kamphon was clad in a polo shirt with pink collar and with his rope on top. The Judge informed the   Reference accused and her lawyers that his house was located in flood risk zone and deemed it necessary to rush to return home to look after his built-in furnished house which could be damaged by the floods. But since the accused insisted on continuing with the witness examination, it could be done so with another Judge to preside over. The accused insisted that witness examination of Mr. O’Brien should continue as scheduled, while other examinations can be rescheduled.     Mr. O’Brien, beginning at 10.00 am, testified in English through the interpretation by Mr. Saman Panklib, a court interpreter. The accused’s team also prepared their own interprete     Mr. O’Brien started by introducing himself and explained his working experience. At present, he is working with the CPJ and Electronic Frontier Foundation (EFF). Before, he was consultant to the US House of Senate giving them advice on internet law.     The interpretation went by very disruptively. As a result, Judge Kamphon Rungrat proposed to adjourn today’s witness examination and asked Mr. O’Brien to submit his written affidavit instead, since he deemed that given the problems in the interpretation, there was no use to continue the witness examination and it would not work in favour of the accused.   The accused insisted that the witness examination should continue since the witness had come from afar. But the Judge insisted also that it would not make it different between verbal or written testimonies. After their consultation, both the defence lawyers and the accused agreed to have Mr. O’Brien give his written testimony, since the documents had been prepared in both Thai and English already. The defence lawyer handed over the article written by Mr. O’Brien himself about an overview of internet system, principles concerning liability of intermediaries, and credibility of electronics evidence, and Mr. O’Brien acknowledged its authenticity and then submitted them to the Court.     And since during the time, Bangkok and its vicinity was greatly affected by the floods, and given difficulties in getting witnesses to testify, the remaining witness examination of three defence witnesses from 12-14 October 2011 have been rescheduled to 14 – 16 February 2012.     14 February 2012 Examination of witness no. 5, Ms. Sawatree Suksri, lecturer, Faculty of Law, Thammasat University and expert on computer crime law     Criminal Court, Ratchadapisek Rd., Courtroom no. 910   The accused and lawyers including Lawyer Theeraphan Phankhiri and Lawyer Anond Nampha arrived at the Court and Judge Kamphon Rungrat arrived in the courtroom around 9.50 am with another Judge. While the Judges arrived, the prosecutor was not in the Courtroom yet.     The Judge consulted with the defence lawyers concerning the order of witness examinations and issues to be adduced. Lawyer Theeraphan told the Court that there would be two witnesses in the morning session, the first of whom would be Ms. Sawatree Suksri, a law expert from Thammasat University, and two issues shall be adduced including her research on the content oversight of service providers and 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.     The Judge further asked if the issues shall be related to international standards, one of the defence witnesses, Mr. O’Brien, had given his written testimony on the issues. The Judge then proposed that the accused could submit an affidavit instead of having an oral witness examination if there was no objection from the prosecutor, and that would work i favour of the accused.   Lawyer Anond insisted that oral witness examination should continue fearing that some points could have been missed out on in the record of the Judge. The Judge then said “whatever you wanted me to record, you could just tell me. But if you speak too much and there is only one important point, then it will be useless.” The defence lawyers, the accused and Ms. Sawatree had to turn to consult with each other again.   At 9.58 am, another Judge has arrived.     Judge Kamphon reiterated that written testimony shall work more in favour of the accused, Lawyer Theeraphan and Ms. Sawatree then approached the Judges at the bench to explain that issues to be adduced were concerned with standards in USA and Europe and submitted one pager to the judges. The Judge did not get to read the paper, but asked it shall affirm criminality of expressions in general? The witness said no. The idea to be adduced was intermediaries should not be held liable. Their liability shall depend on circumstances, i.e., that they should have been notified and asked to remove any messages (prior to any other legal action against them). Then Lawyer Theeraphan explained about Exhibit L8, a research report on the impact of the enforcement of CCA, the iLAW Project.     As Ms. Sawatree was explaining about the intent of Section 15 of CCA, the Judge just cut it short saying that documentary evidence would be sufficient, should the prosecutor did not object and acknowledge it. It would work in favour of the accused this way and then the examination of the next witness could commence.     The accused insisted that the witness should be given a chance to explain the issues, while the witness had not begun her explanation, the Judge simply ordered the next witness be brought in for examination. Lawyer Anond told the Court that the next witness shall testify on measures to remove certain posts in Prachatai website and the Judge granted permission for the examination.     14 February 2012 Examination of witness no.6, Dr. Kittibhum Juthasamith, Director of Phusing Hospital, Sri Saket and Prachatai webboard user     The witness examination commenced around 10.05 am, Dr. Kittibhum Juthasamith, 48 years, was a specialized medical doctor and was working as Director of Phusing Hospital, Sri Saket. By then, the prosecutor was not in the Courtroom yet. The whole witness examination including the questions asked by the lawyers and the recording of the Judge, was conducted in haste.     Dr. Kittibhum stated that he began using Prachatai webboard since 2004 and has since then been checking out Prachatai website. The reason he chose to use Prachatai webboard was it was different from other webboards. It allowed readers with different political opinions to express themselves freely (the point was not recorded by the Court). Prachatai website also featured news different from other sources including news about justice, marginalized groups, cultural, social and political issues, not to be found in mainstream media.   https://freedom.ilaw.or.th/en/case/112#circumstance_of_arrest 21/26